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E.
Right to Freedom of Expression 1.
International Human Rights Law
264.
The right to freedom of expression is stated in broad terms in
Article IV of the American Declaration of the Rights and Duties of Man[639]
and Article 13 of the American Convention on Human Rights.[640]
These instruments provide the following with respect to freedom
of expression:
American
Declaration Article
IV. Every person has the right to freedom of investigation, of opinion,
and of the expression and dissemination of ideas, by any medium
whatsoever.
American
Convention Article
13.1. Everyone has the right to freedom of thought and expression. This
right includes freedom to seek, receive, and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing,
in print, in the form of art, or through any other medium of one's
choice. 2.
The exercise of the right provided for in the foregoing paragraph
shall not be subject to prior censorship but shall be subject to
subsequent imposition of liability, which shall be expressly established
by law to the extent necessary to ensure:
a.
respect for the rights or reputations of others; or
b.
the protection of national security, public order, or public
health or morals.
3.
The right of expression may not be restricted by indirect methods
or means, such as the abuse of government or private controls over
newsprint, radio broadcasting frequencies, or equipment used in the
dissemination of information, or by any other means tending to impede
the communication and circulation of ideas and opinions. 4.
Notwithstanding the provisions of paragraph 2 above, public
entertainments may be subject by law to prior censorship for the sole
purpose of regulating access to them for the moral protection of
childhood and adolescence. 5.
Any propaganda for war and any advocacy of national, racial, or
religious hatred that constitute incitements to lawless violence or to
any other similar action against any person or group of persons on any
grounds including those of race, color, religion, language, or national
origin shall be considered as offenses punishable by law.
265.
In order to aid the Commission in the interpretation of these two
articles, the Office of the Special Rapporteur for Freedom of Expression
of the IACHR developed the Declaration of Principles on Freedom of
Expression.[641]
The Declaration, approved by the Commission during its 108th
period of sessions in October 2000, is a set of 13 principles detailing
the requirements of freedom of expression according to international law
and jurisprudence. Key
provisions of the Declaration of Principles include: 2.
Every person has the right to seek, receive and impart
information and opinions freely under terms set forth in Article 13 of
the American Convention on Human Rights.
All people should be afforded equal opportunities to receive,
seek and impart information by any means of communication without any
discrimination for reasons of race, color, sex, language, religion,
political or other opinions, national or social origin, economic status,
birth or any other social condition. 3.
Every person has the right to access to information about himself
or herself or his/her assets expeditiously and not onerously, whether it
be contained in databases or public or private registries, and if
necessary to update it, correct it and/or amend it. 4.
Access to information held by the state is a fundamental right of
every individual. States have the obligation to guarantee the full
exercise of this right. This principle allows only exceptional
limitations that must be previously established by law in case of a real
and imminent danger that threatens national security in democratic
societies. 5.
Prior censorship, direct or indirect interference in or pressure
exerted upon any expression, opinion or information transmitted through
any means of oral, written, artistic, visual or electronic communication
must be prohibited by law. Restrictions
to the free circulation of ideas and opinions, as well as the arbitrary
imposition of information and the imposition of obstacles to the free
flow of information violate the right to freedom of expression.
[. . . ] 8.
Every social communicator has the right to keep his/her source of
information, notes, personal and professional archives confidential. 9.
The murder, kidnapping, intimidation of and/or threats to social
communicators, as well as the material destruction of communications
media violate the fundamental rights of individuals and strongly
restrict freedom of expression. It
is the duty of the state to prevent and investigate such occurrences, to
punish their perpetrators and to ensure that victims receive due
compensation. 266.
The right to freedom of expression is also protected in various
other international human rights instruments, including Article 19 of
the Universal Declaration of Human Rights,[642]
Article 19 of the International Covenant on Civil and Political Rights,[643]
and Article 10 of the European Convention on Human Rights.[644]
A comparison of Article 13 of the American Convention with each
of the foregoing provisions shows “the extremely high value that the
Convention places on freedom of expression”[645]
and that “the guarantees contained in the American Convention
regarding freedom of expression were designed to be more generous and to
reduce to a bare minimum restrictions impeding the free circulation of
ideas.”[646]
267.
Respect for and protection of freedom of expression plays a
fundamental role in strengthening democracy and guaranteeing human
rights by offering citizens an indispensable tool for informed
participation. Weak public
institutions, official corruption and other problems often prevent human
rights violations from being brought to light and punished.
In countries affected by such problems, the exercise of freedom
of expression has become the main means by which illegal or abusive acts
previously unnoticed, ignored or perpetrated by authorities are exposed.
As the Inter-American Court of Human Rights stated: [F]reedom
of expression is a cornerstone upon which the very existence of a
democratic society rests. . . . It represents, in short, the means that
enable the community, when exercising its options, to be sufficiently
informed. Consequently, it
can be said that a society that is not well informed is not a society
that is truly free.[647]
268.
The Inter-American Court has emphasized that there are two
aspects to the right to freedom of expression: the right to express
thoughts and ideas, and the right to receive them.
Therefore, limitation of this right through arbitrary
interference affects not only the individual right to express
information and ideas, but also the right of the community as a whole to
receive all types of information and opinions.[648] 269.
The European Court of Human Rights, in a decision cited by the
Inter-American Court and the Inter-American Commission, has declared
that protection of freedom of expression must encompass not only
favorable information or ideas, but also those that “offend, shock or
disturb” because “[s]uch are the demands of that pluralism,
tolerance and broadmindedness without which there is no ‘democratic
society.’”[649]
Stifling unpopular or critical ideas and opinions restricts the
debate that is essential to the effective functioning of democratic
institutions. 270.
The exercise of freedom of expression and information without
discrimination by all sectors of society enables historically
marginalized sectors to improve their conditions.
The right to freedom of expression is also “essential for the
development of knowledge and understanding among peoples, that will lead
to a true tolerance and cooperation among the nations of the
hemisphere[.]”[650]
271.
As indicated in the introductory chapter on human rights of this
report, freedom of expression is not included in the list of rights that
are non-derogable in states of emergency in Article 27 of the American
Convention. However, any
restrictions on freedom of expression in the context of an emergency
situation must conform to the requirements of proportionality, scope,
and non-discrimination set forth in Article 27.[651]
In imposing such restrictions on the right to freedom of
expression, States should also bear in mind the importance of freedom of
expression in guaranteeing other fundamental human rights.
a.
Prior Censorship 272.
Article 13 of the American Convention expressly prohibits prior
censorship except for the regulation of access to public entertainments
for the moral protection of childhood and adolescence.[652]
The Inter-American Court has indicated that prior censorship
constitutes an extreme violation of the right to freedom of expression
because "governmental power is used for the express purpose of
impeding the free circulation of information, ideas, opinions or news [.
. . ] Here the violation is
extreme not only in that it violates the right of each individual to
express himself, but also because it impairs the right of each person to
be well informed, and thus affects one of the fundamental prerequisites
of a democratic society.”[653]
As discussed in the section on freedom of expression and
terrorism below, however, there could arise in an validly-declared state
of emergency some situations in which national security or public order
would permit limited censorship. 273.
Notwithstanding the explicit exception regarding the protection
of minors, measures designed to prevent the dissemination of expressions
violate the American Convention.[654]
As the Commission has stated: The
prohibition of prior censorship, with the exception present in paragraph
4 of Article 13, is absolute and is unique to the American Convention,
as neither the European Convention nor the Covenant on Civil and
Political Rights contains similar provisions.
The fact that no other exception to this provision is provided is
indicative of the importance that the authors of the Convention attached
to the need to express and receive any kind of information, thoughts,
opinions and ideas.[655] b.
Subsequent Liability 274.
Article 13(2) of the American Convention, while explicitly
prohibiting prior censorship,[656]
allows for subsequent penalties to be applied under limited
circumstances. Such penalties must be “expressly established by law to
the extent necessary to ensure: a. respect for the rights or reputations
of others; or b. the protection of national security, public order, or
public health or morals."[657]
275.
The requirement that a subsequent penalty be “expressly
established by law", also included in Article 10 of the European
Convention on Human Rights, has been interpreted by the European Court
of Human Rights to mean that the basis for subsequent liability must be
“formulated with sufficient precision to enable the citizen to
regulate his conduct: he must be able—if need be with appropriate
advice—to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail.”[658]
This does not mean that the subsequent penalty must specifically
be provided for in legislation passed by the legislature; it may be
contained in common law, administrative regulations or similar sources.
It must, however, be reasonably precise and accessible to the
public.[659]
276.
Two of the possible justifications for subsequent liability for
expressions are relevant to the context of fighting terrorism: public
order and national security. “Public
order" has been defined by the Inter-American Court of Human Rights
“as a reference to the conditions that assure the normal and
harmonious functioning of institutions based on a coherent system of
values and principles.”[660]
The Court has also stated that: [T]hat
same concept of public order in a democratic society requires the
guarantee of the widest possible circulation of news, ideas and opinions
as well as the widest access to information by society as a whole.
Freedom of expression constitutes the primary and basic element
of the public order of a democratic society, which is not conceivable
without free debate and the possibility that dissenting voices be fully
heard.[661] 277.
Subsequent liability can be based on “national security” if
"its genuine purpose or demonstrable effect is to protect a
country's existence or its territorial integrity against the use or
threat of force or its capacity to respond to the use or threat of
force, whether from an external source, such as a military threat, or an
internal source, such as incitement to violent overthrow of the
government."[662]
The application of the concepts of public order and national
security in practice will be discussed further in the section on the
right to freedom of expression and terrorism. 278.
With respect to the requirement of "necessity," the
Inter-American Court of Human Rights has interpreted this to mean that a
subsequent penalty is more than just "useful,"
"reasonable" or "desirable."[663]
Rather, the government must show that such a penalty is the least
restrictive of possible means to achieve the government's compelling
interest.[664]
The penalty "must be justified by reference to governmental
objectives which, because of their importance, clearly outweigh the
social need for the full enjoyment of the right Article 13
guarantees."[665]
Moreover, the provision
"must be so framed so as not to limit the right protected by
Article 13 more than is necessary.
. . . [T]he restriction must be proportionate and closely
tailored to the accomplishment of the legitimate governmental objective
necessitating it."[666]
This is an extremely high standard and any provisions imposing
subsequent liability for the exercise of freedom of expression must be
carefully examined using this proportionality test in order to prevent
undue limitations of this fundamental right. c.
Confidentiality of Sources 279.
Freedom of expression is understood as encompassing the right of
journalists to maintain the confidentiality of their sources.
It is the social communicator’s right not to reveal information
or documentation that has been received in confidence or in the course
of research. Professional
confidentiality allows journalists to assure sources that they will
remain anonymous, reducing fears they may have of reprisals for
disclosing information. As
a result, journalists are able to provide the important public service
of collecting and disseminating information that would not be made known
without protecting the confidentiality of the sources.
Confidentiality, therefore, is an essential element of the work
of the journalist and of the role society has conferred upon journalists
to report on matters of public interest.[667]
The European Court of Human Rights has recognized the importance
of the protection of journalistic sources as "one of the basic
conditions for press freedom [.]"[668]
The European Court stated: Without
such protection, sources may be deterred from assisting the press in
informing the public in matters of public interest.
As a result the vital public-watchdog role of the press may be
undermined and the ability of the press to provide accurate and reliable
information may be adversely affected.
Having regard to the importance of the protection of sources for
press freedom in a democratic society and the potentially chilling
effect an order of source disclosure has on the exercise of that
freedom, such a measure cannot be compatible with Article 10 (Article
10) of the Convention unless it is justified by an overriding
requirement in the public interest.[669] 280.
The Inter-American Commission on Human Rights has also indicated
that the protection of sources is a part of the general guarantee of
press freedom when it approved the Declaration of Principles on Freedom
of Expression.[670]
It should be emphasized that this right does not constitute a
duty, as the social communicator does not have the obligation to protect
the confidentiality of information sources, except for reasons of
professional conduct and ethics.[671] d.
Access to Information 281.
As stated earlier, the right to freedom of expression includes
both the right to disseminate and the right to seek and receive ideas
and information. Based on
this principle, access to information held by the State is a fundamental
right of individuals and States have the obligation to guarantee it.[672]
In terms of the specific objective of this right, it is
understood that individuals have a right to request documentation and
information held in public archives or processed by the State, in other
words, information considered to be from a public source or official
government documentation. 282.
"To guarantee freedom of expression without including freedom of
information would be a formal exercise, denying both effective
expression in practice and a key goal which free expression seeks to
serve."[673]
The right to freedom of information is closely related to the
principle of transparency in the administration of government
activities. In a democracy,
the State is a vehicle for ensuring the common good, deriving its powers
from the consent of the governed. In
this context, the owner of the information about public administration
is the individual who has delegated the management of public affairs to
his or her representatives. The
principle of transparency requires governments to play the role of
service-provider, furnishing all duly requested information that has not
been temporarily classified as exempt from the exercise of this right.[674] 283.
Without the information that every person is entitled to, it is
clearly impossible to exercise freedom of expression as an effective
vehicle for civic participation or democratic oversight of government
management. Lack of
effective oversight “gives rise to conduct that runs counter to the
essence of a democratic State and opens a door to wrongdoing and
unacceptable abuses.”[675]
284.
As a fundamental component of the right to freedom of expression,
access to information must be governed by the "principle of maximum
disclosure."[676]
In other words, the presumption should be that information will
be disclosed by the government. Specifically,
as noted in the chapter on the right to personal liberty and security,
information regarding individuals arrested or detained should be
available to family members, counsel and other persons with a legitimate
interest in such information.[677] 285.
Limited restrictions on disclosure, based on the same criteria
that allow sanctions to be applied under Article 13, may be included in
the law. The burden of
proof is on the State to show that limitations on access to information
are compatible with the inter-American standards on freedom of
expression.[678]
As in the case of subsequent restrictions on expressions, the
most often-invoked rationales for limiting access to information in the
context of fighting terrorism will be public order and national
security. The specific
content of such restrictions will be discussed in the section of this
chapter on freedom of expression and terrorism. 286. The restrictions must be expressly defined in the law and "necessary to ensure:
a. respect for the rights or reputations of
others; or b. the protection of national security, public order, or
public health or morals."[679]
This means that not only must the restriction relate to one of
these aims, it must also be shown that the disclosure threatens "to
cause substantial harm to that aim"[680]
and that "the harm to the aim must be greater than the public
interest in having the information."[681]
This is essentially the proportionality test enunciated above in
the section on subsequent liability for expressions.
Whenever information is denied based on the foregoing analysis,
an opportunity for independent review of the decision should be
provided.[682]
287.
An additional aspect of the right to access to information is
"a presumption that all meetings of governing bodies are open to
the public."[683]
This presumption is applicable to any meeting in which
decision-making powers are exercised, including administrative
proceedings, court hearings, and legislative proceedings.[684]
Any limitations on openness of meetings should be subject to the
same requirements as the withholding of information.[685]
288.
Finally, the Johannesburg Principles on National Security,
Freedom of Expression and Access to Information,[686]
which the Commission, like other international authorities, considers to
provide authoritative guidance for interpreting and applying the right
to freedom of expression in light of considerations of national
security,[687]
confirm that access to information dictates that "[a]ny restriction
on the free flow of information may not be of such a nature as to thwart
the purposes of human rights and humanitarian law.
In particular, governments may not prevent journalists or
representatives of intergovernmental or non-governmental organizations
with a mandate to monitor adherence to human rights or humanitarian
standards from entering areas where there are reasonable grounds to
believe that violations of human rights or humanitarian law are being,
or have been, committed."[688]
Access to information also dictates that journalists have access
to conflict areas, disaster sites and other such locations unless to
give them such access would pose a "clear risk to the safety of
others."[689]
e.
Habeas Data 289.
In addition to the general right to access to information in the
hands of the government, every person has the right to access to
information about himself or herself, whether this is in the possession
of a government or private entity.[690]
Often called the right to habeas
data, this right includes the right to modify, remove, or correct
such information due to its sensitive,[691]
erroneous, biased, or discriminatory nature.[692]
The right to access to and control over personal information is
essential in many areas of life, since the lack of legal mechanisms for
the correction, updating or removal of information can have a direct
impact on the right to privacy, honor, personal identity, property, and
accountability in information gathering.[693]
290.
In recent years, recourse to the action of habeas
data has become a fundamental instrument for investigation into
human rights violations committed during past military dictatorships in
the Hemisphere. Family
members of disappeared persons have used habeas
data actions to obtain information concerning government conduct, to
learn the fate of disappeared persons, and to exact accountability.
Thus, these actions constitute an important means to guarantee the
"right to truth."[694] 291.
With respect to the relationship between the right to the truth
and Article 13(1) of the American Convention, the Inter-American
Commission on Human Rights argued before the Inter-American Court in the
Barrios Altos case that: [T]he
right to truth is founded in Articles 8 and 25 of the Convention,
insofar as they are both “instrumental” in the judicial
establishment of the facts and circumstances that surrounded the
violation of a fundamental right. It
also indicated that this right has its roots in Article 13(1) of the
Convention, because that article recognizes the right to seek and
receive information. With
regard to that article, the Commission added that the State has the
positive obligation to guarantee essential information to preserve the
rights of the victims, to ensure transparency in public administration
and the protection of human rights..[695]
292.
In addition, the action of habeas
data imposes certain obligations for entities that process
information: the obligation to use the data for specific, explicitly
stated objectives, and the obligation to guarantee the security of the
data against accidental, unauthorized access or manipulation.
In cases where entities of the state or the private sector obtain
data improperly and/or illegally, the petitioner must have access to
that information, even when classified, so that individuals have control
over data that affects them. The
action of habeas data as a
mechanism for ensuring the accountability of security and intelligence
agencies within this context provides a means to verify that personal
data has been gathered legally. The
action of habeas data
entitles the injured party, or his family members, to ascertain the
purpose for which the data was collected and, if collected illegally, to
determine whether the responsible parties are punishable.
Public disclosure of illegal practices in the collection of
personal data can have the effect of preventing such practices by these
agencies in the future.[696]
293.
In order for the action of habeas
data to be effective, the administrative hurdles that complicate or
frustrate the obtention of information must be eliminated, and simple,
easily accessible systems enabling individuals to request information
inexpensively must be put in place.
The result, otherwise, would be to establish a formal mechanism
that, in practice, would not facilitate access to information. 294.
As in the case of access to information generally, any
restrictions preventing the exercise of the right to habeas
data must meet the standards of necessity and proportionality.[697]
Under most circumstances, individuals exercising the action of habeas
data should not be required to indicate why the information is being
requested. The mere
existence of personal data in public or private records is ordinarily a
sufficient reason in itself for the exercise of this right.[698]
295.
The habeas data writ
has acquired even greater significance with the emergence of new
technologies. Widespread
use of computers and the Internet has meant that the State and private
sector can gain rapid access to a considerable amount of information
about people. It is
therefore necessary to ensure that there are specific channels for rapid
access to information that can be used to correct or modify any
incorrect or outdated information contained in electronic databases.
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[639]
American Declaration, supra
note 63. [640]
American Convention on Human Rights, supra
note 61. [641]
Declaration of Principles on Freedom of Expression, in Basic
Documents, supra
note 13, at 189. [642]
Universal Declaration of Human Rights, supra
note 65. [643]
International Covenant on Civil and Political Rights, supra
note 66. [644]
European Convention on Human Rights, supra note 137.
Although the OAS member states are not parties to this
instrument, it nevertheless constitutes a pertinent comparative
reference concerning the international protection of the right to
freedom of expression. The jurisprudence of the European Court of
Human Rights interpreting Article 10 is also useful to inform the
interpretation of Article 13 of the American Convention in areas which
have not yet been addressed or fully developed in the inter-American
system. However, the higher value placed on freedom of expression in
the inter-American system must also be taken into account.
[645]
Advisory Opinion OC-5/85, supra
note 152, para.
50. [646]
Advisory Opinion OC-5/85, supra
note 152, para. 50. [647]
Advisory Opinion OC-5/85, supra
note 152, para. 70. [648]
Advisory Opinion OC-5/85, supra
note 152, paras. 30-32. [649]
Eur. Ct. H.R., Handyside v. United Kingdom, Judgment of December 7,
1976, Ser. A Nº 24, para. 49. See
also I/A Court H.R., Olmedo
Bustos et. al
Case ("Last Temptation of Christ"), Judgment of
February 5, 2001, Series C Nº 73, para. 69;
IACHR, Annual Report 1994, Report
on the Compatibility of Desacato Laws with the American Convention on
Human Rights, OEA/Ser.L/V/II.88., Doc. 9 rev (1995), 197,
204-205. [650]
Declaration of Principles on Freedom of Expression, supra
note 641, Preamble. [651]
For a discussion of derogation under inter-American human rights
instruments, see supra Part
II(B), paras. 49-52. [652]
See American Convention on
Human Rights, supra note 61, Article 13(4). [653]
Advisory Opinion OC-5/85, supra
note 152, para. 54. [654]
Olmedo Bustos et al. Case, supra
note 649, para. 70. [655]
Case 11.230, Report Nº 11/96, Francisco Martorell (Chile), Annual
Report of the IACHR 1996 (regarding ban on entry into circulation and
distribution of a book that was allegedly defamatory), para. 56. [656]
With the exception provided for in Article 13(4) of the American
Convention. [657]
American Convention on Human Rights, supra
note 61, Article 13(2). [658]
Eur. Court H.R., Sunday Times v. United Kingdom, Judgment of April 26,
1979, [659]
See, e.g., Id., paras.
49-53 (finding that a principle formulated in common law but not
previously applied to a case with similar facts was reasonably
foreseeable). See also Eur.
Court H.R., Rekvényi v. Hungary, Judgment of May 20, 1999, Reports of
Judgments and Decisions 1999-III, p 423, para. 34 (stating that the
level of precision required depends on the content of the instrument
in question, its subject matter, and the number and status of those to
whom it is addressed, and finding that a constitutional provision
containing vague terms was sufficiently precise when read in
conjunction with complementary laws and administrative regulations);
Eur. Court H.R., Hashman and Harrup v. United Kingdom, Judgment of
November 25, 1999, Reports of Judgments and Decisions 1999-VIII, p 1,
paras. 29-43 (finding that the interference with freedom of expression
was not compatible with Article 10 of the European Convention because
the definition of the offense was overly vague and therefore not
adequately “prescribed by law”). [660]
Advisory Opinion OC-5/85, supra
note 152, para. 64. See also
supra Part II(B), para. 55
(discussion on contrast of concept of public order with the civil law
concept of "ordre public"). [661]
Advisory Opinion OC-5/85, supra
note 152, para. 69. [662]
The
Johannesburg Principles on National Security, Freedom of Expression
and Access to Information (November 1996), available
in http://www.article19.org/docimages/511.htm, last visited 11
August 2002 [hereinafter
Johannesburg Principles], Principle 2(a).
For a discussion regarding the authoritative nature of the
Johannesburg Principles, see infra note 687.
See also
Kate Martin and Andrzej Rzeplinski,
Principles of Oversight and Accountability, in
the Public Interest: Security Services in a Constitutional Democracy,
Project of the Helsinki Foundation for Human Rights, Warsaw, Poland,
in cooperation with the Center for National Security Studies,
Washington, DC, January 6, 1998. [663]
Advisory Opinion OC-5/85, supra
note 152, para. 46. [664]
Advisory Opinion OC-5/85, supra
note 152, para. 46. [665]
Advisory Opinion OC-5/85, supra
note 152, para. 46. [666]
Advisory Opinion OC-5/85, supra
note 152, para. 46. [667]
IACHR, Annual Report 2000, Vol. III, Report
of the Office of the Special Rapporteur for Freedom of Expression,
[hereinafter 2000 Special Rapporteur Report] OEA/Ser.L/V/II.114, Doc.
20 rev., p. 24. See also
Felipe Fierro Alvídez, El
derecho y la libertad de expresión en México, debates y reflexiones
(The law and freedom of expression in Mexico, debates and reflections),
Revista [668]
Eur. Court H.R., Goodwin v. United Kingdom, Judgment of March 27,
1996, Reports of Judgments and Decisions, Nº 7 1996-II, p.483, para
39. [669]
Goodwin v. United Kingdom, supra
note 668, para. 39. [670]
See Declaration of
Principles on Freedom of Expression, supra
note 641, Principle 8. [671]
See 2000 Special Rapporteur
Report, supra note 667, at
24. [672]
See Declaration of
Principles on Freedom of Expression, supra
note 641, Principle 4; See also
Report of the Special Rapporteur on the protection and promotion of
the right to freedom of opinion and expression, Mr. Abid Hussein, UN
doc. E/CN.4/1999/64, 29 January, 1999. The UN Special Rapporteur on
the protection and promotion of the right to freedom of expression
stated that the right to seek and receive information "imposes a
positive obligation on States to ensure access to information,
particularly with regard to information held by Government in all
types of storage and retrieval systems--including film, microfiche,
electronic capacities, video and photographs--subject only to such
restrictions as referred to in article 19, paragraph 3, of the
International Covenant on Civil and Political Rights." Id.,
para. 12. [673]
Toby Mendel, Freedom of
Information as an Internationally Protected Right (2000), available
at http://www.article19.org/docimages/627.htm. [674]
See IACHR, Annual Report
2001, Vol. II, Report of the Office of the Special Rapporteur for
Freedom of Expression [hereinafter 2001 Special Rapporteur Report],
OEA/Ser.L./V/II.114, Doc. 5 rev. 1, p.72; 2000 Special Rapporteur
Report, supra note 667, at
18. [675]
See Alicia
Pierini et al., Habeas Data: Derecho a la Intimidad (Habeas
Data: The Right to Privacy),
Editorial Universidad
(Buenos Aires 1999), at 31. [676]
Article XIX, The Public's Right to Know: Principles on Access to
Information Legislation (June 1999), available in
http://www.article19.org/docimages/1113.htm [hereinafter Freedom of
Information Principles], Principle 1. Article XIX is a global
non-governmental organization dedicated to promoting freedom of
expression and access to official information. Its Freedom of
Information Principles have been used widely by international
organizations and NGOs. See,
e.g. IACHR, Annual Report
1999, Vol. III, Report of the Office of the Special Rapporteur for
Freedom of Expression [hereinafter 1999 Special Rapporteur Report],
OEA/Ser.L/V/II.111, Doc. 3 rev., Vol. III, p.88; Commission on Human
Rights Resolution 2001/47, U.N. Commission on Human Rights, 57th
Sess., Supp. Nº 3, at 209, E/CN.4/RES/2001/47 (2001),
preamble. [677]
See discussion, supra
Part III(B), para. 122. [678]
See, eg, Johannesburg
Principles, supra note 662,
Principle 1(d). [679]
American Convention on Human Rights, supra
note 61, Article 13(2). [680]
Freedom of Information Principles, supra
note 676, Principle 4. [681]
Freedom of Information Principles, supra
note 676, Principle 4. [682]
Freedom of Information Principles, supra
note 676, Principle 5. [683]
Freedom of Information Principles, supra
note 676, Principle 7. [684]
See Freedom of Information
Principles, supra note 676,
Principle 7. [685]
See Freedom of Information
Principles, supra note 676,
Principle 7. [686]
Johannesburg Principles, supra
note 662. [687]
The Johannesburg Principles constitute a set of voluntary principles
drafted by a committee of international experts on human rights and
media law, and are frequently invoked by the UN Commission on Human
Rights (see, e.g., Commission on Human Rights Resolution 2002/48, UN
Commission on Human Rights, 58th Sess., UN Doc. E/CN.4/RES/2002/48
(2002), Preamble; Resolution 2001/47, UN Commission on Human Rights, supra
note 676), the UN Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression (See,
e.g., Report of the Special
Rapporteur, Mr. Abid Hussain, pursuant to Commission on Human Rights
resolution 1993/45, UN Commission on Human Rights, 52nd
Sess., E/CN.4/1996/39, 22
March 1996, para. 4.), the UN Special Rapporteur on the
independence of judges and lawyers (See,
e.g., Report of the Special
Rapporteur on the independence of judges and lawyers, Mr. Param
Cumaraswamy, Addendum, Report on the mission to Peru, UN Commission on
Human Rights, 54th Sess., E/CN.4/1998/39/Add.1, 19
February 1998, introduction.) and the Special Representative of
the Secretary-General on human rights defenders (See,
e.g., Report submitted by
Ms. Hina Jilani, Special Representative of the Secretary-General on
human rights defenders in accordance with Commission resolution
2000/61, UN Commission on Human Rights, 57th Sess,
E/CN.4/2001/94, 26
January 2001, para. 14). [688]
Johannesburg Principles, supra
note 662, Principle 19. [689]
Johannesburg Principles, supra
note 662, Principle 19. [690]
Declaration of Principles on Freedom of Expression, supra
note 641, Principle 3. [691]
“Sensitive information” is understood as anything having to do
with the private life of the person. [692]
See Pierini
et al., supra
note 675, at 16. [693]
See 2001 Special Rapporteur
Report, supra note 674, at 75. [694]
See, e.g.,
I/A Court of H.R., Barrios Altos Case (Chumbipuma
Aguirre et al. v. Peru), Judgment of March 14, 2001, Series C Nº
75. [695]
Id., para. 45. [696] See Victor Abramovich and Christian Courtis, El acceso a la información como derecho, 10 Cuadernos de Análisis Jurídico, 197, 206 (Escuela de Derecho, Universidad Diego Portales, Santiago, Chile 2000). [697]
See discussion supra
para. 286. [698]
See Miguel Angel Ekmekdjian,
Derecho a la Información: Reforma Constitucional y Libertad de
Expresión, Nuevos Aspectos, Ediciones Depalma, Buenos Aires
(1996) p.114. |