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OEA/Ser.L/V/II.110 THIRD REPORT ON THE SITUATION OF HUMAN RIGHTS IN PARAGUAY CHAPTER VI RIGHT
TO FREEDOM OF EXPRESSION
1.
Respect for the right to freedom of expression is one of the central
concerns of the IACHR, and it has consistently dedicated a special chapter to
this issue in its reports on the human rights situation in different countries
of the hemisphere.[1] At
its 97th session, held in October 1997, the Commission established the Special
Rapporteurship on Freedom of Expression in the Americas.[2]
Mr. Santiago A. Canton, in his capacity as Special Rapporteur, was part of the
Commission’s delegation that visited the Republic of Paraguay July 28-30,
1999. The Special Rapporteur has
prepared this chapter, at the request of the IACHR, mainly on the basis of
information collected during the on-site visit and other information and
complaints received since. The Commission approved the text submitted and
decided to include it as part of this Report.
2. This
Chapter refers first to the fundamental importance of the freedom of expression
as a cornerstone of democracy and the rule of law.
Second, it refers to the protection accorded by current Paraguayan
legislation and international standards to those who exercise this right,
engaging in an analysis of various areas recognized to be favorable to the
development of full respect for the freedom of expression.
Third, an analysis is presented of the situation of the media, followed
by a chronology of the information received by the Rapporteur with respect to
the various problems that have arisen in connection with the freedom of
expression, especially with individuals who work with the media. Finally, a
series of conclusions and recommendations are offered.
B.
FREEDOM OF EXPRESSION AND THE RULE OF LAW
3.
Full recognition of the freedom of expression is a fundamental guarantee
for ensuring the rule of law and democratic institutions.
This has been recognized on several occasions by various sectors of civil
society, international organizations, and most of the states.
4.
The Inter-American Court of Human Rights has stated that: Freedom
of expression is a cornerstone upon which the very existence of a democratic
society rests. It is indispensable for the formation of public opinion. It is
also a conditio sine qua non for the
development of political parties, trade unions, scientific and cultural
societies and, in general, those who wish to influence the public. 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.[3]
5.
The freedom of expression includes the right of every person to seek,
receive, and disseminate information and ideas of all sorts.
Accordingly, this right has a dual dimension, both individual and social. In this regard, the Court has said of this dual dimension: It
requires, on the one hand, that no one be arbitrarily limited or impeded in
expressing his own thoughts. In that sense, it.... implies a collective right to
receive any information whatsoever and to have access to the thoughts expressed
by others.[4]
6.
The Heads of State and Government of the hemisphere, meeting at the
Second Summit of the Americas held in April 1998, in Santiago, Chile,
highlighted the importance of the freedom of expression in the hemisphere and
stated their support for the creation of the office of the Rapporteur for
Freedom of Expression within the IACHR. In the Declaration of Santiago, the
Heads of State and Government indicated: We
agree that a free press plays a fundamental role in this area and we reaffirm
the importance of guaranteeing freedom of expression, information, and opinion.
We commend the recent appointment of a Special Rapporteur for Freedom of
Expression, within the framework of the Organization of American States.[5]
7.
The plan of action of the Santiago Summit established, among its
fundamental objectives, strengthening the exercise of and respect for all human
rights and the strengthening of democracy. This includes the fundamental right
to freedom of expression and thought, through support for the activities of the
Inter-American Commission on Human Rights in this area, in particular the
recently-created Office of the Special Rapporteur for Freedom of Expression.
8.
For its part, the Declaration of Chapultepec, adopted at the Hemispheric
Conference on Freedom of Expression (Mexico City, 1994), sponsored by the
Inter-American Press Association (IAPA) and signed by 20 heads of state and
government, established basic principles on the freedom of expression.
9.
On November 26, 1999, the United Nations Special Rapporteur on Freedom of
Opinion and Expression, the Representative on Freedom of the Media of the
Organization for Security and Cooperation in Europe (OSCE), and the Special
Rapporteur for the Freedom
of
Expression of the IACHR adopted a joint declaration that establishes basic
guidelines to be followed to ensure full respect for the freedom of expression.[6]
10.
The American Convention on Human Rights establishes the right to the
freedom of expression at Article 13 in the following terms: 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.
11.
In October 2000, the Inter-American Commission on Human Rights, in
support of the Special Rapporteur for Freedom of Expression, adopted the
Declaration of Principles on Freedom of Expression.
(See attached.)
C.
SITUATION OF THE FREEDOM OF EXPRESSION IN PARAGUAY
12.
The preamble of the Charter of the Organization of American States
establishes that “representative democracy is an indispensable condition for
the stability, peace and development of the region.”
The concept of representative democracy is based on the principle that
political sovereignty vests in the people, and that in the exercise of that
sovereignty, the people chooses its representatives to exercise political power.
The representatives thus carry out a mandate from their constituents, who
aspire to have a dignified life, in freedom and democracy.
13.
In its 1998 Annual Report, the Commission included a chapter on the human
rights situation in Paraguay, analyzing the evolving democratic institutional
framework as of the overthrow of the Stroessner dictatorship in 1989.
This document highlighted the commitment expressed by president Gen. Andrés
Rodríguez to establish a society respectful of the law and human rights.
As a conclusion to that report, the Commission notes that “only through
the effective exercise of representative democracy can human rights be fully
guaranteed.”
14.
Protecting the freedom of expression is one of the elements ensuring the
consolidation of democratic institutions. This is especially relevant in
Paraguay, where democratic institutions are in the process of strengthening.
15.
First, the Special Rapporteur notes that in 1998, Paraguay did away the desacato
laws, thereby complying with the Report on the Compatibility of “Desacato”
Laws with the American Convention on Human Rights, issued by the Inter-American
Commission.[7]
In addition, while the Paraguayan Constitution guarantees the exercise of this
right, there are also laws and practices that limit the exercise of this right.
This chapter presents an analysis of the situation of freedom of
expression in Paraguay and some comments on principles that have yet to be
incorporated in the domestic legislation, and whose inclusion will considerably
bolster protection for the freedom of expression, in keeping with the provisions
of the American Convention on Human Rights and the Declaration of Principles on
Freedom of Expression.
1.
Current law
16.
Article 26 of the Paraguayan Constitution establishes the basic principle
in relation to the freedom of expression: Freedom
of Expression and of Press Free
expression and freedom of the press, and of the dissemination of thoughts and
opinions, without any type of censorship, and with no more limitations than the
ones established by this Constitution, are hereby guaranteed. In consequence, no
law is to be passed that restricts or makes these rights unfeasible. There shall
be no press crimes; they shall be considered common crimes committed through the
press. Everyone
has the right to generate, process, or disseminate information and to use any
legal, effective instrument to achieve these goals.
17. In
addition, the first part of Article 28, Chapter II, refers to the right to
information, when it states that: Every person has the right to receive accurate, responsible, and even-handed information....
18.
While Article 26 of the Constitution establishes a broad and unlimited
protection for the freedom of expression, the first part of Article 28 imposes a
requirement on the right to information that seriously hampers the freedom of
expression. The constitutional
qualifiers of information--“accurate, responsible, and even-handed,” are
contrary to Article 13 of the American Convention, which explicitly establishes
that the freedom of expression and information should not be subject to any
prior conditions. Both Article 13
of the Convention and the Declaration of Principles on Freedom of Expression,[8]
as well as Article 19 of the International Covenant on Civil and Political
Rights and Article 19 of the Universal Declaration of Human Rights refer to
freedom of expression, information, and opinion. The right protected in each of them is access to all
information, not only such information as can be considered accurate,
responsible, and even-handed.
19.
The Inter-American Court has referred to this issue in Advisory Opinion
OC-5/85 on Compulsory Membership in an Association Prescribed by Law for the
Practice of Journalism: The
two dimensions mentioned [individual and collective] of the right to freedom of
expression must be guaranteed simultaneously. One cannot legitimately rely on
the right of a society to be honestly informed in order to put in place a regime
of prior censorship for the alleged purpose of eliminating information deemed to
be untrue in the eyes of the censor.[9]
20.
The Rapporteur referred to this requirement in his 1999 report, in which
he expressed concern over limitations on freedom of expression in several
countries of the hemisphere. This
doctrine has precisely the opposite effect of what its promoters argue as the
basis for its application. In other
words, the search for truth in information is seriously limited when its free
flow is impeded as the result of an arbitrary value judgment.
In any event, under the international standards and the more advanced
case law, only information that proves to be both erroneous and produced with
actual malice may be sanctioned. Indeed,
in this case such a sanction must be the result of subsequent action, and in no
case may an effort be made to pre-condition it.[10]
1.a
Habeas Data
21.
The writ of habeas data is designed as the action establishing the right of all
persons to access to information about oneself or one’s property in an
expeditious and non-costly manner, whether it is contained in data bases, public
records, or private records, and, if necessary, to have it updated, rectified,
and/or amended.[11]
22.
The Constitution of Paraguay establishes this action in its Article 135: Every
person may have access to information and data about oneself, or one’s
property, appear in official or private records that are public, and to learn of
the use made of such information, and its purpose.
Every person may request of a judge with jurisdiction that such
information be updated, rectified, or destroyed, if erroneous or if it
unlawfully has a detrimental effect on one’s rights. 23.
Similarly, Article 136 provides: No
competent judge may refuse to hear the actions or remedies described in the
previous articles. If he does so without legal cause, he will stand trial, and
if appropriate, he will be removed from office. In
his ruling, the judge must also pass judgment on the responsibilities of those
officials who committed the illegal action, and if there is prima
facie evidence of the perpetration of a crime, he will order the suspension
or arrest of those found to be responsible as well as any appropriate preventive
measure aimed at ensuring a more effective compliance with these
responsibilities. Additionally,
if it falls within his jurisdiction, he will order the respective pretrial
inquest and will hear the opinion of the prosecuting attorney. If it does not
fall within his jurisdiction, he will refer the case files to a competent judge.
24.
The procedure for bringing this action in Paraguay is regular, in keeping
with the Code of Civil Procedure. According
to the information collected, from October 20, 1998 to March 31, 2000, a total
of 1,038 petitions were presented writs of habeas
data; none has been denied.
25.
In addition, the writ of habeas
data in Paraguay is exempt from the payment of judicial fees.
26.
The Rapporteur wishes to emphasize the progress that the establishment of
this action represents for Paraguayan society, while highlighting that Paraguay
is one of the few countries of the hemisphere that has complete legislation
regarding the writ of habeas data.
1.b.
Access to information in the hands of the government
27.
The right of access to information in the hands of the government is a
fundamental individual right, as it is one of the most effective instruments for
citizen oversight of the actions taken by the authorities, and for strengthening
democracies in the hemisphere.
28.
This right is contained in the provisions of Article 13(1) of the
American Convention on Human Rights, insofar as it establishes the freedom to
seek information. In addition, the Declaration of Principles on Freedom of
Expression expressly provides: 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.
29.
The Paraguayan Constitution, at Article 28 of Chapter II, On Liberty,
recognizes this right in the following terms: ... Public sources of information are free to all. The law shall regulate the modalities, time periods, and sanctions to which they are subject to ensure that this right is effective.
30.
While Article 28 of the Constitution establishes the general principle of
access to information in the possession of the state, there is no law that
regulates public access to information in the possession of the state.
In addition, no clear criteria are established for classifying the
information that is not public. As
the general principle is that information should be public, and since it is a
subject of such importance to society, the criteria for exceptions must be
explicitly established by law. The
Special Rapporteur supports the principles adopted by the non-governmental
organization Article XIX regarding legislation on access to information.
31.
The Special Rapporteur has said that guaranteeing people access to
information in the hands of the state is a mechanism for transparency, review,
and evaluation that enables citizens to learn about government policies and the
activities of public officials, which helps strengthen democratic institutions.
32.
The practices and values of a democratic society include having
procedures that guarantee citizens access to information in the possession of
the state, as a means of keeping a check on the public administration. Access to
information is one of the most effective mechanisms for fighting corruption and
impunity.
33.
In a representative system, public officials are accountable to the
citizens, who entrusted in them their political representation and the power to
decide on public matters. The
person in whom the right to information vests is the individual who delegated
the management of public affairs in the representatives.
In addition, the information that the state uses and produces is obtained
with funds from taxes paid by the citizens.
34.
In this regard, it is necessary to clearly establish the principle that
administrative acts should be public, and rapid and effective procedures should
be put in place to ensure that this right is effectively exercised.
In addition, the administrative obstacles that make it difficult to
obtain information should be eliminated, and easy-access, simple, and low-cost
(to the petitioner) systems for requesting information should be implemented.
1.c.
Defamation, Slander, and Libel
35.
As indicated, the right to freedom of expression and information is one
of the main mechanisms available to society for exercising democratic control
over those who are entrusted with matters of public interest.
Consequently, when the freedom of expression and information is
restricted, citizen oversight of public employees is hindered or limited, and
democracy is transformed into a system in which authoritarianism finds fertile
ground for imposing itself on the will of society.
36.
The Special Rapporteur wishes to highlight that Paraguay does not have
what are known as desacato laws in its legislation.
This is a major stride forward in Paraguayan legislation that is a model
for the other countries of the region. Desacato
laws criminalize offensive expression directed at public officials.[12]
37.
Nonetheless, the Special Rapporteur was informed of several provisions
that may well work to the detriment of the free exercise of the freedom of
expression.
38.
One of these is Article 151(3) of the same Code, which would define
criminal defamation in broad and vague terms indicating that expression must
“not exceed the bounds of acceptable criticism,” which could give rise to
interpretations restrictive of the freedom of expression.[13]
In seeking the protection of a democratic society, the free debate of ideas must
impose the least possible restrictions on freedom of expression, and the
protection of the reputation must be guaranteed exclusively by civil sanctions
in the case of a public official or public figure. In addition, the restrictions should be exceptional and
specifically set forth in the law.
39.
Similarly, Paraguayan legislation does not distinguish adequately between
public and private figures when addressing image, honor, or reputation of
persons.[14] The lack of such a distinction runs to the
detriment of research on and dissemination of information of public interest.
40.
Representative democracy requires that public officials, or all those who
have an interest in public affairs, be accountable to the men and women they
represent. The individuals who make up a democratic society delegate to
representatives the administration of matters of interest to the entire society.
Nonetheless, persons with a vested interest in these matters continues to
be society as a whole, which should have a broad right to monitor, with the
least possible restrictions, the conduct of public affairs by the
representatives.
41.
The need for complete and effective control over the management of public
affairs, as a guarantee of the existence of a democratic society, requires that
the individuals in charge of managing public affairs have a different protection
than that enjoyed by any private individual not involved in matters of public
interest.
42.
The Inter-American Commission has said: The
use of desacato laws to protect the
honor of public functionaries acting in their official capacities unjustifiably
grants a right to protection to public officials that is not available to other
members of society. This distinction inverts the fundamental principle in a
democratic system that holds the Government subject to controls, such as public
scrutiny, in order to preclude or control abuse of its coercive powers. If we
consider that public functionaries acting in their official capacity are the
Government for all intents and purposes, then it must be the individual and the
public’s right to criticize and scrutinize the officials’ actions and
attitudes in so far as they relate to the public office.[15]
43.
It has also established: Moreover,
the Commission notes that, contrary to the rationale underlying desacato
laws, in democratic societies political and public figures must be more, not
less, open to public scrutiny and criticism. The open and wide‑ranging
public debate, which is at the core of democratic society necessarily involves
those persons who are involved in devising and implementing public policy. Since
these persons are at the center of public debate, they knowingly expose
themselves to public scrutiny and thus must display a greater degree of
tolerance for criticism.[16] 44. An interpretation of Article 13 of the American Convention and of the doctrine just cited suggests the need to review mainly the laws whose purpose is to protect the honor of individuals (commonly known as slander and libel laws). On many occasions these laws are used to attack or silence any discourse considered critical of the public administration.
45.
In this respect, the American Commission has established that: The
sort of political debate encouraged by the right to free expression will
inevitably generate some speech that is critical of, and even offensive to those
who hold public office or are intimately involved in the formation of public
policy. A law that targets speech that is considered critical of the public
administration by virtue of the individual who is the object of the expression,
strikes at the very essence and content of freedom of expression.[17]
46.
And the Commission adds: particularly
in the political arena, the threshold of State intervention with respect to
freedom of expression is necessarily higher because of the critical role
political dialogue plays in a democratic society.[18]
47.
The criterion to be used, under the Declaration of Principles on Freedom
of Expression, is that protection of one’s reputation should be guaranteed
through civil sanctions alone, in those cases in which the offended person is a
public official or public or private figure who has voluntarily become involved
in matters of public interest. In
addition, in these cases, it should be proven that in disseminating news, the
journalist or reporter had the intent to inflict harm or had full awareness that
false news was being disseminated or conducted himself or herself with manifest
negligence in respect of the truth or falsity of the same. This position is
known as the doctrine of “actual malice.”[19]
48.
In addition, opinions that are not factual assertions in respect of
public figures must not be punished. In
this respect, the Commission has established that this is especially the case of
the political arena, where the criticism is often through value judgments or not
through statements based exclusively on facts.
In this regard, it may be impossible to demonstrate the veracity of the
statements, since no evidence can be offered as to value judgments.
The laws that criminalize such expression raise the possibility of one
who criticizes the government in good faith being sanctioned for his or her
criticism.
2.
Situation of the communications media and journalists
49.
The existence of a free press is one of the most important pillars of a
full democracy. Respect for the freedom of expression has been described as
an essential means of protection and development of democratic societies.
It must be highlighted that those who work in the media take the lead
where it comes to providing information and fostering public debate, which is so
necessary for strengthening our institutions.
50.
Over the last 20 years, citizens from all countries of the region have
left behind oppressive and authoritarian regimes to receive more open
governments chosen through elections. Nonetheless,
in order to achieve participatory and stable democratic development, not only
are a series of elections necessary, but also the development of other elements
particular to democratic societies, such as respect for and recognition of human
rights; independent and effective judiciaries and legislatures; a system of
political parties that facilitate fluid communication between citizens and their
leaders; a participatory civil society; and, above all, broad freedom of
expression based on free access to information to ensure the existence of a
citizenry well-informed so as to be able to make its decisions.
51.
Among the requirements for a stable and participatory democracy, the
freedom of expression is of paramount importance, since without it, it is
impossible to develop the other elements for strengthening democracy.
Hence, in several instances the freedom of expression has been considered
the cornerstone for the existence of a democratic society.
52.
This chapter will address the situation of the communications media,
especially what are called alternative or community radio stations and the
situation of journalists.
2.a
Community radio
53.
During its visit, the Special Rapporteur received and has continued
receiving information regarding the problematic situation affecting community
radio stations in Paraguay. According
to the information received, the vast majority of the radio stations that
operate in Paraguay have obtained their licenses based solely on economic
criteria. On several occasions the Rapporteur has said that the
assignment of radio and television frequencies should consider democratic
criteria that guarantee equal opportunity in access to them for all sectors of
society.[20]
Auctions that consider solely economic criteria are incompatible with democratic
government and with the right to freedom of expression and information
guaranteed in the American Convention on Human Rights.
54.
The Rapporteur has also learned of a new UNESCO initiative to seek
solutions that permit an understanding between the community and commercial
radio stations. This UNESCO
initiative is supported by the Office of the Rapporteur and includes the
participation of the International Association of Radio Broadcasting and the
World Association of Community Radio Broadcasters.
2.b
Situation of persons who work in the media
55.
The Rapporteur would like to expresses his concern over the situation
that some journalists are facing in Paraguay.
56.
Considerable information has been received on attacks on journalists.
The Rapporteur totally rejects such acts and reiterates to the Paraguayan
State its duty to prevent human rights violations and, once they occur, its duty
to investigate and punish the persons responsible.
57.
The Special Rapporteur received information on the failure to follow up
on the murder of journalist Santiago Leguizamón in April 1991. The
Special Rapporteur urges the Paraguayan authorities to speed up the effective
investigation into the assassination, and to punish the persons who turn out to
be responsible for this crime, as appropriate.
The Commission has said that the assassination of a journalist is the
most brutal means of clamping down on the freedom of expression.
This practice has two specific objectives. First, it seeks to eliminate
those journalists who undertake investigations into attacks, abuses,
irregularities, or unlawful acts of all sorts, carried out by public officials,
organizations, or private persons generally, to keep them from concluding their
investigations, to keep them from generating the public debate they deserve, or
in reprisal for such investigations. In addition, it is used as a means of
intimidation to send a clear message to all those engaged in investigative
tasks.
58.
The threats and attacks on persons who work in the media reported in
Paraguay are a matter of concern for the Rapporteur. The large number of reports
received is a clear sign of the difficult situation they face.
59.
Intimidation of journalists through verbal or written acts of aggression
and physical assaults on their person and/or property has an intimidating effect
on the entire society, as the primary and principal expression of this right is
being violently gagged. These mechanisms are used as part of an effort to
silence the criticism of governments, limit the debate and undermine the bases
of a democratic institutional framework.[21]
60.
Under international law, the State has the duty to ensure human rights.
Accordingly, the international responsibility of the states is triggered
whenever they fail to adopt the measures necessary to prevent violations of
fundamental rights, or, once the violations have been consummated, when they
fail to investigate, prosecute, and punish the persons responsible.[22]
In this respect, the Inter-American Court has said: The
State is obligated to investigate every situation involving a violation of the
rights protected by the Convention. If the State apparatus acts in such a way
that the violation goes unpunished and the victim’s full enjoyment of such
rights is not restored as soon as possible, the State has failed to comply with
its duty to ensure the free and full exercise of those rights to the persons
within its jurisdiction. The same is true when the State allows private persons
or groups to act freely and with impunity to the detriment of the rights
recognized by the Convention.[23]
61.
The Special Rapporteur expresses his concern over the information
received indicating that several journalists have suffered a direct negative
impact due to the climate of political instability experienced during the May
18, 2000 coup attempt against Paraguay’s democratic and constitutional order,
and other attacks following those events. The
following is some of the information received:[24]
62.
Some of the cases in which judicial or police actions were taken against
the press could constitute incitement to violence and therefore would not be
protected by Article 13 of the American Convention on Human Rights.
Article 13 of the Convention provides as follows in this respect: ... 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....
63.
In these cases, subsequent liability should be determined with respect
for due process of law as established in Paraguayan and international law.
64.
The Special Rapporteur reminds the authorities that one of the main
concerns of his Office is the use of the judicial system as a means of
intimidation in several countries of the hemisphere, by imposing imprisonment or
fines on journalists, forcing them to turn to the courts time and again and to
incur the costs, for their defense, that have a significant detrimental impact
on their activities. When this mechanism is used against journalists critical of
the authorities, the judicial system is being used as an instrument to limit the
freedom of expression, not as a mechanism for sorting out the conflicting
interests of the authorities and journalists.
65.
The Office of the Rapporteur urges the Paraguayan authorities to take the
necessary measures to prevent the journalists from being a target of attacks as
a result of the political situation and to protect them to ensure the right to
freedom of expression and information of all of Paraguay’s inhabitants.
66.
One of the Rapporteur’s main concerns is the information received,
which makes it clear that some media outlets are used as instruments for the
attainment of personal interests, not to inform society.
67.
During his visit, the Special Rapporteur received information on the
concern among independent journalists from press, radio, and television,
high-level government authorities, and representatives of civil society
organizations with respect to the grave polarization in the media.
It is argued that some media are used as tools to defend personal and/or
economic interests, without a commitment to the truth, to the detriment of
Paraguayan society’s right to information.
68.
The Special Rapporteur was able to verify the personal enmity between
different owners of media outlets and the reports from several sectors that
media outlets are being used as instruments to receive economic benefits, or to
favor certain political interests, and not as means for informing society.
In this respect, and in view of the serious nature of these accusations,
the Rapporteur reminds all those persons related to the media that according to
the provisions of principle number nine of the Declaration of Chapultepec,
adopted by the Inter-American Press Association and signed by several heads of
state and government of the hemisphere and thousands of citizens:
“The credibility of the press is linked to its commitment to truth, to
the pursuit of accuracy, fairness and objectivity and to the clear distinction
between news and advertising. The attainment of these goals and the respect for
ethical and professional values may not be imposed....”
D.
CONCLUSIONS AND RECOMMENDATIONS
69.
The Special Rapporteur wishes to highlight the positive development of
the Constitution including the regulation of the writ of habeas
data, and the establishment of the basic principle that sources of
information should be public. In
addition, there has been progress in the derogation of desacato
laws. Nonetheless, the Special
Rapporteur is concerned about certain laws and practices that persist under
Paraguayan democracy that limit the freedom of expression.
The following paragraphs present a summary of these concerns.
70.
The Special Rapporteur wishes to highlight the need to regulate in detail
and guarantee, in practice, the right of access to information in the possession
of the State as it is a tool for strengthening democracy, and as a means of
keeping tabs on the authorities so as to combat corruption.
71. In
addition, Article 28 of the Constitution could be used restrictively; it imposes
the requirement of truth on the right of all citizens to receive information,
and it recalls that any type of prior conditioning of the information or
expression, directly or indirectly, is a violation of Article 13 of the American
Convention.
72.
Similarly, there is a need to distinguish between public and private
persons when legislating on the provisions that protect honor (slander, libel,
and defamation). Incorporating this
distinction in Article 151 of the Criminal Code would avoid the possible use of
criminalization of opinions critical of public persons to legitimate a policy of
silencing public opinion.
73.
The Special Rapporteur points out the need to apply democratic criteria
to the distribution of licenses to radio and television stations.
Those allocations should not be based solely on economic criteria, but
also on democratic criteria that guarantee equal opportunity in gaining access
to them.
74.
The Special Rapporteur expresses his concern over the cases of attacks on
journalists. Of special concern is the alleged participation of the police or
military authorities in the detention of journalists and/or the shutdown of
media outlets.
75.
Finally, the Special Rapporteur wishes to express his concern with
respect to the propensity of the media to become political and economic tools of
the various power sectors to the detriment of its main function, which is to
inform society. In addition, the
Special Rapporteur wishes to remind those who exercise the freedom of expression
that the American Convention on Human Rights prohibits all propaganda for war
and any advocacy of national, racial, or religious hatred that constitutes an
incitement to violence. It is observed with concern that some of the complaints
received may fall into this category. 76. Based on the foregoing, the Special Rapporteur makes the following recommendations to the Paraguayan State: 1.
Adopt a law that regulates the right of access to information in the
possession of the State. 2.
Promote the distinction between public and private persons,
decriminalizing slander and libel against public figures. 3. Adopt the necessary measures to ensure the adequate distribution of radio frequencies, in keeping with democratic criteria. 4.
Take the necessary measures to protect the physical integrity of persons
who work in the media, investigating and punishing the persons responsible for
the violations to freedom of expression and for direct attacks on journalists.
[ Table of Contents | Previous | Next ] [1]
See IACHR, Report on the Situation of Human Rights in the Dominican
Republic, 1999. Third Report on
the Human Rights Situation in Colombia, 1999.
Report on the Situation of Human Rights in Mexico, and Second Report
on the Situation of Human Rights in Peru. [2]
The Inter-American Commission on Human Rights designated Argentine attorney
Santiago A. Canton as Special Rapporteur for Freedom of Expression; he
assumed the post on November 2, 1998. [3]
I/A Court H.R., Compulsory Membership in an Association Prescribed by Law
for the Practice of Journalism (Articles 13 and 29 of the American
Convention on Human Rights), Advisory Opinion OC-5/85, November 13, 1985,
para. 70. [4]
Id., para. 30. [5]
Declaration of Santiago, Second Summit of the Americas, April 18-19, 1998,
Santiago, Chile, in “Official Documents of the Miami and Santiago
Summits,” Vol. I, Office of Summit Follow-up, Organization of American
States. [6]
The Joint Declaration establishes as follows: ·
We recall that freedom of expression is a fundamental international
human right and a basic component of a civil society based on democratic
principles. ·
An independent and pluralistic media is essential to a free and open
society and accountable government. Respect for freedom of the media in our
Member States, although very different from country to country, leaves much
to be desired. ·
Certain States have continued to exert and allow impermissible
pressure on the media in their respective countries. The levels of
harassment might be different but the general aim is the same: to suppress
pluralism and open debate on issues of concern to citizens.
·
Freedom of expression is not only a fundamental human right in and of
itself, but it has ramifications for economic development as well. The media
has a “corrective” function by bringing to the public’s attention
corruption and inequitable practises. The absence of free media can lead to
economic stagnation and improper practises by both governments and
businesses. ·
Implicit in freedom of expression is the public’s right to open
access to information and to know what governments are doing on their
behalf, without which truth would languish and people’s participation in
government would remain fragmented. ·
The media should refrain from any advocacy of national, racial or
religious hatred that constitutes incitement to violence or to any other
similar action. ·
In many countries laws are in place, such as criminal defamation
laws, which unduly restrict the right to freedom of expression. We urge
States to review these laws with a view to bringing them into line with
their international obligations.
·
We affirm that States must ensure an effective, serious and impartial
judicial process, based on the rule of law, in order to combat impunity of
perpetrators of attacks against freedom of expression. [7]
IACHR, Report on the Compatibility of “Desacato” Laws with the American
Convention on Human Rights, OEA/Ser.L/V/II.88, Doc. 9 rev. (1995). The IACHR concluded that the so-called desacato laws are restrictive of the freedom of expression and
thought and therefore incompatible with Article 13 of the Convention. [8]
The Declaration of Principles on Freedom of Expression was approved by the
Inter-American Commission on Human Rights in October 2000. [9]
See, I/A Court H.R., Compulsory Membership in an Association Prescribed by
Law for the Practice of Journalism (Article 13 and 29 of the American
Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985.
Series A, No. 5, para. 33. [10]
See, Annual Report of the Inter-American Commission on Human Rights, Volume
III, Annual Report of the Special Rapporteur for Freedom of Expression, p.
31. [11]
See Declaration of Principles on Freedom of Expression. [12]
Principle 11 of the Declaration of Principles on Freedom of Expression
provides: “Public officials are subject to greater scrutiny by society.
Laws that penalize offensive expressions directed at public officials,
generally known as ‘desacato laws,’ restrict freedom of expression and
the right to information.” [13]
The Paraguayan State, in its observations on this report, stated as follows:
“On this point, the major responsibility is on the judges to lay down case
law that guarantees the freedom of expression, investigation, and
dissemination of information of public interest and to limit the misuse of
these criminal laws by public officials who allege violations of their
rights to honor and reputation.” [14]
On this point, the Paraguayan State highlighted that Article 151(4) provides
that “the affirmation or dissemination shall not be penalized when,
weighing the interests and the duty of inquiry of the author with the
circumstances, it is a proportional measure for defending public or private
interests.” The State further noted that “the admission of evidence of
the truth in this case is guaranteed, pursuant to section 5 of the same
article.” Nonetheless, these
measures are not sufficient for distinguishing between public figure and
private figure adequately to be limit to a minimum any restriction on the
freedom of expression. As
indicated in paragraph 38, one’s reputation should be protected through
civil sanctions alone in the case of public officials or public figures. In
addition, it may be impossible to prove the veracity of the statements,
since value judgments admit of no proof.
See paragraph 48 infra. [15]
IACHR, Report on the Compatibility of “Desacato” Laws and the American
Convention on Human Rights, OEA/Ser.L/V/II.88, Doc. 9 rev. (1995), pp. 210
to 223. [16]
Id. [17]
Id., pp. 218-219. [18]
Id., p. 222. [19]
Principle 10 of the Declaration of Principles of Freedom of Expression
establishes: “Privacy laws
should not inhibit or restrict investigation and dissemination of
information of public interest. The protection of a person’s reputation
should only be guaranteed through civil sanctions in those cases in which
the person offended is a public official, a public person or a private
person who has voluntarily become involved in matters of public interest. In
addition, in these cases, it must be proven that in disseminating the news,
the social communicator had the specific intent to inflict harm, was fully
aware that false news was disseminated, or acted with gross negligence in
efforts to determine the truth or falsity of such news.” [20]
Principle 12 of the Declaration establishes: “Monopolies or oligopolies in
the ownership and control of the communication media must be subject to
anti‑trust laws, as they conspire against democracy by limiting the
plurality and diversity which ensure the full exercise of people’s right
to information. In no case should such laws apply exclusively to the media.
The concession of radio and television broadcast frequencies should take
into account democratic criteria that provide equal opportunity of access
for all individuals.” [21]
The ninth principle of the Declaration of Principles on Freedom of
Expression establishes: “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.” [22]
Article 1(1) of the American Convention on Human Rights establishes: “The
States Parties to this Convention undertake to respect the rights and
freedoms recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms,
without any discrimination for reasons of race, color, sex, language,
religion, political or other opinion, national or social origin, economic
status, birth, or any other social condition.” [23]
I/A Court H.R., Case of Velásquez
Rodríguez, Judgment of July 29,1988, para. 176, and Declaration of
Principles on Freedom of Expression. [24]
These reports have been made mainly by the Sindicato de Periodistas de
Paraguay, an IFEX-member organization (International Freedom of Expression
Exchange) and by the Inter-American Press Association.
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