National Case Law on Freedom of Expression, Lecture notes of Law

Download National Case Law on Freedom of Expression and more Lecture notes Law in PDF only on Docsity! Original: Spanish National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights This book corresponds to chapter V of the 2016 Annual Report of the Office of the Special Rapporteur for Freedom of Expression approved on March 15, 2017 by the Inter-American Commission on Human Rights. Edison Lanza Special Rapporteur for Freedom of Expression INTRODUCTION Introduction | 7 Inter-American Commission on Human Rights | IACHR INTRODUCTION 1. Pursuant to its mandate, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) monitors and documents in its annual reports the intervention of the region’s justice system in matters of freedom of expression. In this report, the Office of the Special Rapporteur presents a compilation of different judgments handed down over the past four years by national high courts that represent progress at the domestic level or enrich the regional doctrine and jurisprudence, while incorporating the inter-American standards in support of their decisions. 2. As in other annual reports, this type of analysis aims to contribute to a positive dialogue between the bodies of the system and the national courts, with the conviction that sharing different experiences leads to a virtuous circle of mutual learning. 3. Indeed, the Inter-American Court and the Commission have repeatedly acknowledged that all of the national courts—regardless of their ranks and hierarchies—play an important role in the development and implementation of regional human rights standards. According to the Court’s interpretation, the local justice systems not only operate as a guarantee of the rights of individuals in particular cases; through their decisions, they can also broaden and strengthen the content of the constitutional norms and national laws connected to these rights, and therefore broaden and strengthen the content of the international instruments themselves, such as the American Convention. The bodies of the system have similarly emphasized that national judges have a significant role in the process of implementing international human rights law in the domestic legal system.1 4. This compilation was put together starting with the cases that have been highlighted and documented by the Office of the Special Rapporteur in its annual reports for the 2013 – 2016 period. The criterion used for the selection of the judicial decisions summarized in this chapter was that they represent progress at the domestic level, either because they ensure the protection of the freedom of expression of the persons directly involved in the specific case, and/or because they set forth legal guidelines that incorporate and develop the inter-American standards in the national sphere. 5. The report includes case law from ten countries (Argentina, Brazil, Canada, Colombia, Costa Rica, United States, Mexico, Panama, Dominican Republic, and Uruguay). Of particular note is the work of the high courts of Argentina, Colombia, Mexico, and 1 IACHR. Annual Report 2012. Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter III (Domestic Case Law on Freedom of Expression). OEA/Ser.L/V/II.147.Doc.1. March 5, 2013. Para. 3. Chapter 1 Case Law on the Importance, Function, and Scope of Freedom of Expression in Democratic Systems | 11 Inter-American Commission on Human Rights | IACHR CASE LAW ON THE IMPORTANCE, FUNCTION, AND SCOPE OF FREEDOM OF EXPRESSION IN DEMOCRATIC SYSTEMS 10. The Inter-American legal framework grants a robust and broad scope to the right to freedom of expression. The doctrine and jurisprudence established by the Inter- American Commission and the Inter-American Court of Human Rights based on the American Convention, the American Declaration, and the Inter-American Democratic Charter, have helped to spur significant regulatory progress in the region in recent decades. They have also strengthened the intervention of the hemisphere’s justice systems when it comes time to act in favor of protecting this right. 11. The fundamental role of freedom of expression that the bodies of the Inter-American Human Rights System have recognized has been addressed extensively by the high courts of the region which, in turn, have enriched and developed the emerging judicial discourse on the inter-American standards. 12. For instance, on June 20, 2013, in admitting unconstitutionality action 29/2011 filed by National Human Rights Commission [Comisión Nacional de Derechos Humanos] (CNDH) to challenge an article of the Criminal Code of Veracruz, the Supreme Court of Mexico held that freedom of expression and the right to information are “central to the constitutional and democratic rule of law” and are “fundamental pillars.”2 The high court underscored the dual dimension of these rights, and held that “they enjoy a public, collective, or institutional aspect that makes them basic components in the proper workings of a representative democracy.” It emphasized that “freedom of expression is a preferential right, as it serves to guarantee the realization of other rights and freedoms.” The Court also referred to the interrelationship and interdependence of freedom of expression and other human rights. It held that “having full freedom to express, gather, disseminate, and publish information and ideas is indispensable, not only as an essential means of self-expression and self- creation but also as a premise for the ability to fully exercise other human rights — the right of association and peaceful assembly with any lawful aim, the right of 2 Suprema Corte de Justicia de la Nación de México (SCJN). June 20, 2013. Invalida SCJN Artículo 373 del Código Penal del Estado de Veracruz; Suprema Corte de Justicia de la Nación de México (SCNJ). Acción de Inconstitucionalidad 29/2011. Judgment of June 20, 2013. Available at: http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=132774; See also, Suprema Corte de Justicia de la Nación de México (SCJN). Contenido de la versión taquigráfica de la sesión pública ordinaria del pleno de la Suprema Corte de Justicia de la Nación. June 20, 2013. 12 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE petition, and the right to vote and be voted for—and as a functional element that determines a country’s democratic quality of life.” 13. In 2014, these conclusions were reaffirmed by the First Chamber of the Supreme Court of the Nation of [Primera Sala de la Suprema Corte de Justicia de la Nación] Mexico in the judgment handed down on February 7 of that year, in which it ruled direct amparo [petition for a constitutional remedy] 3123/2013 groundless. That petition sought to protect the honor and reputation of a public servant in view of the mass email distribution of criticism of his performance as the academic coordinator of a state university.3 On May 20, 2015, the Supreme Court again ruled similarly by declaring the unconstitutionality of an article of the Criminal Code of Chiapas that established the so-called offense known as halconeo, or acting as a “lookout,” and made it punishable by prison to obtain and disclose confidential or reserved information from the public security forces or armed forces for a number of purposes.4 The Court held that “the rights to freedom of expression and access to information not only protect freedoms necessary for the personal autonomy of individuals but also are meant to protect and guarantee a public forum for political deliberation.” 14. The Chamber of Criminal Cassation of the Supreme Court of Colombia [Sala de Casación Penal de la Corte Suprema de Justicia de Colombia] expressed similar considerations in its July 10, 2013 decision to acquit journalist Luis Agustín González, the director of the newspaper Cundinamarca Democrática, of the crime of defamation [injuria].5 In this case, upon considering the extraordinary petition for cassation filed by the journalist’s defense attorney, the Court exhaustively examined the function of freedom of expression in its political dimension. Citing the case law of the country’s Constitutional Court,6 the judgment underscored the importance of freedom of expression as a pre-condition for effective social participation, the improvement of public policies, and the guarantee of robust discussion on matters of general interest. It held that freedom of expression “promotes socio-political stability, by providing a safety valve for social dissent […] protects the political minorities that are active at a given time, preventing them from being silenced by prevailing or majority forces […] helps shape public opinion on political matters and the consolidation of a properly informed electorate.” The Chamber of Criminal Cassation of the Supreme Court of Colombia thus concluded that the “profound” constitutional and international protection of freedom of expression “is justified precisely because of those lofty goals of solidifying participatory democracy.” 3 Primera Sala de la Suprema Corte de Justicia de la Nación de México (SCJN). Amparo Directo en Revisión 3123/2013. Judgment of February 7, 2014. Available at: http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=156633&SinBotonRegresar =1 4 Primera Sala de la Suprema Corte de Justicia de la Nación de México (SCJN). Amparo en revisión 492/2014. Judgment of May 20, 2015. Available at: http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=167949 5 Corte Suprema de Justicia de Colombia. Sala de Casación Penal. Casación sistema acusatorio Nº 38.909. Judgment of July 10, 2013. Available at: http://flip.org.co/resources/documents/c4ab6f8aa7b923cc81bf7d99e4da4e93.pdf 6 The judgment quoted sentence T-391 of 2007 of the Corte Constitucional. Chapter 1 Case Law on the Importance, Function, and Scope of Freedom of Expression in Democratic Systems | 15 Inter-American Commission on Human Rights | IACHR receive, and disseminate” ideas and information of all kinds. 15 The Court reaffirmed the inter-American standards and maintained that both dimensions “must be guaranteed simultaneously in order to ensure the proper effectiveness of the right to freedom of thought and expression.” It added that, “The expression and dissemination of thought and information are indivisible, such that a restriction on opportunities for dissemination directly represents a limit on the right to express oneself freely. This has repercussions of various kinds, on many levels, but especially within the sphere of what we call the media.” 22. On April 5, 2016, the Supreme Court of Uruguay adjudicated the first of a set of actions challenging the constitutionality of the Audiovisual Communication Services Law, ruling in accordance with the case law of the Inter-American Court that article 13 of the Convention must be interpreted under a two-part standard: the democratic aspect and the dual dimension.16 Accordingly, it held that “Through the ‘democratic standard,’ the Inter-American Court proposes that freedom of expression is a value that, if lost, jeopardizes the operation of the essential principles for the existence of a democratic society. The protection of the right to express one’s ideas freely thus becomes fundamental for the full enjoyment of all other human rights. In fact, without freedom of expression full democracy does not exist, and without democracy, the sad history of the hemisphere has demonstrated that everything from the right to life to the right to private property is seriously endangered.” 15 S uprema Corte de Justicia de la Nación de México (SCJN). June 20, 2013. Invalida SCJN Artículo 373 del Código Penal del Estado de Veracruz; Suprema Corte de Justicia de la Nación de México (SCNJ). Acción de Inconstitucionalidad 29/2011. Judgment of June 20, 2013. Available at: http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=132774 16 Suprema Corte de Justicia de Uruguay. IUE 1-18/2015. Directv de Uruguay Limitada c/ Poder Legislativo. Acción de inconstitucionalidad. Judgment No. 79 of April 5, 2016. CHAPTER II CASE LAW ON ENTITLEMENT TO FREEDOM OF EXPRESSION AND ITS DUAL DIMENSION 20 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE 26. Another characteristic of freedom of expression that the Court and the Inter- American Commission have emphasized is their dual dimension. On numerous occasions, the inter-American case law has stated that freedom of expression has an individual dimension, consisting of the right of each person to express his or her own thoughts, ideas, and information; and a collective or social dimension, consisting of society’s right to seek and receive any information, to learn about the thoughts, ideas, and information held by others, and to be well-informed.20 The doctrine and jurisprudence of the system has indicated that both dimensions are interdependent and equally important, and therefore one cannot be diminished by invoking the preservation of the other. 27. Consistent with the above, when the Supreme Court of Argentina handed down the aforementioned October 23, 2013 judgment in the case of Grupo Clarín SA et al. v. National Executive Branch, et al./ action for a declaratory judgment, it held that, in its individual aspect “understood in this way—as a faculty of self-determination, self- realization—the exercise of freedom of expression allows for almost minimal state regulatory activity, which would only be justified in those cases in which that freedom adversely affects the rights of third parties (article 19 of the National Constitution).”21 Therefore, “in its collective dimension—an aspect that is especially promoted by the challenged law—freedom of expression is a necessary instrument to guarantee freedom of information and the formation of public opinion.” As such, “from this point of view, freedom of expression is a cornerstone of the very existence of a democratic society.” The Supreme Court of Uruguay ruled similarly on April 5, 2016, in adjudicating the previously cited unconstitutionality action.22 20 I/A Court H.R. Case of Kimel v. Argentina. Merits, Reparations, and Costs. Judgment of May 2, 2008 Series C No. 177. Para. 53; I/A Court H.R. Case of Claude Reyes et al. v. Chile. Merits, Reparations, and Costs. Judgment of September 19, 2006. Series C No. 151. Para. 75; I/A Court H.R. Case of López Álvarez v. Honduras. Merits, Reparations, and Costs. Judgment of February 1, 2006. Series C No. 141. Para. 163; IACHR. Arguments before the Inter-American Court in the case of Herrera Ulloa v. Costa Rica. Transcribed in: I/A Court H.R. Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations, and Costs. Judgment of July 2, 2004. Series C No. 107. Para. 101.1 a); I/A Court H.R. Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations, and Costs. Judgment of July 2, 2004, Series C No. 107. Para. 108; I/A Court H.R. Case of Ivcher Bronstein v. Peru. Merits, Reparations, and Costs. Judgment of February 6, 2001. Series C No. 74. Para. 146; I/A Court H.R. Case of Ricardo Canese v. Paraguay. Merits, Reparations, and Costs. Judgment of August 31, 2004, Series C No. 111. Para. 77; I/A Court H.R. Case of “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile. Merits, Reparations, and Costs. Judgment of February 5, 2001. Series C No. 73. Para. 64; I/A Court H.R. Compulsory Membership in an Association prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5. Para. 30; IACHR. Annual Report 1994. Chapter V: Report on the Compatibility of "Desacato" Laws with the American Convention On Human Rights. Title III. OEA/Ser. L/V/II.88. doc. 9 rev. February 17,1995. Available at: https://www.cidh.oas.org/annualrep/94eng/chap.5.htm; IACHR. Report No. 130/99. Case of No. 11.740. Víctor Manuel Oropeza. Mexico. November 19, 1999. Para. 51; IACHR. Report No. 11/96, Case No. 11.230. Francisco Martorell. Chile. May 3, 1996. Para. 53. 21 Corte Suprema de Justicia de la Nación Argentina. Grupo Clarín AS y otros c/Poder Ejecutivo Nacional y otros/ acción meramente declarativa. Judgment of October 29, 2013. 22 Suprema Corte de Justicia de Uruguay. IUE 1-18/2015. Directv de Uruguay Limitada c/ Poder Legislativo. Acción de inconstitucionalidad. Judgment No. 79 of April 5, 2016. CHAPTER III CASE LAW ON THE ADMISSIBILITY OF LIMITATIONS TO FREEDOM OF EXPRESSION: GENERAL FRAMEWORK Chapter 3 Case Law on the Admissibility of Limitations to Freedom of Expression: General Framework | 25 Inter-American Commission on Human Rights | IACHR order for subsequent liability to be established as a limit to freedom of expression, it must meet several requirements: a) it must correspond to previously established grounds of liability; b) there must be an express and exhaustive definition of those grounds in the law; c) the aims pursued when imposing it must be legitimate, and d) those grounds of liability must be necessary in a democratic society to ensure the aforementioned aims. Any interference that fails to meet any of these requirements constitutes a violation of freedom of expression.” 34. In examining the scope of article 13.2 of the American Convention, the Argentine Supreme Court [Corte Suprema de Justicia de la Nación] held that “any restriction, penalty, or limitation to freedom of expression must be interpreted restrictivel[y].”29 Along these lines, it further held that “[a]ny prior censorship exercised over freedom of expression is subject to a strong presumption of unconstitutionality,” the imposition of subsequent liability being the principle eventually applicable in the event of the abuse of its exercise. “This is because (…) the case law of the Court has been consistent with the governing principle whereby press law occupies a privileged position in our legal system. And this could not be otherwise, given that contemporary society breathes through informatio[n],” it stated. The Court ruled similarly in its October 28, 2014 decision in the case of Rodríguez v. Google Inc. & Yahoo Argentina, in which it found that the Internet companies were not liable for damages. 35. On December 17, 2014, the Federal Supreme Court of Brazil [Supremo Tribunal Federal] (STF), in suspending a measure that had ordered Rede União de Rádio e Televisão LTDA to pay compensation for non-pecuniary damages, upheld the prohibition against prior censorship and held that, in order to be admissible, limitations to freedom of expression must be properly provided for in valid laws; must pursue constitutionally legitimate aims, and must be “necessary to the preservation of a democratic and plural society.”30 36. In its April 5, 2016 decision adjudicating an unconstitutionality action challenging various articles of the Audiovisual Communication Services Law, the Uruguayan Supreme Court [Suprema Corte de Justicia] maintained the importance of adopting “the democratic standard” and the “dual dimension” of the right to freedom of expression, in assessing the constitutionality of the challenged provisions, which the petitioners alleged would inadmissibly restrict the right to freedom of expression.31 The Court rejected including issues related to “the convenience, justice, or timeliness of the provision” as a criterion of analysis. In explaining the reasoning behind its position on the standard of scrutiny that should be adopted, Judge Jorge Chediack stated that, “Although some rights can be limited by the legislature, the Court must examine in each case whether the provision effectively protects the general interest,” 29 Corte Suprema de Justicia de la Nación Argentina. Rodríguez María Belén c/google Inc. s/ Daños y Perjuicios. Judgment of October 28, 2014. 30 Supremo Tribunal Federal do Brasil (STF). Reclamação 16.329 MC/CE. Judgment of December 17, 2014, published on February 2, 2015. 31 Suprema Corte de Justicia de Uruguay. IUE 1-18/2015. Directv de Uruguay Limitada c/ Poder Legislativo. Acción de inconstitucionalidad. Judgment No. 79 of April 5, 2016. 26 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE a determination that requires the application of “the rules of reasonableness.” He specified that, “In case of doubt, and if it is not clear what the protected general interest is, the situation must be resolved in favor of freedom of expression.” For his part, Judge Ricardo C. Pérez Manrique, citing the position taken by the Inter-American Court in the case of Granier et al. (Radio Caracas Televisión) v. Venezuela, noted that, “Freedom of expression can also be affected without the direct intervention of State action,” for instance, through the existence of monopolies and oligopolies in media ownership. 37. Another relevant decision was issued by the Constitutional Court of the Dominican Republic [Tribunal Constitucional de República Dominicana] on April 4, 2016. The Court, partially upholding a direct action of unconstitutionality that challenged a number of articles of the Law on the Expression and Dissemination of Thought and of the Criminal Code, held that limitations on freedom of expression must: a) be provided for by law, b) pursue a legitimate aim, and c) be suitable, necessary, and proportionate.32 32 Tribunal Constitucional de República Dominicana. Acción directa de inconstitucionalidad. Judgment TC/0075/16 of April 4, 2016. CHAPTER IV CASE LAW ON PROHIBITION OF PRIOR CENSORSHIP 30 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE decision, the Federal Supreme Court reaffirmed “the full freedom of the press as a legal category prohibiting any type of prior censorship.” In this regard, it held that the lower court’s order imposed prior censorship on a journalistic publication under circumstances in which such measures were inadmissible. The Court stated that, “On the contrary, all of the standards […] indicate that the appropriate solution is to allow for the disclosure of the news, after which the interested party may avail itself of subsequent redress mechanisms.” The Federal Supreme Court added that, in this specific case, the censored news was of “clear public interest,” given that it referred to the investigation into alleged criminal acts related to the diversion of public funds. 41. This reasoning was reiterated by the Federal Supreme Court (STF) on October 3 of the same year, in its ruling on claim [Reclamação] 18.746.36 In this case, the Court set aside an injunction issued by the 12th civil court of the District of João Pessoa [Juízo da 12ª Vara Cível da Comarca de João Pessoa], state of Paraíba, barring Rede Globo from publishing reports on alleged irregularities committed by a judge in the State of Paraíba in adoption proceedings, which were the subject of parliamentary investigations. 36 Supremo Tibunal Federal do Brasil (STF). Reclamação 18.746. Judgment of October 3, 2014. CAPÍTULO V CASE LAW ON THE CONDITIONS THAT LIMITATIONS ON FREEDOM OF EXPRESSION MUST MEET IN ORDER TO BE ADMISSIBLE (THREE- PART TEST STANDARD) Chapter 5 Case Law on the Conditions that Limitations on Freedom of Expression Must Meet in Order To Be Admissible (Three-part Test Standard) | 35 Inter-American Commission on Human Rights | IACHR 47. As stated earlier, the limitations imposed must pursue one of the compelling aims set forth exhaustively in the American Convention, to wit: the protection of the rights of others, the protection of national security, public order, or public health and morals. This Office of the Special Rapporteur and the bodies of the Inter-American System have emphasized that “these are the only objectives authorized by the American Convention.”40 48. In relation to this point, the June 20, 2013 judgment of the Supreme Court of Mexico cited in the previous section is of particular interest.41 In this judgment, which cites the inter-American doctrine and jurisprudence multiple times, the high court held that “the protection of public order is an objective authorized” by the “legal system to limit the freedom of expression of citizens. Nevertheless, citing OC – 5/85 of the Inter- American Court, it held that, in general terms, “‘public order’ may under no circumstances be invoked as a means of denying a right guaranteed by the Convention or to impair or deprive it of its true content.” Citing the Office of the Special Rapporteur, the Court stated that, “any limitation on freedom of expression in the name of one of the aims provided for must be based on real and objectively verifiable causes that present the certain and credible threat of a potentially serious disturbance of the basic conditions for the functioning of democratic institutions.”  Requirement that the Limitation be Necessary in a Democratic Society, Suitable for Accomplishing the Compelling Aim Pursued, and Strictly Proportionate to that aim 49. The inter-American case law has noted that the States that impose limitations on freedom of expression are required to demonstrate that those limitations are necessary in a democratic society for the accomplishment of the compelling objectives they pursue.42 The link between the necessity of the limitations and democracy is derived, in the opinion of the Inter-American Court, from a harmonic and comprehensive interpretation of the American Convention.43 40 IACHR. Annual Report 2009. Report of the Special Rapporteur for Freedom of Expression. Chapter III (Inter- American Legal Framework of the Right to Freedom of Expression). OEA/Ser.L/V/II. Doc. 51. December 30, 2009. Para. 74. 41 Suprema Corte de Justicia de la Nación de México (SCJN). June 20, 2013. Invalida SCJN Artículo 373 del Código Penal del Estado de Veracruz; Suprema Corte de Justicia de la Nación de México (SCNJ). Acción de Inconstitucionalidad 29/2011. Judgment of June 20, 2013. Available at: http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=132774 42 I/A Court H.R. Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations, and Costs. Judgment of July 2, 2004. Series C No. 107. Para. 120-123; H.R. I/A Court H.R. Compulsory Membership in an Association prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5. Para. 46. 43 IACHR. Annual Report 2009. Report of the Special Rapporteur for Freedom of Expression. Chapter III (Inter- American Legal Framework of the Right to Freedom of Expression). OEA/Ser.L/V/II. Doc. 51. December 30, 2009. Para. 84. 36 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE 50. The Supreme Court of Mexico [Suprema Corte de Justicia de la Nación de México] further developed these concepts in the previously cited judgment of June 20, 2013.44 It held that, “It is not enough for the legislature to demonstrate that the aim pursued is legitimate; rather, it must ensure that the measure employed is carefully designed to accomplish that compelling aim.” Along these lines, the Court specified that “necessary” is not the same as “useful” or “opportune.” Accordingly, “In order for the restriction to be legitimate, the certain and compelling need to impose the limitation must be clearly established. In other words, it must be demonstrated that the objective in question cannot reasonably be accomplished by another measure less restrictive of freedom of expression. This means that it must not be limited beyond what is strictly necessary in order to guarantee the full exercise and scope of this human right,” held the Court. In its decision, the Supreme Court found that “A restriction to freedom of expression must be proportionate to the legitimate aim that justifies it, and strictly tailored to the accomplishment of that objective without interfering in the legitimate exercise of said freedom.” 51. In applying these standards to this specific case, the Court concluded that “the omission from the challenged provision of malice as an integral part of the statutorily defined conduct creates a very relevant chilling effect, whereby well-intentioned individuals may feel inhibited or frightened to express necessary alerts with respect to the ‘real’ existence of those elements (emphasis in the original).” “In this regard, article 373 caused greater harm that the harm it intended to prevent,” the Court summarized. Therefore, the Court, sitting en banc, found that the article was not “carefully designed to interfere as little as possible with freedom of expression and the right to information,” and did not “adequately meet the requirement of necessity demanded for all subsequent liability for the illegitimate exercise of speech.” It concluded that “The fear of serious harm does not by itself justify the chilling effect created by the threat of criminal prosecution or the seriousness of the penalty. The silence imposed by the State ends up blocking the flow of information more than necessary in a democratic society, and therefore violates articles 6 and 7 of the Federal Constitution.” 52. The First Division of the Supreme Court of Mexico [Primera Sala de la Suprema Corte de Justicia de la Nación de México], ruled similarly in its May 20, 2015 judgment on the unconstitutionality of article 398 Bis45 of the Criminal Code of Chiapas that prohibited 44 Suprema Corte de Justicia de la Nación de México (SCJN). June 20, 2013. Invalida SCJN Artículo 373 del Código Penal del Estado de Veracruz; Suprema Corte de Justicia de la Nación de México (SCNJ). Acción de Inconstitucionalidad 29/2011. Judgment of June 20, 2013. Available at: http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=132774. The sentence cites the following: I/A Court H.R. Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations, and Costs. Judgment of July 2, 2004. Series C No. 107. Parr. 120-233; Compulsory Membership in an Association prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5. Para. 44. 45 Article 398 Bis of the Criminal Code of Chiapas: “Any person who obtains and provides confidential or classified information from the public security or armed forces for the purpose of preventing the individual or individuals active of the crime from being detained or for the purpose of enabling them to engage in criminal activity to the detriment of a third party, shall be penalized with two to fifteen years of imprisonment and a fine of two hundred to four hundred days of minimum wage. When the behavior is carried out using persons who are minors or persons without the capacity to understand the unlawful nature of the act, the penalty shall be increased by one-half of that indicated in the first paragraph. Chapter 5 Case Law on the Conditions that Limitations on Freedom of Expression Must Meet in Order To Be Admissible (Three-part Test Standard) | 37 Inter-American Commission on Human Rights | IACHR “halconeo” [acting as a lookout].46 The provision imposed a term of imprisonment between two and fifteen years for persons “who obtain and disclose confidential or reserved information from the public security or armed forces for purposes of preventing the perpetrator or perpetrators of the crime from being arrested or for them to be able to conduct criminal activity against a third party.” In this case, the Court ruled on an amparo petition filed by the non-governmental organization Artículo 19, which called into question the vagueness of the terms of the provision, on the assertion that practically any search for information on matters of public safety was thus absolutely restricted. In its rationale for finding the provision unconstitutional, the First Division [Primera Sala] de la Suprema Corte de Justicia de la Nación de Méxicoheld that although the provision pursued a legitimate aim— protecting public safety—“the restriction was not oriented toward satisfying the public interests meant to be protected (necessity) and the restriction imposed is not the one that restricts the right of access to information to the least extent possible (suitableness). All of which, in turn (…) is related, in the instant case, to the violation of the principle that criminal provisions must be exhaustive in nature.” 53. The judgment of the First Division, delivered by Judge Alfredo Gutiérrez Ortiz Mena, held that “the challenged provision restricts the enjoyment of the essential core of the right of access to information (…) by criminalizing the public discussion of a part of the government’s activity that ideally should be front and center for society to evaluate—that is, public safety (core speech), and is not limited to restricting incidental or peripheral aspects of that speech.” The judgment contained important references to the doctrine and jurisprudence of the Inter-American Commission and the Inter-American Court of Human Rights with respect to the right to information. Among other things, it mentioned the standards on the right to information set forth in the Case of Gomes Lund et al. ("Guerrilha do Araguaia") v. Brazil and the Case of Claude Reyes et al. v. Chile. 54. In Colombia, the Constitutional Court [Corte Constitucional] applied the three-part test to determine which constitutional remedy would be least restrictive of freedom of expression, for purposes of adopting measures designed to protect the rights to honor and reputation of a citizen who sought the removal of content from the Internet concerning alleged criminal acts of which she was never found guilty. She sought to Likewise, the sentence will be increased up to one half when the behavior is carried out by civil servants who belong or have belonged to a public security institution, the armed forces or who are persons having belonged or belonging to legal entities that provide private security services. When the behavior is carried out using official equipment or vehicles, or vehicles of a public or commercial transport service, or that by their characteristics are similar to those in appearance, the penalty will be increased up to one half of the one indicated in the first paragraph. Likewise, confidential or classified information is understood as that which is related to the activities coming from operations, investigations, prosecution of crimes or their perpetrators, the same information that, in terms of the Political Constitution of the United Mexican States and the Law that Guarantees the Transparency and the Right to Public Information for the State of Chiapas, has such a nature.” 46 Primera Sala de la Suprema Corte de Justicia de la Nación (SCJN). Amparo en revisión 492/2014. Judgment of May 20, 2015. Available at: http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=167949 CHAPTER VI CASE LAW ON THE PRESUMPTION OF AB INITIO COVERAGE FOR ALL KINDS OF EXPRESSION, INCLUDING OFFENSIVE, SHOCKING OR DISTURBING SPEECH CHAPTER VII CASE LAW ON SPECIALLY PROTECTED SPEECH Chapter 7 Case Law on Specially Protected Speech | 47 Inter-American Commission on Human Rights | IACHR CASE LAW ON SPECIALLY PROTECTED SPEECH 61. Albeit all forms of expression are, in principle, protected by the freedom enshrined in article 13 of the American Convention, there are certain types of speech that receive special protection, given its importance to the exercise of all other human rights or to the consolidation, operation, and preservation of democracy. This Office of the Special Rapporteur has determined from the inter-American case law that such specially protected modes of speech are: (a) political speech and speech about matters of public interest; b) speech about public servants and candidates for public office; and (c) speech that comprises an element of the personal identity or dignity of the speaker. 62. This issue was addressed by the Constitutional Court of the Dominican Republic [Tribunal Constitucional de República Dominicana] in its April 4, 2016 judgment finding seven articles of the Law on the Expression and Dissemination of Thought unconstitutional.54 The Court was called upon to adjudicate a direct unconstitutionality action challenging eleven provisions of the law, and five articles of the Criminal Code. The plaintiffs, the directors of three newspapers—Rafael Molina Morillo, the director of El Día, Miguel Antonio Franjul, the director of Listín Diario, and Osvaldo Santana, the director of El Caribe—and the Fundación Prensa y Derecho [Press and Law Foundation], alleged that the challenged articles made “speech crimes” and “liability for the acts of another” criminal offenses punishable by imprisonment, which was inadmissible under the inter-American standards and the constitutional protection of the right to freedom of expression in the country. The decision, found that the criminalization of speech about public servants in the performance of their duties or persons holding government positions, is inadmissible and “affects the essential core of freedom of expression and opinion.” The Court ruled as follows: In view of the legal precedent, the Court concludes that the provisions of articles 30, 31, 34, and 37 of Law No. 6132,55 by establishing criminal penalties for any 54 Tribunal Constitucional de República Dominicana. Expediente No. TC-01-2013-0009. Acción directa de inconstitucionalidad. Judgment TC/0075/16 of April 4, 2016. 55 Article 30.- Article 30.- Defamation committed by one of the means set forth in articles 23 and 29 to the detriment of the Courts and Tribunals, the Armed Forces, the National Police, Legislative Chambers, Town Halls and other State institutions, will be punished with a one month to one year prison sentence and with a fine of RD $ 50.00 to RD $ 500.00, or with only one of these two penalties. Article 31.- The same punishment established in article 30 applies to defamation committed by the means announced in articles 23 and 29 to the detriment of: a) One or more members of the Cabinet; b) One or more members of the Legislative Chambers; c) One or more public officials; d) One or more depositaries or agents of public authority; e) One or more citizens in charge of any service or official, temporary or permanent mandate; f) A witness because of his deposition. This article only applies to defamation committed by reason of the office or quality of the persons who are considered aggrieved. Article 34.- Defamation (Injuria) committed by the same means to the detriment of the 50 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE 66. The First Division of the Court maintained that there was a “dual system of protection” in which “the limits of criticism are broader if it concerns individuals who, because they are involved in public activities or because of the role they play in a democratic society, are exposed to a more rigorous oversight of their activities and statements than those private citizens who have no public influence.” Commenting on the position of the Inter-American Court in the Case of Herrera Ulloa, the Court held that “the emphasis of this different threshold of protection does not lie in the status of the individual, but rather in the public interest nature of his or her activities or actions.” Accordingly, the Court’s unanimous decision noted that, “in order for the requirement of subsequent liability for speech that infringes upon the honor of public servants or other individuals involved in the performance of public duties to constitute a necessary, suitable, and proportionate legal response, stricter conditions must be met than those that apply in the case of infringements upon a private citizens’ right to honor.” Finally, the high court summarized its position in the following terms: this First Division finds that, in a democratic society, there is a slim margin to any restriction of political speech or speech concerning matters of public interest, such as speech calling into question the entities and public servants that make up the State. This does not mean that public servants cannot avail themselves of the judicial protection of their honor when it is subject to unjustified attacks, but it must be done in a manner consistent with the principles of democratic pluralism and through mechanisms that do not have the potential to create inhibition or self-censorship. 67. On September 17, 2014, the Federal Supreme Court of Brazil [Supremo Tribunal Federal] (STF) ruled in claim [Reclamação] 18.638 that “Persons who hold positions in government enjoy a less intense level of protection of their right to privacy. The oversight of government power and the prevention of censorship broadens the lawful degree of interference in the personal sphere of conduct of State agents.”63 The Court ruled similarly in the previously cited case involving the appeal filed by the magazine IstoÉ to suspend an injunction that imposed prior censorship. 63 Supremo Tribunal Federal do Brasil (STF). Reclamação 18.638. Judgment of September 17, 2014. CHAPTER VIII CASE LAW ON THE INCOMPATIBILITY OF DESACATO (DEFAMATION OF PUBLIC OFFICIALS) LAWS AND THE AMERICAN CONVENTION Chapter 8 Case Law on the Incompatibility of Desacato (Defamation Of Public Officials) Laws and the American Convention | 55 Inter-American Commission on Human Rights | IACHR Marinho Neto was of the opinion that the complaint should be dismissed based on the protection of the right to freedom of expression that emerges from articles: 1, II, III, V and its sole paragprah ; 5, IV,V, and IX; and article 220, all of the Federal Constitution; article 13 of the American Convention; article 27th of the Vienna Convention on the Law of Treaties; article 395.III of the Code of Criminal Procedure of Brazil [Código de Procedimento Penal] (CPP), and Principles 1 and 11 of the Declaration of Principles on Freedom of Expression adopted by the IACHR. The judgment held that the complaint should be shelved immediately, “due to the unconstitutionality and non- conventionality of the criminal offense of desacato contained in article 331 of the Criminal Code [Código Penal].”69 It further underscored that, “Citizens have the right to criticize and examine the actions and attitudes of public servants in the performance of their duties,” this being a core element of democracy. The judge noted that, insofar as Brazil acceded to the American Convention “it is subject to the action” of the IACHR and to the jurisdiction of the Inter-American Court of Human Rights. It further held that, according to article 27t of the Viena Convention —of which Brazil is also a signatory—a State party cannot invoke the provisions of its domestic law to justify the breach of a treaty. It held that, in short, the country would have to “formally expunge” article 331 of the Criminal Code from its legal system; otherwise, it would incur international responsibility. 74. The judgment incorporated the doctrine of the IACHR that desacato laws are incompatible with the American Convention and observed that maintaining this offense in the Brazilian legal system “inhibits individuals from expressing their opinions and thoughts to government authorities,” having a chilling effect on freedom of expression, because of the self-censorship in which citizens are liable to engage. The court maintained that “the interpretation and enforcement of the law” by the State judge should entail not only an analysis of its constitutionality but also a “conventionality control” analysis, as it was “imperative” in the Court’s view, “to acknowledge the non-convenctionality and inconstitutionality of the criminal type in question, “to do otherwise violates the fundamental and inalienable right of persons to freedom of expression, which constitutes the axiological and ontological foundation of democracy itself.” 75. Similar reasoning was expressed on March 17, 2015 by Judge Alexandre Morais da Rosa, of the Fourth Criminal Division of the District of the Capital of Santa Catarina [4ª Vara Criminal da Comarca da Capital de Santa Catarina], in ruling inadmissible a complaint filed by the Office of the Attorney General against a citizen for the offense of criminal defamation [desacato] for statements allegedly made to police officials during an operation.70 In this case,71 the court also performed a “conventionality 69 Art. 331 - Desacatar funcionário público no exercício da função ou em razão dela: Pena - detenção, de seis meses a dois anos, ou multa (Presidência da República de Brasil. Código Penal. December 7, 1940. Article 331). 70 Poder Judiciário de Santa Catarina. 4ª Vara Criminal da Comarca da Capital de Santa Catarina. Processo No. 0067370-64.2012.8.24.0023. Judgment of March 17, 2015. 71 In this case, according to the account of the facts contained in the sentence, the citizen was denounced for “desacato”, after allegedly saying to police agents who intervened in a street brawl in which he had reportedly taken part: "I do not like the Police and they are all a bunch of animals, arrogant and good for nothing", refusing to contribute any clarification about the brawl "much less" to a female police agent. 56 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE control.” The court held that the conviction of an individual under Brazilian law for the offense of desacato violates article 13 of the American Convention on Human Rights, as interpreted by the Inter-American Commission on Human Rights. The judgment cited the decisions of the Inter-American Commission on Human Rights on the incompatibility of the desacato laws with the Convention, whereby it has determined that these types of provisions do not pass the three-part test, given that they fail to meet the criterion of necessity and do not pursue a legitimate objective in a democratic society. CAPÍTULO IX CASE LAW ON THE SPECIAL PROTECTION OF OPINIONS AND THE NONEXISTENCE OF CRIMES OF OPINION 60 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE fellow journalist.74 The Court held that there was no “criminal content” in the journalist’s conduct because the publication that gave rise to the complaint was an opinion column that concerned matters of public interest. The Court based its reasoning on Peruvian case law and on the judgments of the Inter-American Court of Human Rights.75 79. The Chamber of Criminal Cassation of the Supreme Court [Corte Suprema de Justicia] of Colombia examined the special protection of political opinion. In its previously cited judgment of July 10, 2013, acquitting journalist Luis Agustín González of the defamation [injuria] charge brought against him as the result of a lawsuit filed by former Governor Leonor Serrano,76 the Court held that: although “disrespectful,” the “statements concerning the character of the former governor—who was referred to as despotic, arrogant, haughty, demeaning, erratic, flamboyant, and mentally unstable—do not contain objective elements to support the assertion that her honor was undermined or her image tarnished in front of other people. Rather, they pertain to the columnist’s perception of her.” The decision indicated that although the terms used by the journalist could “cause discomfort or humiliation to the complainant because of their highly disrespectful content,” criminal law cannot be “the appropriate forum for resolving these differences or for the aggrieved party to see her legitimate claims of redress satisfied” according to the “principle of strict legality and condition of ultima ratio established for criminal law.” 80. On December 17, 2014, the Federal Supreme Court [Supremo Tribunal Federal] of Brazil (STF) affirmed that freedom of expression includes the right to criticize and opine.77 In its decision, the Court held that, “The essential and irreducible core of the fundamental right to freedom of expression encompasses the right to inform, to be informed, to have and share opinions, and to criticize.” It thus underscored the importance of critical speech in the strengthening of democracy, and affirmed that “reducing the social role of the press to sanitized informative one that is supposedly neutral and impartial” does nothing to contribute to the dynamic of a democratic society. It held that the imposition of objectivity and the prohibition of pejorative opinions and unfavorable criticism “annihilate” the protection of freedom of the press, reducing it to the freedom to inform, which—in spite of being one of its dimensions—is by no means the only one. Freedom of the press and the imposition of objectivity “are mutually exclusive concepts,” emphasized the Court. It further stressed that the threshold for the protection of freedom of expression is even higher in cases of public interest. 74 Corte Superior de Justicia de Lima. Expediente N° 14156-2014. Judgment of August 29, 2016. Available at: http://legis.pe/wp-content/uploads/2016/09/Lee-aqu%C3%AD-la-sentencia-de-segunda-instancia-que- absuelve-a-Rafo-Le%C3%B3n-Legis.pe_.pdf 75 Corte Superior de Justicia de Lima. Expediente N° 14156-2014. Judgment of August 29, 2016. Available at: http://legis.pe/wp-content/uploads/2016/09/Lee-aqu%C3%AD-la-sentencia-de-segunda-instancia-que- absuelve-a-Rafo-Le%C3%B3n-Legis.pe_.pdf 76 Corte Suprema de Justicia de Colombia. Sala de Casación Penal. Casación sistema acusatorio Nº 38.909. Judgment of July 10, 2013. Available at: http://flip.org.co/resources/documents/c4ab6f8aa7b923cc81bf7d99e4da4e93.pdf. The Corte Constitucional de Colombia, with a judgment on April 30, 2014 of the Sala Tercera de Revisión, denied an action for protection brought by the former governor against the decision of the Sala de Casación Penal of the Supreme Court of Justice which is being commented. (Corte Constitucional de Colombia. Judgment T-265/14 of April 30, 2014). 77 Supremo Tribunal Federal do Brasil (STF). Reclamação 16.329 MC/CE. Judgment of December 17, 2014, published on February 2, 2015. CHAPTER X CASE LAW ON THE APPLICATION OF THE PRINCIPLE OF FAIR (OR NEUTRAL) REPORTING CHAPTER XI CASE LAW ON THE APPLICATION OF STANDARDS OF ACTUAL MALICE AND PROPORTIONALITY WHEN ESTABLISHING SUBSEQUENT CIVIL LIABILITY Chapter 11 Case Law on the Application of Standards of Actual Malice and Proportionality When Establishing Subsequent Civil Liability | 67 Inter-American Commission on Human Rights | IACHR CASE LAW ON THE APPLICATION OF STANDARDS OF ACTUAL MALICE AND PROPORTIONALITY WHEN ESTABLISHING SUBSEQUENT CIVIL LIABILITY 83. According to the Joint Declaration of 2000 issued by the Special Rapporteurs on Freedom of Expression of the UN, the OAS and the OSCE, civil penalties potentially assessed for the abuse of freedom of expression “should not be so large as to exert a chilling effect on freedom of expression and should be designed to restore the reputation harmed, not to compensate the plaintiff or to punish the defendant; in particular, pecuniary awards should be strictly proportionate to the actual harm caused and the law should prioritize the use of a range of non-pecuniary remedies.81” Along these lines, in the case of Tristán Donoso v. Panama, the Inter-American Court found that, because of the significant amount requested by the Office of the Attorney General as reparation for the acts it considered to be defamatory, the civil penalty assessed against Tristán Donoso was just as intimidating and inhibiting of the exercise of freedom of expression as a criminal sentence.82 84. The point was addressed by the First Chamber of the Constitutional Court [Sala Primera de la Corte Constitucional] of Colombia in the previously cited Judgment T- 904/133 of December 2013.83 In reaffirming the existence of specially protected speech, the First Chamber stated that, “the special importance of and potential threat to speech that aims to criticize public servants has led to the consideration that, in principle, any attempt—prior or subsequent—to restrict these types of speech constitutes censorship; and the enactment and enforcement of laws that penalize the criticism of public servants—known as ‘desacato laws’—as well as the assessment of substantial civil damages for the exercise of these types of speech, violate of freedom of expression.” 85. The judgment referred to the Report on the Compatibility of Desacato Laws with the American Convention on Human Rights.84 It also cited the November 29, 2011 judgment of the Inter-American Court in the case of Fontevecchia y D’Amico v. 81 Joint declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression. 2010. Available at: http://www.oas.org/es/cidh/expresion/showarticle.asp?artID=142&lID=2 82 I/A Court H.R. Case of Tristán Donoso v. Panama. Preliminary Objection, Merits, Reparations and Costs. Judgment of January 27, 2009. Series C No. 193. 83 Sala Primera de la Corte Constitucional de Colombia. Judgment T-904/13 of December 3,2013. 84 IACHR. Annual Report 1994. Chapter V: Report on the Compatibility of "Desacato" Laws with the American Convention On Human Rights. Title IV Section B). OEA/Ser. L/V/II.88. doc. 9 rev. February 17, 1995. Chapter 12 Case Law on the Right to Protect the Confidentiality of Sources | 71 Inter-American Commission on Human Rights | IACHR CASE LAW ON THE RIGHT TO PROTECT THE CONFIDENTIALITY OF SOURCES 87. The inter-American standards have acknowledged that journalists and media workers are entitled to the right to keep their sources confidential. Principle 8 of the Declaration of Principles on Freedom of Expression establishes that “Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.” The Office of the Special Rapporteur for Freedom of expression has interpreted that this principle “provides for the right of every social communicator to refuse to disclose sources of information and research findings to private entities, third parties, or government or legal authorities.”86 This prerogative rests on the premise of ensuring, through the work of journalists and media workers, that society as a whole is able to learn of information that it would not otherwise have any way of knowing. Thus, the Office of the Special Rapporteur has maintained that, “confidentiality 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.”87 88. The importance of this prerogative to guarantee the most extensive flow of information has also been expressed by different courts in the region. 89. Thus, for instance, in Judgment 2014-004035 of March 21, 2014, the Constitutional Chamber of the Supreme Court [Sala Constitucional de la Corte Suprema de Justicia] of Costa Rica upheld the right of journalists to maintain the confidentiality of their sources.88 The case came before Court as an amparo petition filed by journalists from the newspaper Diario Extra after one of the paper’s journalists, Manuel Rodríguez Estrada, was subjected to telephone surveillance. The surveillance order was given by the Office of the Assistant Attorney General on Organized Crime [Fiscalía Adjunta contra Crimen Organizado], and was executed and requested by the Judicial Investigations Agency [Organismo de Investigación Judicial], a body within the Judiciary, as part of an investigation to determine the responsibility of a public servant for leaking confidential information related to two kidnappings for ransom. 86 IACHR. Office of the Special Rapporteur for Freedom of Expression. Background and Interpretation of the Declaration of Principles. 2002. Para. 36. 87 IACHR. Office of the Special Rapporteur for Freedom of Expression. Background and Interpretation of the Declaration of Principles. 2002. Para. 37. 88 Sala Constitucional de la Corte Suprema de Justicia de Costa Rica. Fallos Relevantes Año 2014. Expediente No. 14-000848-0007-CO. Judgment 2014-004035 of March 21, 2014. Available at: http://sitios.poder- judicial.go.cr/salaconstitucional/Centro%20de%20Jurisprudencia/Sentencias%20relevantes/Sentencias%20Relev antes.htm; See also, Sala Constitucional Corte Suprema de Justicia de Costa Rica. Expediente No. 13-007483- 0007-CO. Recurso de Amparo. Judgment 00531 of January 17, 2014. 72 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE The telephone surveillance reportedly sought to determine who had provided the journalist with information about those events.89 90. The Court concluded that, in this specific case, the journalist’s right to privacy had been violated, and it sought to determine whether that circumstance had additionally entailed a violation of his right to freedom of expression and the right to keep sources confidential. Citing article 13.1 of the American Convention, article 19.2 of the International Covenant on Civil and Political Rights, and Principle 8 of the Declaration of Principles on Freedom of Expression, the Constitutional Court held that, “the confidentiality of sources of information” is “a fundamental right of journalists,” and is “instrumental” to the “full enjoyment of the right to disseminate and receive information.” In those terms, the high court reaffirmed and cited judgment 2008- 007548 of April 30, 2008: The confidentiality of sources is, then, an indispensable or essential condition for the exercise of the right to information. This confidentiality is also an institutional guarantee, in that it guarantees the right to information, which, in turn, has the objective of creating free public opinion and fostering democratic pluralism. The entitlement of journalists—that is, those who habitually or regularly engage in reporting—to this fundamental right is not an unjustified privilege; rather, as stated earlier, it is a condition sine qua non to guarantee freedom of information, and therefore, the development of free public opinion and democratic pluralism. 91. Referring to the scope of this right, the Constitutional Court held that “its protection and effectiveness apply ergaomnes,” including to the company that employs the journalists and to the authorities. It added that, “The reporter’s privilege (…) allows him or her to refuse to reveal his or her sources of information, maintaining their confidentiality.” Finally, the Court held that the confidentiality of sources cannot be equated to traditional professional privilege and affirmed that “the confidentiality of sources of information does not protect the journalist or the informant but rather the social conglomerate that is entitled to the right to receive information, such that it serves to guarantee a free, responsible, and independent press,” reasserted the Court. 92. Particularly relevant is the separate opinion of Judge Jinesta Lobo, in which he stated that the telephone surveillance of journalists or persons who habitually and regularly inform the public or public opinion, “is totally, absolutely, and radically unconstitutional, as they reveal sources of information (…). It cannot even be ordered by a judge.” He further found the telephone surveillance “of individuals who serve as sources of information for journalists or persons who habitually or regularly inform the public” to be inadmissible “under any circumstance.” He stated that journalists’ fundamental right not to disclose their sources “cannot yield, even to a court. It is a right that constitutes a secondary pillar of freedom of information, of the press, of the expression of thought and, consequently, of a robust and healthy democratic system 89 The ruling ordered that all telephone tracking linked to the journalist be annulled and reportedly warned the Prosecutor's Office and the Judicial Investigation Agency of refraining from engaging in such conduct again. Although the appeal was filed because of alleged telephone tracking of several journalists in the newspaper, the Court only ruled on journalist Rodríguez Estrada, whose tracking was proven. CHAPTER XIII THE PROHIBITION AGAINST PRIOR AND INDIRECT CENSORSHIP ESTABLISHING LIMITATIONS ON FREEDOM OF EXPRESSION BY INDIRECT MEANS, INCLUDING THE DISCRIMINATORY PLACEMENT OF GOVERNMENT ADVERTISING Chapter 13 The Prohibition Against Prior and Indirect Censorship Establishing Limitations on Freedom of Expression by Indirect Means, Including The Discriminatory Placement of Government Advertising | 77 Inter-American Commission on Human Rights | IACHR THE PROHIBITION AGAINST PRIOR AND INDIRECT CENSORSHIP ESTABLISHING LIMITATIONS ON FREEDOM OF EXPRESSION BY INDIRECT MEANS, INCLUDING THE DISCRIMINATORY PLACEMENT OF GOVERNMENT ADVERTISING 99. Article 13.3 of the American Convention provides, without limitation, that “[t]he 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.” 100. The IACHR has explained that a single State act can simultaneously constitute a limitation of freedom of expression contrary to the requirements of article 13.2 of the American Convention, and an indirect or subtle restriction on freedom of expression. For instance, the imposition of criminal penalties for specific speech contrary to the interests of the government, which is a direct limitation on this freedom, violates article 13 by virtue of being unnecessary and disproportionate; it also constitutes an indirect limitation of this right because of its chilling effect on future speech, which curtails the circulation of information—that is, it has the same result as direct censorship.96 101. In a decision handed down on June 30, 2016 in claim (Reclamação) 23.899, the Brazilian Federal Supreme Court [Supremo Tribunal Federal] (STF) suspended the effects of a judgment in the plaintiff’s favor and the processing of another set of class action lawsuits filed throughout the State of Paraná by judges seeking damages from the newspaper Gazeta do Povo following the publication of a report, an opinion column about the remuneration of judges and members of the Office of the Attorney General in Paraná.97 Gazeta do Povo maintained that the class action lawsuit against the newspaper amounted to an abuse of the right of action and sought to prevent the publication of new journalistic material that cast the judges in an unfavorable light. 96 IACHR. Annual Report 2009. Report of the Special Rapporteur for Freedom of Expression. Chapter III (Inter- American Legal Framework of the Right to Freedom of Expression). OEA/Ser.L/V/II. Doc. 51. December 30, 2009. Para. 157. 97 Supremo Tribunal Federal do Brasil (STF). Agravo Regimental. Reclamação (RCL) 23899. Judgment of June 30, 2016. 80 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE Administrativo Federal]. The Court had overturned the trial court’s judgment and admitted the amparo action filed by the media outlet.103 In its decision, the appeals court had ordered the State to prepare and present to the court within 30 days “a plan for the allocation of government advertising” that “includes analog stations like the plaintiff” and “faithfully adheres to the guidelines of proportionality and fairness established in the precedent.” 108. The Supreme Court underscored its status as the “supreme interpreter of the National Constitution and the laws enacted thereunder” and called into question the State’s failure to respect “the doctrine” of the precedent judgments such as Editorial Río Negro versus the government of that province and Editorial Perfil S.A. against the National State. It noted that, “The State conduct aimed at not applying these criteria is a clear violation of constitutional principles,” and that failure to comply with a court judgment constitutes disregard for the separation of powers, which is unacceptable under the rule of law.” The Supreme Court held that “Consequently, all conduct that deviates from these essential values of the democratic system, whether in the process of applying the law or enforcing judgments, violates the State’s function as guarantor of freedom of expression.” 103 The case started with an amparo action promoted by Arte Radiotelevisivo Argentino S.A. (Artear - Canal 13), against the National State (in particular against the Chief of Cabinet, then led by Minister Juan Manuel Abal Medina and the Secretary of Public Communication, Alfredo Scoccimarro) in order to "cease the arbitrary and discriminatory allocation of official advertising regarding” that company. The amparo action was reportedly dismissed in the first instance. In June, the Sala IV of the Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal revoked the first decision. The State then filed an extraordinary appeal before the Supreme Court, which gave merit to the ruling mentioned here. The Supreme Court's decision was dissented by two Judges (Enrique Santiago Petracchi and Carmen M. Argibay) who upheld the inadmissibility of the extraordinary appeal. CHAPTER XIV CASE LAW ON THE STATE’S OBLIGATION TO GUARANTEE PLURALISM AND DIVERSITY Chapter 14 Case Law on The State’s Obligation to Guarantee Pluralism and Diversity | 85 Inter-American Commission on Human Rights | IACHR in question “is a legislative tool whereby the legislature, in the exercise of its lawmaking authority, has sought to promote freedom of expression and communication in its collective dimension.” 115. The Court established that, “essentially,” the case presented a “conflict between the right to freedom of expression in its collective dimension and other fundamental rights: the right to freedom of expression in its individual dimension, the right to freedom of enterprise, and the right to property.” It held that the “basic source of regulation” of freedom of expression in Uruguay is article 29 of the Constitution and article 13 of the American Convention. It stated that, “Freedom of expression, in its diverse manifestations and in the terms regulated by article 13 of the Convention (…), is a fundamental human right, incorporated” into the national legal system through article 72 of the Constitution. 116. The Supreme Court established the parameters of scrutiny accordingly. Citing Advisory Opinion [Opinión Consultiva] 5/85 of the Inter-American Court, it stated that, “The interpretation of article 13 of the Convention must rest on two basic pillars: the first, called the “democratic standard”; and the second, called the “dual dimension standard.” It held that both pillars should have a bearing on the resolution of this specific case, and ruled out the notion that the constitutionality action should be at issue in the consideration of the merits, appropriateness, justice, or timeliness of the challenged articles. 117. The judgment found that the State’s establishment of limits on media concentration is a legitimate aim. Referring to article 51 on monopolies and oligopolies,110 the Court held that this provision “seeks to respect the general interest of every society in ensuring the true right of individuals to information, which necessarily involves plurality and diversity in the ownership and control of audiovisual communication services.”111 By October 2016, the Court had ruled in 10 of the 28 lawsuits filed. Based on these pronouncements, the president of the Supreme Court of Justice said that the structure of the law "in terms of user rights, the structure in terms of creating an independent body with multisectoral integration... has passed the test of constitutionality, as well as the vast majority of the law”. (Cfr: Comunicación Democrática. October 17, 2016. Presidente de Suprema Corte de Uruguay afirma que sentencias sobre Ley de Medios sientan jurisprudencia: “una buena ley que supera el test de constitucionalidad”). 110 Article 51 (Monopolies and oligopolies).- Monopolies or oligopolies in the ownership and control of audiovisual media services conspire against democracy by restricting the pluralism and diversity that ensures the full exercise of the right to information of people. It is the State’s duty to implement adequate measures to prevent or limit the existence and formation of monopolies and oligopolies in audiovisual communication services, as well as to establish mechanisms for their control. (Uruguay. Ley de Servicios de Comunicación Audiovisual. Ley No. 19.307. December 29, 2014. Article 51. Available at: Uruguay. Ley de Servicios de Comunicación Audiovisual. Ley No. 19307. December 29, 2014. Available at: http://www.impo.com.uy/bases/leyes/19307-2014) 111 However, the Court declared by majority the unconstitutionality of one of the anti-concentration rules provided for in the law. The regulation considered unconstitutional is Article 55, on limitations on the number of subscribers of television services for subscribers, based on the following reasons: a) because "regardless of pursuing the important purpose of avoiding monopolistic or oligopolistic behavior, it ends up violating the right of ownership of the plaintiff" (position held by judges Jorge Larrieux and Jorge Chediak); (b) because it "harms legal security, affecting the acquired rights of the company" (judge Elena Martínez's argument, shared also by the other two judges mentioned, with whom the majority was formed); c) Because it "distorts the free play of the market". In this judgment, the Court ruled on the constitutionality of Article 56 inasmuch as it provides for the prohibition of cross-ownership between television and telecommunications services. The first paragraph of 86 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE 118. The Supreme Court determined that the imposition of minimum percentages of national production for the audiovisual media is constitutional, given that these types of provisions “do not impose content, such as the expression or dissemination of specific material; rather, they establish rules on the origin of the production that, given their vagueness, in principle, would have no effect on freedom of expression.” Nevertheless, the majority of the Court was of the opinion that “the obligation to put out certain types of content”—citing some of the law’s provisions on programming— such as the obligation to show “new releases of fictional television” or “new film releases” are unconstitutional, because “they do not adhere to the content of the right of freedom of expression (which includes freedom of communication).” On this point, a majority of the Court opined that the provision “entails a measure that indirectly violates freedom of expression.”112 119. The uruguayan Court upheld the constitutionality of a number of provisions of article 32 of the law which establish a programming schedule designed to protect the rights of children and adolescents, and a number of guidelines regarding the programming to be aired during those hours. The judgment held that that regulation was compatible with article 29 of the Constitution and article 13 of the American Convention, to the extent that it “pays special attention to the moral protection of children” and therefore, the challenged provision “finds its support in a reason of general interest.” the regulation states: “Natural or legal persons who provide audiovisual communication services regulated by this law may not, in turn, provide telephony or data transmission telecommunications services.” However, months later, with the same integration, the Court held in another ruling that such a provision is unconstitutional”. 112 The sentence referred in this point to the second paragraph of letter C of Art. 60 of the law 19.307. CHAPTER XV CASE LAW ON FREEDOM OF EXPRESSION AND THE INTERNET 90 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE be carefully considered” so that it does not affect “the perfect functioning” of the Web. She added that “in the case of Internet search service providers, the imposition of implicit or subjective obligations would entail, potentially, the restriction of the search results, which would be to the detriment of all user[s]”. The judge highlighted the importance of search services in a world in which the daily lives of millions of people depend on information that is on the Internet and would be difficult to find without the search tools offered by search sites.  Application of the Principle of Universal Access and Emerging Obligations of the States 123. The Declaration of Principles on Freedom of Expression states that, “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.” This principle applied to freedom of expression on the Internet—this Office of the Special Rapporteur has stated—must be interpreted to have the following consequences: steps should be taken to progressively promote universal access not only to infrastructure but also to the technology needed for its use and to the greatest amount possible of information available on the Internet; to eliminate arbitrary barriers to access to infrastructure, technology, and information online; and to take positive differentiation measures to allow for the effective enjoyment of this right for individuals or communities who face exclusion or discrimination.115 124. A similar perspective is reflected in Judgment 531 of January 17, 2014, handed down by the Constitutional Chamber of the Supreme Court [Sala Constitucional de la Corte Suprema] of Costa Rica, in which the Court admitted an amparo petition filed by a resident of the town of Santa Ana de Nicoya who complained that she lacked access to cellular telephone and Internet service.116 In this case, the Constitutional Court ordered the State to take a number of measures designed to guarantee the principle of universal access according to the provisions of the Telecommunications Act.117 Stating the reasons for the decision, Judge Rapporteur Fernando Castillo Víquez, who delivered the opinion, invoked the principle in the following terms: First, it should be noted that the Superintendence of Telecommunications, through the National Telecommunications Fund—and not this Court—is responsible for 115 IACHR. Annual Report 2013. Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter IV (Freedom of Expression and the Internet). OEA /Ser.L/V/II.149 Doc. 50. December 31, 2013. Para. 15. 116 Sala Constitucional Corte Suprema de Justicia de Costa Rica. Expediente No. 13-007483-0007-CO. Recurso de Amparo. Judgment 00531 of January 17, 2014. 117 The ruling ordered Instituto Costarricense de Electricidad to "carry out actions that are within the scope of its powers, so that within a period of six months from the notification of the judgment, it shall submit a project" under the Fondo Nacional de Telecomunicaciones (Fonatel), in order to assess the possibility of installing the necessary infrastructure to provide Internet and cellular services in the community of Santa Ana de Nicoya. Likewise, it ordered "the Consejo de la Superintendencia de Telecomunicaciones (SUTEL), to carry out the actions that are within the scope of its competencies so that these applications are valued, so that if deemed feasible, they are included within the projects financed by FONATEL”. Chapter 15 Case Law on Freedom of Expression and the Internet | 91 Inter-American Commission on Human Rights | IACHR promoting access to high-quality telecommunications services in a timely, efficient, affordable, and competitive manner to residents in the areas of the country where the cost of investing in the installation and maintenance of the infrastructure makes it so that the provision of these services is not financially profitable, ensuring the application of the principles of universality and solidarity in telecommunications services”. 125. The Constitutional Chamber of the Supreme Court of Costa Rica thus reaffirmed its jurisprudential position recognizing the right of access to the Internet as a fundamental right, and held that “the omission”118 of the State to take measures tending to guarantee Internet access in the area, regardless of financial feasibility or profitability, “violates the affected parties’ constitutional right to telecommunications.”  Content Blocking and Filtering: Its Restrictive Nature with Regard to Freedom of Expression and Exceptional Admissibility Under Strict Conditions in Relation to Unprotected Speech or Specific Content that is Openly Illegal 126. According to the aforementioned Joint Declaration on Freedom of Expression and the Internet and the Inter-American legal framework, the Office of the Special Rapporteur has noted that “forcing the blocking or suspension of entire websites, platforms, channels, IP addresses, domain name extensions, ports, network protocols, or any other kind of application, as well as measures intended to eliminate links, information and websites from the servers on which they are stored, all constitute restrictions that are prohibited and exceptionally admissible only strictly pursuant to the terms of article 13 of the American Convention.”119 127. This issue was addressed by the Supreme Court Argentina [Corte Suprema de Justicia de la Nación Argentina] in the adjudication of the extraordinary appeals filed by the plaintiff and the respondent in the previously cited case of Rodríguez v. Google, Inc.120 The judgment of October 28, 2014 introduced the analysis in relation to the admissibility of content blocking and filtering and its compatibility with the standards on freedom of expression in its consideration of one of the plaintiff’s allegations of lower court error, which challenged the decision of the court of appeals to set aside the Trial Court’s judgment. The Trial Court had ordered the permanent deletion of the links between the plaintiff’s name, image, and photographs and sites containing sexual, erotic, and/or pornographic content on Google. 128. In its conclusions of law, the judgment stated that, “This is a matter of determining whether, in cases in which freedom of expression is at stake, preventive protection is warranted for purposes of preventing the repeated dissemination of information 118 At this point in line with the support of the Sala Constitucional of the Supreme Court of Justice in judgment No. 2011017704 of December 23, 2011, the agency in charge of telecommunications should have sought to guarantee access to the Internet through the funds available by the legal framework to that effect. 119 IACHR. Annual Report 2013. Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter IV (Freedom of Expression and the Internet). OEA /Ser.L/V/II.149 Doc. 50. December 31, 2013. Para. 84. 120 Corte Suprema de Justicia de la Nación Argentina. Rodríguez María Belén c/google Inc. s/ Daños y Perjuicios. Judgment of October 28, 2014. 92 | National Case Law on Freedom of Expression Office of the Special Rapporteur for Freedom of Expression | RFOE harmful to an individual’s personal rights.” Invoking the pertinent application of article 13. 2 of the American Convention to decide this point, the high court reaffirmed that the exercise of the right to freedom of expression cannot be subject to prior censorship, but rather only to subsequent liability. Accordingly, the Supreme Court ruled that it was not possible to force the search engines to establish filters or blocks on links in advance, as that would be tantamount to a form of prior censorship that is unconstitutional and proscribed by article 13 of the American Convention on Human Rights, a principle that can yield only to “absolutely exceptional circumstances.” Accordingly, the plaintiff’s allegation of lower court error was dismissed on that point, as “he had not even argued that the case justified deviating from the principles that arise from the case law” of the Supreme Court on the issue.121 129. In Brazil, in an August 5, 2014 judgment delivered by Judge Ricardo Villas Bôas Cueva regarding claim [Reclamação]18.685,122 the Second Section [Segunda Seção] of the Superior Court of Justice [Superior Tribunal de Justiça] (STJ) held that Internet search service providers cannot be forced to delete specific results from their systems with respect to a specific word, image, or text, even when it shows the exact address of the page sought to be deleted. It also found that search services, “by their nature,” do not include the prior screening of content. The case came before the STJ on a request for the protection of constitutional rights [Reclamação com pedido de liminar] filed by Google Brazil, against the decision of the Fourth Rotation of the Court of Appeals of the Special Courts for the State of Espíritu Santo [Quarta Turma do Colégio Recursal dos Juizados Especiais do Estado do Espírito Santo]. Google had been ordered to block the URL address—which linked the plaintiff’s name to a news article—from search results when the plaintiff’s name was used as a search criterion. The measure was requested by a judge, who, after having been acquitted in an administrative disciplinary case, filed the action seeking to have the news article associated with his name excluded from search results. The STJ held that the judgment against Google was “inconsistent” with its established case law.  The Responsibility of Internet Intermediaries 130. Intermediaries have been defined as those actors—generally from the private sector—that “give access to, host, transmit and index content, products and services originated by third parties on the Internet or provide Internet-based services to third parties.”123 This Office of the Special Rapporteur has noted that the circulation of information and ideas on the Internet would not be possible without these entities, 121 The President of the Supreme Court, Ricardo Luis Lorenzetti and Judge Juan Carlos Maqueda, expressed their partial dissent on this point. In support of their position, the magistrates stated that what was intended was the judicial protection of a very personal right that is compatible with freedom of expression. They contended that the claim is admissible "provided that, for an adequate balance of interests at stake, the links associated with its person and the damage that the linkage causes are precisely identified. Thus delimited, protection constitutes a type of further reparation and avoids any generalization that may affect the free circulation of ideas, messages or images and with it, the constitutional guarantee of freedom of expression.” 122 Superior Tribunal de Justiça do Brasil (STJ). Reclamação No. 18.685. Judgment of August 5, 2014. 123 Definition given by the Organization for Economic Cooperation and Development (OECD). Organization for Economic Cooperation and Development (OECD). April 2010. The Economic and Social Role of Internet Intermediaries. Page 9, cited in: IACHR. Annual Report 2013. Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter IV (Freedom of Expression and the Internet). OEA /Ser.L/V/II.149 Doc. 50. December 31, 2013. Quote 129.