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 INDEX INTRODUCTION ........................................................................................................................................................................... 7 CASE LAW ON THE IMPORTANCE, FUNCTION, AND SCOPE OF FREEDOM OF EXPRESSION IN DEMOCRATIC SYSTEMS ......................................................................................................................................................................................11 CASE LAW ON ENTITLEMENT TO FREEDOM OF EXPRESSION AND ITS DUAL DIMENSION ...................................19 CASE LAW ON THE ADMISSIBILITY OF LIMITATIONS TO FREEDOM OF EXPRESSION: GENERAL FRAMEWORK ........................................................................................................................................................................................................23 CASE LAW ON PROHIBITION OF PRIOR CENSORSHIP .....................................................................................................29 CASE LAW ON THE CONDITIONS THAT LIMITATIONS ON FREEDOM OF EXPRESSION MUST MEET IN ORDER TO BE ADMISSIBLE (THREE-PART TEST STANDARD) ....................................................................................................33 CASE LAW ON THE PRESUMPTION OF AB INITIO COVERAGE FOR ALL KINDS OF EXPRESSION, INCLUDING OFFENSIVE, SHOCKING OR DISTURBING SPEECH.............................................................................................................43 CASE LAW ON SPECIALLY PROTECTED SPEECH ...............................................................................................................47 CASE LAW ON THE INCOMPATIBILITY OF DESACATO (DEFAMATION OF PUBLIC OFFICIALS) LAWS AND THE AMERICAN CONVENTION ........................................................................................................................................................53 JURISPRUDENCIA SOBRE LA PROTECCIÓN ESPECIAL DE LAS OPINIONES Y LA INEXISTENCIA DEL DELITO DE OPINIÓN .......................................................................................................................................................................................59 CASE LAW ON THE APPLICATION OF THE PRINCIPLE OF FAIR (OR NEUTRAL) REPORTING ...............................63 CASE LAW ON THE APPLICATION OF STANDARDS OF ACTUAL MALICE AND PROPORTIONALITY WHEN ESTABLISHING SUBSEQUENT CIVIL LIABILITY .................................................................................................................67 CASE LAW ON THE RIGHT TO PROTECT THE CONFIDENTIALITY OF SOURCES .......................................................71 THE PROHIBITION AGAINST PRIOR AND INDIRECT CENSORSHIP ESTABLISHING LIMITATIONS ON FREEDOM OF EXPRESSION BY INDIRECT MEANS, INCLUDING THE DISCRIMINATORY PLACEMENT OF GOVERNMENT ADVERTISING .............................................................................................................................................................................77 CASE LAW ON THE STATE’S OBLIGATION TO GUARANTEE PLURALISM AND DIVERSITY ....................................83 CASE LAW ON FREEDOM OF EXPRESSION AND THE INTERNET ...................................................................................89 INTRODUCTION Introduction | 7 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. Inter-American Commission on Human Rights | IACHR 8 | National Case Law on Freedom of Expression Uruguay, which are prolific in the incorporation and development of the inter- American doctrine and case law, and the work of different Brazilian courts, which have played a very important role during this period to promote the right to freedom of expression and exercise “conventionality control.” 6. The group of decisions examined reflects a solid body of case law from the region’s national high courts that—consistent with the Inter-American Court and Commission—underscores the importance of freedom of expression as a “cornerstone of the very existence of a democratic society,” reaffirms the individual and collective dimension of this right and the prohibition of prior censorship, and applies the three-part test in analyzing the admissibility of limitations to freedom of expression under the American Convention. 7. With respect to the catalog of issues that have traditionally been addressed by the courts of the region, this compilation identifies advances in the judicial protection of specially protected speech, particularly political speech about public servants. With regard to the themes that have emerged in the hemisphere in recent years in relation to freedom of expression, the chapter discusses the growing litigation of matters involving freedom of expression on the Internet, privacy, and surveillance, on which the case law is still nascent. 8. Summarized below is a selection of notable court decisions. They have been systematized in accordance with 24 items that reflect different standards and rules of the inter-American legal framework, and grouped according to 13 analytical aspects. The decisions are preceded by a synthesis of the inter-American standard that was used as a reference in each category. 9. Finally, as in other annual reports, this Office recognizes that an exhaustive study of the national court decisions handed down in relation to this right is beyond the scope of this report. Accordingly, the Office of the Special Rapporteur will refer only to those notable court decisions about which it has received information. Office of the Special Rapporteur for Freedom of Expression | RFOE CHAPTER I CASE LAW ON THE IMPORTANCE, FUNCTION, AND SCOPE OF FREEDOM OF EXPRESSION IN DEMOCRATIC SYSTEMS Chapter 1 Case Law on the Importance, Function, and Scope of Freedom of Expression in Democratic Systems | 11 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