CHAPTER II EVALUATION OF THE STATE OF FREEDOM OF EXPRESSION IN THE HEMISPHERE A. Introduction and methodology 1. The right to freedom of expression is a universal right of all individuals, without which the most important of liberties—the right to think for oneself and shares one’s views with others—is denied. The full exercise of the right to express one’s own ideas and opinions, to share information that is available, and to deliberate openly and without restrictions regarding the issues that concern us all is an indispensable condition for the consolidation, functioning and preservation of democratic regimes.1 2. This chapter describes some of the most important aspects of freedom of expression in the hemisphere during 2010. Its objective is to begin a constructive dialogue with the Member States of the OAS, calling attention to the reported advances as well as the problems and challenges that have required action during this period. The Office of the Special Rapporteur has confidence in the will of the OAS Member States to promote decisively the right to freedom of expression and, to that end, to publicize their best practices, report the most serious problems observed, and formulate viable and practical recommendations based on the Declaration of Principles. 3. As in previous annual reports, this chapter exposes the aspects of the right to freedom of expression that merit greater attention and that have been reported to the Office of the Special Rapporteur during the year. Following the methodology of previous annual reports, this chapter is developed from the information received by the Office of the Special Rapporteur from various State and non-governmental sources. The information provided by States, collected during official visits,2 presented during the hearings held by the IACHR, submitted by non-governmental organizations in the region, and contained in alerts sent by media and communicators is of particular importance to the Special Rapporteurship. In all cases, the information is contrasted and verified so that the only information that is published is that which will serve to assist the States to identify particularly problems or tendencies that must be addressed before they could eventually cause irreparable effects. 4. The selected information is ordered and systematized in a manner so as to present the advances, setbacks, and challenges in various aspects of the exercise of the right to freedom of expression, including progress made in legal or legislative matters, as well as the most serious problems that arose throughout the year, such as murders, threats and attacks against journalists related to the exercise of their profession; the application of disproportionate subsequent imposition of liability; threats against the right to keep sources confidential; the progress and challenges in the right to access to information; and the problems detected in the allocation of government advertising, among others. 5. The cases selected in each topic seek to serve as paradigmatic examples that reflect the situation in each country in relation to the respect and exercise of freedom of expression. Sources are cited in all cases. It is pertinent to clarify that the omission of analysis of the situation 1 IACHR, Office of the Special Rapporteur for Freedom of Expression. Inter-American Framework on the Right to Freedom of Expression. OEA/Ser.L/V/II IACHR/RELE/INF. 2/09. December 30, 2009, paras. 7-8. Available at http://www.cidh.org/pdf%20files/Inter%20American%20Legal%20Framework%20english.pdf 2 Towards the end of this chapter, the methodology used by the Office of the Special Rapporteur to collect, classify and assess the information gathered on official visits is presented as an annex. 28 of some cases or States is due to the fact that the Office of the Special Rapporteur has not received sufficient information. As such, these omissions should be interpreted only in this sense. In the majority of cases, the Office of the Special Rapporteur provides the direct source, citing the electronic address of the corresponding Web site. When the information is not published directly, the report cites the date the information was received in the electronic mailbox of the Office of the Special Rapporteur. This report does not include information that has been submitted to the Office of the Special Rapporteur through requests for precautionary measures, which has not yet been made public. 6. In preparing this chapter of its 2010 Annual Report, the Office of the Special Rapporteur generally took into account information received until December 1, 2010. However, the report includes some particulary serious incidents that occurred during the month of December as well as events that began before but concluded in December. Information regarding incidents that occurred after December 1 is available in the press release section of the websites of the Office of the Special Rapporteur (http://www.cidh.org/relatoria) and the IACHR (http://www.cidh.org). 7. Finally, the Office of the Special Rapporteur acknowledges the collaboration of the OAS Member States and the civil society organizations that contributed information about the situation of the exercise of freedom of expression in the hemisphere. The Office of the Special Rapporteur encourages the continuation of this practice, as it is fundamental for the enrichment of future reports. B. Evaluation of the state of freedom of expression in the Member States 1. Argentina 8. The Office of the Special Rapporteur observes with satisfaction that on July 5, the Argentine State carried out a public ceremony to recognize its responsibility for the violation of the human rights of journalist Eduardo Kimel.3 Kimel had been sentenced in March of 1999 to one year in prison, suspended, and the payment of damages for criticizing the actions of a judge in his book The San Patricio Massacre. The book was the result of an investigation that was published in November 1989 on the murder of five followers of the Pallotine Society of Apostolic Life. In complying with the judgment, in 2009 the Argentine State eliminated the application of defamation laws to expression that is in the public interest. 9. The Office of the Special Rapporteur values the May 19, 2010, judgment of the Supreme Court of Justice of the Nation in the case of Miguel Ángel Di Salvo versus newspaper El Diario La Mañana. The judgment struck down a ruling from the National Chamber of Civil Appeals against the newspaper. The Supreme Court’s civil judgment reiterated the doctrine of actual malice, according to which, “With regard to information referring to public figures, when the news item contains false or inaccurate expressions, those who consider themselves affected must demonstrate that those who made said expression or accusation knew the news item was false and acted with the knowledge that it was false or with evident recklessness with regard to its veracity.”4 3 Página 12. July 5, 2010. CFK leads tribute to Eduardo Kimel. Available at: http://www.pagina12.com.ar/diario/ultimas/20-148895-2010-07-05.html; La Nación. July 5, 2010. President blames courts for holdup in Media Law. Available at: http://www.lanacion.com.ar/nota.asp?nota_id=1281836 4 The case began in March 2003 with a publication that gave inaccurate information on the size of properties owned by Di Salvo, a provincial senator, former mayor, and former council member. Although the newspaper corrected the information several days later, Di Salvo insisted that it had intentionally offended him. A lower court judge rejected the lawsuit; however, Chamber A of the National Civil Appeals Chamber overturned the lower court’s ruling and sentenced the newspaper La Mañana to pay $20,000 and publish the operative part of the sentence on the front page of its Sunday edition. Supreme Court of Justice of the Nation. Republic of Argentina. May 19, 2010. Di Salvo, Miguel Ángel v. Diario La Mañana Continued… 29 10. Likewise, the Office of the Special Rapporteur hails the June 8, 2010, judgment of the Supreme Court of Justice of the Nation in the case of Canavesi versus the newspaper El Día. That ruling overturned a conviction against the newspaper for publishing false information on a private individual based on information provided by a government source.5 11. The Office of the Special Rapporteur was informed of a June 15, 2010, ruling by the Supreme Court of Justice of the Nation approving the system for placement of government advertising in the Neuquén Province government, in compliance with a paradigmatic judgment handed down by the Supreme Court in September 2007 in favor of the newspaper Río Negro. The case originated in a writ of constitutional appeal filed by the newspaper over the suspension of official advertising by the provincial government following the newspaper’s publication of articles raising questions about the Neuquén governor in December 2002.6 12. The Office of the Special Rapporteur recognizes the importance of the fact that the Congress of the Nation of Argentina took up once again in 2010 discussion of the Access to Information Act. The bill was passed by the Senate on September 30 and continues to be processed through the Chamber of Deputies.7 However, it is crucial that the project move forward and the State put in place a legal framework for accessing information that hews to international standards on the subject. 13. Although Argentina does not yet have a general access law, it has seen several important judicial rulings that it is relevant to highlight. The Office of the Special Rapporteur learned that on November 2, the Adversarial Administrative Federal Chamber8 upheld a ruling by the …continuation on damages. Case File D 281. XLIII. Available through: http://www.csjn.gov.ar/jurisprudencia.html. Association of Argentine Journalism Entities.