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The Inter-American Legal Framework Regarding the Right to Freedom Of ISBN 978-0-8270-5457-8 ISBN American States American Organization of of Organization Marco jurídico The Inter-American Legal Framework regarding the Right to Freedom of Expression Freedom the Right to regarding Legal Framework The Inter-American interamericano Marco jurídico interamericano sobre el derecho a la libertad de expresión a la libertad el derecho sobre interamericano jurídico Marco sobre el derecho a la libertad de Inter American Commission on Human Rights Human on Commission American Inter expresión Office of the Special Rapporteur for Freedom of Expression of Freedom for Rapporteur Special the of Office Relatoría Especial para la Libertad de Expresión Comisión Interamericana de Derechos Humanos Expression to Freedom of of Freedom to regarding the Right Right the regarding Legal Framework Framework Legal The Inter-American Inter-American The Organización de los Asdi Estados Americanos ISBN 978-0-8270-5457-8 OEA/Ser.L/V/II CIDH/RELE/INF. 2/09 30 December 2009 Original: Spanish INTER-AMERICAN LEGAL FRAMEWORK REGARDING THE RIGHT TO FREEDOM OF EXPPRESSION Office of the Special Rapporteur for Freedom of Expression Inter American Commission on Human Rights 2010 Internet: http://www.cidh.org/relatoria Email : [email protected] ii OAS Cataloging-in-Publication Data Inter-American Commission on Human Rights. Office of the Special Rapporteur on Freedom of Expression. Marco jurídico interamericano sobre el derecho a la libertad de expresión = the inter-American legal framework regarding the right to freedom of expression / Relatoría Especial para la Libertad de Expresión, Comisión Interamericana de Derechos Humanos. p. ; cm. (OEA documentos oficiales ; OEA Ser.L/V/II CIDH/RELE/INF.)(OAS official records ; OEA Ser.L/V/II CIDH/RELE/INF.) ISBN 978-0-8270-5457-8 1. Freedom of information--Legal aspects--America. 2. Freedom of speech--America. 3. Freedom of information--America. 4. Civil rights-- America. 5. Human rights--America. I. Title. II Series. III. Series. OAS official records ; OEA/Ser.L. V/ II CIDH/RELE/INF. KG576.L7 I58 2010 OEA Ser.L/V/II. CIDH/RELE/INF. 2/09 Book printed thanks to the financial support Swedish International Development Cooperation Agency – SIDA / ASDI Texts elaborated with the financial support of the European Commission – Agreement IEDDH Cris No. 2009 / 167‐432 Approved by the Inter-American Commission on Human Rights on December 30, 20091 1 The incorporation of this document into the Annual Report of the IACHR was approved in December 2009 in plenary session by the Commission, composed of Luz Patricia Mejia Guerrero, Victor E. Abramovich, Felipe Gonzalez, Sir Clare Kamau Roberts, Paulo Sérgio Pinheiro, Florentín Meléndez and Paolo G. Carozza. iii INTER-AMERICAN COMMISSION ON HUMAN RIGHTS MEMBERS Felipe González Paulo Sergio Pinheiro Dinah Shelton María Silvia Guillén Rodrigo Escobar Gil Luz Patricia Mejía Guerrero José de Jesús Orozco Henríquez ******* Santiago A. Canton, Executive Secretary. Elizabeth Abi-Mershed, Deputy Executive Secretary iv Catalina Botero Marino Special Rapporteur for Freedom of Expression Inter American Commission on Human Rights Organization of American States v INDEX TABLE OF ACRONYMS AND REFERENCES..................................................................viii PROLOGUE ............................................................................................................... ix INTER-AMERICAN LEGAL FRAMEWORK REGARDING THE RIGHT TO FREEDOM OF EXPRESSION..............................................................................................................1 A. Importance and function of the right to freedom of expression ..............................1 1. Importance of freedom of expression within the Inter-American legal framework..1 2. Functions of freedom of expression ................................................................2 B. Main characteristics of the right to freedom of expression ....................................4 1. Entitlement to the right to freedom of expression .............................................4 2. Dual dimension – individual and collective – of freedom of expression ................5 3. Duties and responsibilities contained within freedom of expression.....................6 C. Types of speech protected by freedom of expression ...........................................7 1. Types of protected speech according to form ..................................................7 a. Forms of expression specifically protected by inter-American instruments .......7 2. Types of speech protected according to content ............................................10 a. Presumption of coverage ab initio for all types of speech, including offensive, shocking or disturbing speech .........................................................................10 b. Specially protected speech ......................................................................11 i. Political speech and speech involving matters of public interest ................11 ii. Speech regarding public officials in the exercise of their duties and candidates for public office..........................................................................13 iii. Speech that expresses essential elements of personal identity or dignity....19 3. Speech not protected by freedom of expression.............................................20 D. Limits on freedom of expression ......................................................................21 1. Admissibility of limitations under the American Convention on Human Rights ....22 2. Conditions that limitations must meet in order to be legitimate under the American Convention .......................................................................................................23 a. General rule: compatibility of limitations with the democratic principle.......23 b. Specific conditions derived from Article 13.2: the three-part test .................24 i. The limitations must be set forth in laws that are drafted clearly and precisely ...................................................................................................24 ii. The limitations must serve compelling objectives authorized by the American Convention................................................................................................26 iii. The limitations must be necessary in a democratic society to serve the compelling objectives pursued, strictly proportionate to the objective pursued, and appropriate to serve such compelling objective ..............................................29 c. Types of limitations that are incompatible with Article 13............................31 i. The limitations must not amount to prior censorship, for which reason they may be established only through the subsequent and proportional imposition of liability ......................................................................................................31 ii. The limitations cannot be discriminatory nor have discriminatory effects....32 iii. The limitations may not be imposed by indirect means such as those proscribed by Article 13.3 of the American Convention ..................................33 iv. Exceptional nature of the limitations......................................................33 3. Stricter standards of control for certain limitations due to the type of speech they address ............................................................................................................34 4. Means of limitation of freedom of expression in order to protect the rights of others to honor and reputation ............................................................................35 a. General rules..........................................................................................35 vi b. Cases in which the Inter-American Court has examined the conflict between the right to freedom of expression and personal rights like public officials’ right to honor and reputation ......................................................................................43 c. Fundamental incompatibility of “desacato laws” and the American Convention 48 E. The prohibition against censorship and indirect restrictions to freedom of expression 51 1. The prohibition against direct prior censorship ...............................................51 2. The prohibition against indirect restrictions to freedom of expression by the authorities ........................................................................................................54 3. The prohibition against indirect restrictions to freedom of expression by causes other than the abuse of State restrictions .............................................................57 F. Journalists and the social communications media ..............................................59 1. Importance of journalism and the media for democracy; characterization of journalism under the American Convention ...........................................................59 2. Responsibility inherent in the practice of journalism ........................................61 3. Rights of journalists and State duties to protect the safety and independence of journalists and media outlets...............................................................................62 4. Journalists who cover armed conflict or emergency situations .........................70 5. Conditions inherent in the functioning of the media ........................................71 G. The exercise of freedom of expression by public officials....................................72
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