"...Llamad a la previa censura, revisión o aprobación, junta protectora o
tribunal de libertad, consejo literario o
consejo de hombres buenos, admonición ministerial de carácter amistoso, dadle si queréis nombres
más decentes y
amables que éstos y no tendréis otra cosa por resultado, que el régimen...absolutista..."
Juan Bautista Alberdi(1)
Freedom of expression and information in the American Convention on Human Rights. The prohibition of
prior censorship in the American Convention. Prior censorship and the double dimension of freedom of
expression. The conventional possibilities for prior censorship. The protection of honor, subsequent
imposition of liability and prior censorship. Freedom of Expression without consideration of frontiers.
Conclusion.
Francisco Felipe Martorell Cammarella, a Chilean journalist was the acting general editor
of "Análisis," a seminal Chilean periodical, when in November of 1991, he published an article in
"Análisis" where he described the activities of Santiago Spinoza Melo, Argentina's ex-Embassador
to Chile. One year later a publishing company contacted Martorell with the intention of soliciting
him to write a book about the theme. This book, entitled "Diplomatic Impunity" (Impunidad
diplomática) was published in Argentina on the 21 of April 1993, and was planned to be published
in Chile the next day.
However, days before the book was presented, one of the people mentioned in the book --Andrónico Luksic Craig--
submitted a petition of protection before the Court of Appeals in
Santiago, Chile, requesting the prohibition of the distribution of the book in Chile; the Seventh
Chamber of this court resolved to assign a temporary injunction to suspend the import, distribution
and circulation of the book within the country.(2) On the 31st of May, 1993, the Court of
Appeals, in
a divided vote, decreed a permanent prohibition with respect to the book. On the 15th of June ,
1993, the Chilean Supreme Court of Justice confirmed the decision of the Court of Appeals. To this
date, the country's authorities have not allowed the book to enter Chile or to circulate commercially.
Having exhausted domestic remedies, Martorell in conjunction with the Center for Justice
and International Law (CEJIL) and Human Rights Watch/Americas, presented a petition before the
Inter-American Commission on Human Rights,(3) on the 23 of December 1993. This petition argued
that the State of Chile violated Article 13(2) of the American Convention on Human Rights,(4)
ratified by the State of Chile on August 21, 1990.
Using this case, the final report for which was approved by the Inter-American Commission
in May of this year.(5) This paper will analyze the prohibition of prior censorship established
in the
American Convention and at the same time, make a comparison between this case and another from
Granada, also about prior censorship, resolved by the Inter-American Commission in the last year.(6)
Before entering into the substance of the argument, it is important to note that the Inter-American Court of Human
Rights(7) has not yet had a case relating to freedom of expression under
its contentious jurisdiction and there have been very few cases relating to freedom of expression
presented before the Inter-American Commission.(8)
Freedom of expression and information in the American Convention on Human Rights
The American Convention on Human Rights preserves and protects a very wide conception
of freedom of thought and expression. In terms of the protection of freedom of expression, the
Convention intends to protect the autonomy of persons and to protect their right to express, create
and receive information; at the same time it intends to ensure the function of democracy to guarantee
the free exchange of ideas in the public forum.(9) The Convention recognizes the right to
freely
express oneself in the title and first subsection of Article 13.
Article 13. Freedom of Thought and Expression.
1. Everyone has the right to freedom of thought and expression. This right includes
freedom to seek, receive and impart information or ideas of all kinds, regardless of
frontiers, either orally, in writing, in print, in the form of art, or any other medium of
one's choice.
According to the Inter-American Court of Human Rights, "freedom of expression constitutes
the primary and basic element of the public order of a democratic society, which is not conceivable
without free debate and the possibility that dissenting voices be fully heard.(10)
The Convention seeks
to maximize the possibilities for participation in public debate especially, considering that in addition
to protecting the expression of ideas, the Convention recognizes the collective right to be informed
and the right of reply.(11) The Convention guarantees the right to information with the
intention of
promoting and protecting the diversity of sources; and also the right to reply in order to assure access
to the public forum for those affected by inexact or defamatory information.
This wide conception of freedom of expression and information requires that the Convention
establish strict limits on the restriction of liberty. The Convention contains general norms in order
to interpret potential restrictions to the rights it guarantees;(12) in the case of freedom of
expression,
these general provisions are complemented by the specific limits established in Art.13 of the
Convention.
Pursuant to the general rules established in the Convention, freedom of expression is not an
absolute right, but one that admits restrictions(13) in order to accommodate its exercise with
the rights
of others, the security of all and the necessities of the common good in a democratic society (Art.32
of the Convention).(14) However, the restrictions on freedom of expression can not be more
extensive
than those established in Art.13 (as established in Art. 29 of the Convention), nor may they be
applied, "except in accordance with laws enacted for reasons of general interest and in accordance
with the purpose for which such restrictions have been established." (Art. 30 of the Convention).
More specifically, Art.13 dedicates the second and third subsections to the establishment of
limits and restrictions on the right to freedom of expression, creating a six-point test to evaluate the
legitimacy of those restrictions. Article 13 subsection 3 develops a final limitation which prohibits
indirect restrictions to the right to freedom of expression:
13.3. The right of expression may not be restricted by indirect methods or means, such
as the abuse of government or private controls over newsprint, radio broadcasting
frequencies, or equipment used in the dissemination of information, or by any other means
tending to impede the communication and circulation of ideas and opinions.
The prohibition of prior censorship in the American Convention.
The American Convention, following the tradition of constitutional Latin America,(15)
expressly prohibits any form of preventative methods in the limitation of the exercise of freedom
of expression. In its article 13(2) the American Convention clearly establishes that:
The exercise of the right provided for in the preceding paragraph [freedom of expression]
shall not be subject to prior censorship but shall be subject to subsequent imposition of
liability...
In order to interpret this subsection the Court established that:
Abuse of freedom of information thus cannot be controlled by preventative measures but
only through the subsequent imposition of sanctions on those who are guilty of the abuses.(16)
It is interesting to note a comparison between the American Convention and its
contemporaries at the universal and regional level which, ultimately, reveals the special protection
of freedom of expression that the American Convention contains. It becomes clear that the only
instrument that expressly includes the prohibition of prior censorship is the American Convention.
Neither the International Covenant on Civil and Political Rights of the United Nations, nor the
European Convention, nor the African Charter contain explicit references to the proscription of all
methods of preventative controls on the freedom of expression.(17)
In fact, as the Inter-American Court has established, there is an intentional difference in the
text of article 13 of the Convention, as compared to article 19 of the Covenant or article 10 of the
European Convention on Human Rights,(18) which
indicates clearly that the guarantees contained in the American Convention regarding
freedom of expression were designed to be the most generous and to reduce to a bare
minimum the restrictions impeding the free circulation of ideas(19)
In the comparison of the critical distinction between prior censorship and subsequent
imposition of liability, it is important to compare Article 13 (2) of the Convention with article 19 of
the International Covenant on Civil and Political Rights,(20) which served as a model for the
Convention. As Judge Rodolfo Piza Escalante, a former judge of the Inter-American Court, has
noted,
Article 19 (3) of the International Covenant corresponds almost exactly with article
13 (2) of the American Convention, except in so far as the latter adds the barring of
all prior censorship and to which it expressly substituted the possibility of "certain
restrictions," of the former for that of "subsequent imposition of liability," (21)
The differences in the texts of the two treaties, emphasized Judge Piza, "cannot be
considered accidental or semantical but intentional and substantive."
Article 13 (2) contains a clear and intentional distinction between "prior censorship" and
"subsequent imposition of liabilities," the first being expressly prohibited and the second being
lawful only in limited cases, when necessary to secure respect for the rights or reputation of others.
The objective of this fortunate disposition is to construct a procedural guarantee for freedom of
thought(22) to prevent a priori exclusion of certain people, groups, ideas and means
of expression from
the public debate.(23)
According to Article 13(2), prior censorship is prohibited independently of whether it is
established by judicial or executive authority. The distinctive characteristic of prior censorship is
not determined by the branch of state power that restrains the freedom. The crux of censorship
consists in the limitation by the state -- through any of its organs -- of the exercise in the future of
the right to freedom of expression. In fact, the Inter-American Court has established, in a wide and
unconditional manner, that any preventative measure constitutes prior censorship, and ultimately,
an impairment of free speech.
Article 13.2 of the Convention....stipulates, in the first place, that prior censorship is always
incompatible with the full enjoyment of the rights listed in Article 13, but for the exception
provided for in subparagraph 4 dealing with public entertainments, even if the alleged
purpose of such prior censorship is to prevent abuses of freedom of expression. In this area
any preventative measure amounts to an infringement on the freedom guaranteed by the
Convention.(24)
The time when the censorship is realized rather than the precise character of the involved
agent of the state, is the determinant to distinguish prior censorship from a legal restriction.(25)
Clearly, the drafters of the American Convention did not intend to limit the prohibition of prior
censorship only to certain practices. On the contrary, taking into account the experience of the
Americas, they abolished prior censorship in general, indistinctly from the branch of government
that acts as censor.
Taking this into account in the Martorell case, the Inter-American Commission did not
accept the argument of the Chilean government that there would not be prior censorship but only "an
independent decision of the tribunals based on Chilean law."(26) In response, the Commission
found
that:
the State of Chile, by means of the resolution of the Supreme Court of Justice...has
violated article 13 of the American Convention on Human Rights.(27)
Prior Censorship and the double dimension of freedom of expression
All of the jurisprudence in the Inter-American system of protection for human rights has
been constructed in light of the double aspect of freedom of expression. In effect, it is considered
that this freedom has an individual dimension, represented by the right of every person to impart
ideas and information; at the same time there is a collective aspect, consisting of the right of the
entire society to receive those ideas and information.(28)
Here, the Commission has held that:
freedom of expression is precisely the right of the individual and of the entire
community to engage in active, challenging and robust debates, about all issues
pertaining to "the normal and harmonious functioning of society."(29)
From this perspective, any violation of freedom of expression affects not only the person
directly involved but also the society as a whole. Here the Inter-American Court, in the previously
cited Advisory Opinion OC-5/85, has stated that:
...when the individual's freedom of expression is unlawfully restricted, it is not only
the right of that individual that is being violated, but also the right of all others to
"receive" information and ideas...It requires, on the one hand, that none will be
arbitrarily limited or impeded in expressing his own thoughts. In that sense it is a
right that belongs to each individual. Its second aspect, on the other hand, implies
a collective right to receive any information whatsoever and to have access to the
thoughts expressed by others.(30)
If these considerations are valid for freedom of expression in its entirety, they are especially
valid in the analysis of prior censorship. At this point it should be established that prior censorship
not only affects the individual, but that simultaneously, it affects the entire society's right to receive
a publication, idea, thought, opinion, artistic expression, etc. Thus, these two dimensions "of
freedom of expression need to be guaranteed simultaneously."(31)
The Inter-American Court has engaged in a concrete application of these two dimensions,
noting that if there is prior censorship it produces "an extreme violation of the right to freedom of
expression" by "impeding the free circulation of information, ideas, opinions or news." This
constitutes an extreme violation:
not only in that it violates the right of each individual to express himself, but also
because it impairs the right of each person to be well informed, and thus effects one
of the fundamental prerequisites of a democratic society.(32)
In the two cases under analysis, the Inter-American Commission has followed this
jurisprudence very closely, and reiterates, in both cases, that freedom of expression has an individual
dimension as much as a social dimension.(33) In spite of this similar analysis, the
conclusions reached
in each of the above cases are different. In a manner consistent with the jurisprudence discussed
above, the Commission signal, in the Grenada case, that prior censorship, consisting of the
confiscation and the prohibition of books has:
the effect of imposing "prior censorship" on the freedom of expression, and therefore
has violated the two-fold aspects of the right to receive and impart information to
"everyone"(34)
By contrast, in the Martorell case -- in spite of citing identical jurisprudence-- the
Commission concluded that only the right to impart information and ideas was violated, without any
mention of the right of society to receive information and ideas. In effect the Commission
established that:
the decision to prohibit the import, circulation, and the distribution of the book
"Diplomatic Impunity," in Chile infringed on the right to impart "information and
ideas of any kind" that Chile is obligated to respect.(35)
The conventional possibilities for prior censorship
Although it was not directly discussed in the cases under discussion, it is important to note
that the American Convention, along with its express prohibition of prior censorship, contains two
possibilities for the establishment of preventative controls on the exercise of freedom of expression.
One of these is explicit and the other implicit. The only explicit possibility for establishing prior
censorship is contained in Article 13.4:
public entertainments may be subject by law to prior censorship for the sole purpose
of regulating access to them for the moral protection of childhood and
adolescence...(36)
Certainly, this clearly delineated exception refers to the fact that prior censorship is under any
other circumstance illegal. Here again, it is useful to refer to the words of the Court:
prior censorship is always incompatible with the full enjoyment of the rights listed
in Article 13, but for the exception provided for in subparagraph 4 referring to public
entertainments.(37)
The second possibility for the establishment of prior censorship is seen in the case presented
by a state of emergency that permits the suspension of certain guarantees. In the American
Convention, this possibility is governed by Article 27. Freedom of expression is not included
among the non-derogable rights (Art.27.2). For that reason, prior censorship could be employed in
these circumstances.(38)
It is clear, in any case, that prior censorship may not be employed, even in a state of
emergency, unless the strict requirements of Article 27.1 of the Convention are met.(39) In
such cases,
the acceptability of prior censorship would depend on the character, intensity, profundity and the
particular context of a state of emergency, as well as the proportionality and reasonableness that the
prior censorship would hold in relation to the emergency.(40)
The protection of honor, subsequent imposition of liability
In general, however, the permissible limitations on freedom of expression, as mentioned
above, consist in the imposition of subsequent liabilities. In its jurisprudence, the Court excludes
the possibility of effecting any type of prior censorship, authorizing only the subsequent imposition
of liabilities, but reasoning that:
Even here [in the subsequent imposition of sanctions] in order for such liability to be valid,
under the Convention, the following criteria must be met:
a. the existence of previously established grounds for liability;
b. the express and precise definition of these grounds by law;
c. the legitimacy of the ends sought to be achieved;
d. a showing that these grounds of liability are "necessary to ensure" the
aforementioned ends.
All of these requisites must be met in order to completely adhere to article 13.2.(41)
The States, conscious of the urgent necessity to maintain a balance between fundamental
human rights, at the moment of drafting the Convention, delineated in a clear and precise manner,
the right of freedom of expression and the right to have one's honor respected. In regard to this
balance, in Article 13(2), the Convention specifically establishes a fundamental difference between
"prior censorship" and "subsequent imposition of liability." Emerging from the premise that the
imperative nature of the right to free expression prohibits in an absolute manner any recourse to
prior control as a means of protection for the right to honor, the Convention concludes that "the
subsequent imposition of liability" constitutes the appropriate and acceptable means in order to
prevent abuses in the exercise of the right to freedom of expression that could affect the right to
honor and other rights.
The distinction between prior censorship and the subsequent imposition of liability, on this
point, was essential in the resolution of the two cases under analysis. However, the Inter-American
Commission again differentiated in the criteria applied in each case. In effect, in the case of Granada
the Inter-American jurisprudence is set aside, without explanation and the Commission opens a
dangerous line of interpretation. The Commission maintains that the Government did not
demonstrate that the content of the books in question fell within the exceptions provided in Article
13 on the grounds that they affected the human rights or the reputation of others, or the protection
of national security, or the public order, or public health, or public morality, and therefore, that they
would be subject only to the subsequent imposition of liability.(42)
The Commission does not clearly state whether it considers that there exists an exception to
the explicit prohibition of prior censorship (par. 5, on the grounds established in subparagraph 2 of
Article 13) or if there is only the possibility of establishing subsequent liability (par.6). What would
have happened if the Government had demonstrated or proved -- as was attempted in the Martorell
case-- that what the book contained would affect the public order, morality etc.? Would that justify,
before the Commission, prior censorship? The Commission should have established, in conformity
with article 13.2 of the Convention, not merely a failure of proof, to prove intent, but also the legal
impossibility of establishing preventative controls on freedom of expression.
In the Martorell case, the Commission explicitly and notably differentiates from the previous
case, indicating that "it is not for the Commission to examine the content of the book in question
or the conduct of Mr. Martorell, because it does not have competence in the matter... "(43) In that
ruling, the Commission agreed that the right to honor was required to be protected under Chilean law
and that those persons whose honor and dignity was found to be harmed "have, in the Chilean
Courts, adequate remedies to settle that question."
However, the Commission failed to establish what would happen if there were no
appropriate recourse for the protection of the honor and dignity of persons in Chilean law or if that
protection only existed in the prohibition of the book. The Commission thus did not explicitly reject
the governmental thesis that it might be possible to engage in prior censorship under certain
circumstances, in spite of the explicit text of Article 13.2 of the Convention.
In the Chilean case, the Commission faced the consideration of two rights: freedom of
expression --invoked by petitioners-- and the right of honor guaranteed by article 11(44) --
presented
by the government. The Commission sustained that it could not accept the point of view of the
Chilean Government to the effect that the right to honor would take priority over the right to
freedom of expression. Applying Articles 29 and 32(45) of the Convention, the Commission held
that
the analysis of both rights (Art. 11 and 13) did not present a conflict, but that:
the dispositions of article 11 cannot be interpreted, by the organs of the state , in any
form that results in a violation of Article 13 of the American Convention, that
prohibits prior censorship...The method that the Chilean state uses to protect honor
in the current case is illegitimate.(46)
The possible conflict that could arise in the application of articles 11 and 13 of the
Convention can be solved by referring to the terms employed in the same article 13, which is to say
by the means of the imposition of subsequent liabilities for those who violate the right to honor.(47)
Freedom of expression without consideration of frontiers
There is a final point of difference in the analysis of these two cases from Granada and Chile.
Both assume that the origin of the prohibition on printing books is the state. In addition to the fact
that both cases constitute a typical example of prior censorship, prohibited pursuant to Article 13.2
of the Convention, they also both represent a violation of the first subsection of that article which
guarantees freedom of thought and expression without consideration of frontiers.
Despite what they have in common, what was decided in the Grenada case was not duplicated
in the Chilean case. First, the Grenada case holds that the preventative measures affect the "two-fold
aspects of the right to receive and impart information "to everyone" both within and outside of the
community regardless of frontiers..."(48) Later it states that: "The petitioners' right to
transport the
books to Grenada, and the right to receive such books in Grenada, are protected by Art. 13...
"(49) This point was not made in the Martorell case in spite of the fact that it also dealt
with the
prohibition on the importation and circulation of a book.(50)
Conclusion
The American Convention on Human Rights, in the area of freedom of expression contains
a text summarily guaranteeing that impediments to freedom of circulation of ideas and information
should be reduced to a minimum, emphasizing especially the fundamental distinction between prior
censorship and subsequent imposition of liability and absolutely prohibiting the first of these.
Understanding that the Inter-American Court of Human Rights has not yet had the
opportunity to resolve a case about freedom of expression, the Court has taken opportunities to
develop jurisprudence that prohibits, as a violation of the Convention, any type of preventative
measures limiting the exercise of the freedom of expression.
For its part, the Inter-American Commission on Human Rights, in the last year has
confronted two cases of prior censorship. Despite the similarity of the cases to be decided, the
analysis of the Commission in each was different. However, what is most important is that the
Commission, acting in accordance with the jurisprudence of the Court, has established that prior
censorship, characterized in both cases by the denial of entry of publications in the country,
constitutes a violation of freedom of expression guaranteed by article 13.2 of the American
Convention.
1. Juan Bautista Alberdi, Obras Completas, Bs. As. 1886, t. III, p. 107.
2. Order to suspend prohibiting the "import and commercialization" of the book in Chile.
3. Hereafter "the Commission" or "the Inter-American Commission."
4. Hereafter "the Convention" or "the Inter-American Convention."
5. Report No. 11/96, case 11.230-Chile, May 3, 1996.
6. On March 8, 1989 in the Point Salines airport in Grenada, four cases of books were retained
by the police, impeding their entry into the country. The books were addressed to Terence
Marryshow (leader of the Maurice Bishop Patriotic Movement) from Pathfinder Press in New
York. See Report No. 2/96, case 10.325-Grenada, March 1, 1996.
7. Hereafter "the Court," or the "Inter-American Court."
8. José Thompson, La libertad de prensa en el sistema interamericano de
protección a los
derechos humanos, in The modern World of Human Rights, San José, 1996, p. 231.
9. I have omitted an extensive development of the different philosophical positions that justify
freedom of expression.
10. Inter-American Court of Human Rights. Compulsory Membership
in an Association
Prescribed by Law for the Practice of Journalism. (Arts.13 and 19 American Convention on
Human Rights), Advisory Opinion OC-5/85 November 13, 1985. Series A No. 5. (Hereafter OC-5/85), par. 69.
11. Article 14 of the American Convention recognizes the right to reply. In its first subsection
it
notes: "Anyone injured by inaccurate or offensive statements or ideas disseminated to the public
in general by a legally regulated medium of communication has the right to reply or to make a
correction using the same communications outlet, under such conditions as the law may
establish." See Advisory Opinion OC-7/86 Enforceability of the Right to Reply or Correction
(Arts. 14.1 and 1.1 and 2 American Convention on Human Rights).
12. Among others Article 29: "No provision of this Convention shall be interpreted as
permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights
and freedoms recognized in this Convention or to restrict them to a greater extent that is provided
for herein;" Article 30: "The restrictions that, pursuant to this Convention, may be placed on the
enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in
accordance with laws enacted for reasons of general interest and in accordance with the purpose
for which such restrictions have been established;" Article 32.2: "The rights of each person are
limited by the rights of others, by the security of all, and by the just demands of the general
welfare, in a democratic society."
13. The Inter-American Court has defined the concept of restrictions in the context of freedom
of expression in the following manner: "liabilities imposed by law for the abusive exercise of
freedom of expression", OC-5/85, par. 35.
14. Thus, for example, Art..13 is one of those that can be suspended in accordance with the
provisions of Art. 27 of the Convention.
15. Constitution of the Republic of Honduras . Art. 72 (with a possible exception previewed in
Art. 72);Constitution of the Republic of Venezuela, Art. 66; Constitution of the Nation of
Argentina, Art. 14; Political Constitution of the Republic of Panama, Art. 37; Political
Constitution of the Republic of Costa Rica, Art. 29, Constitution of the Federal Republic of
Brazil, Art. 5.IX; Political Constitution of the United States of Mexico, Art. 7; Constitution of
the Republic of Uruguay, Art. 29; Political Constitution of the Republic of Chile, Art. 19.12;
Political Constitution of the Dominican Republic, Art. 8.6; Political Constitution of Peru, Art.
2.4; National Constitution of Paraguay, Art. 26 and 29 (pertaining to a the right of a journalist to
publish his opinions without censorship, in the medium in which he works); Political
Constitution of Nicaragua, Art. 67 and 68 (pertaining to the prohibition of prior censorship in
mediums of communication); Political Constitution of the Republic of Guatemala, Art. 35;
Political Constitution of Colombia, Art. 20; Political Constitution of the Republic of El Salvador,
Art. 6. Cf. Humberto Quiroga Lavié, Derecho Constitucional Latinoamericano, Universidad
Nacional Autónoma de Méxcio, 1991, pp. 165 et seq.
16. OC-5/85, par.39. Emphasis added.
17. See article 19 of the International Covenant on Political and Civil Rights, Art. 10 of
European Convention and Article 9 of the Charter of Banjul. It is interesting to note that the
Principles of Johannesburg on National Security, Freedom of Expression and Access to
information establish that: "Principle 24: Expression cannot be an object of prior censorship in
the interests of protecting national security, except in times of public emergency that threatens
the life of the country in accord with the conditions established in Principle 3" (author's
translation).
18. For an analysis of the permissibility of previous controls in European jurisprudence,
consult, Louis Eduard Pettiti and others. La Convention Européene des Droits de L'Homme,
Economica, 1995, p. 387.
19. OC-5/85, par. 50. The drafters of the American Convention did not follow the model
of the
First Amendment of the American Constitution. Neither did they follow Article 19 of the
Universal Declaration of Human Rights. They articulated a general principle and did not specify
permissible limitations on freedom of expression. Perhaps in the decision between rules and
discretion they had in mind the particular characteristics of our politics and the strengths and
weaknesses of our institutions. See Stephen Macedo, Rule of Law, Justice and the politics of
moderation, in The Rule of Law, Nomos XXXVI, New York University Press, 1994, p. 168.
20. In the discussion of the drafting of the Covenant, 11 American States proposed a similar
text to that which would subsequently become Art. 13.2 of the American Convention, prohibiting
prior censorship. Manfred Nowak, UN Covenant on Civil and Political Rights, N.P. Engel
Publisher, 1993, p. 349.
21. OC-5/85, separate opinion of Judge Piza Escalante, par. 8. In fact, the Court had
already
observed the differences in the texts of the two in the same Advisory Opinion. par. 45.
22. Carlos Nino speaks about the procedural restrictions or procedural guarantees established to
protect freedom of expression, concluding that among them the prohibition of prior censorship is
the best method of diminishing the danger of abuses of freedom of expression. Fundamentos de
Derecho Constitucional, Astrea, Bs.As., 1992, pp. 267 and 275.
23. OC-5/85, par. 34. The Constitutional Chamber of the Costa Rican Supreme Court of
Justice, in sentence # 2313-95 May 9, 1995 applied this jurisprudence to consider illegal the
compulsory membership of journalists in associations and interpreted that this Advisory Opinion
of the Inter-American Court was obligatory for the State.
24. OC-5/85, par. 38 (emphasis added).
25. The Supreme Court of the United States, in its first concrete pronouncement on prior
censorship, concluded that the fact that censorship originated from Judicial power instead of the
Executive, was irrelevant in condemning the act. See Near v. Minnesota, 283 U.S. 697 (1931)
(overturning a decision that censured a periodical for being considered "malicious, scandalous
and defamatory," on the basis that said decision constituted prior censorship). Further still, in
subsequent cases the Court has consistently reaffirmed this basic rule. See Blasi, Toward a
Theory of Prior Restraint, 66 Minn. L. Rev. 11,15 (1981) (establishing that judicial decisions
against the publication or diffusion of information lie "in the heart of the doctrine of prior
censorship"); Hunter, Toward a Better Understanding of the Prior Restraint Doctrine, 67 Cornell
L. Rev. 283 (1982)(concluding that judges are no better suited to administer a system of
censorship than bureaucrats).
26. Report 11/96, pp. 7 and 8.
27. Report 11/96, Conclusions and Recommendations, p. 17.
28. The Supreme Court of Argentina speaks of a third dimension which is the right of the
owners of the press. Case "Ponzetti de Balbín c/Editorial Atlántida", Fallos 306:1892, consid. 7.
29. Report on the compatibility of the "desacato" laws with the Inter-American Convention on
Human Rights, in Annual Report of the Inter-American Commission on Human Rights 1994,
Washington, D.C., 1995, p. 218.
30. OC-5/85, par. 30.
31. OC-5/85, par. 33.
32. OC-5/85, par. 54.
33. Report 2/96, point 4 and Report 11/96, pp. 9 and 10.
34. Report 2/96, point 5.
35. Report 11/96, pp. 11.
36. The Convention on the Rights of the Child in Article 13 includes wording similar to Article
19 of the Covenant on Civil and Political Rights. Article 1, section (e) of the Convention on the
Rights of the Child requires state parties to "Encourage the development of appropriate
guidelines for the protection of the child from information and material injurious to his or her
well-being, bearing in mind the provisions of Articles 13 and 18. " This wording is significantly
less guaranteeing of freedom of expression than what is contained in the American Convention.
37. OC-5/85, par. 38.
38. Various Latin American Constitutions expressly establish that during exceptional
circumstances one can establish prior censorship. For example, Political Constitution of Bolivia,
Art. 112 (authorizing censorship in the case of international war), Political Constitution of the
Republic of Chile, Art. 41 (regarding the state of exception that authorizes the President of the
Republic to enforce censorship), Political Constitution of the Republic of Ecuador, Art. 79
(permitting the President of the Republic, during states of national emergency, to establish prior
censorship).
39. That article indicates that: "In times of war, public danger, or other emergency that
threatens
the independence or security of a State Party, it may take measures derogating from its
obligations under the present Convention to the extent and for the period of time strictly required
by the exigencies of the situation, provided that such measures are not inconsistent with its other
obligations under international law and do not involve discrimination on the grounds of race,
color, sex, language, religion, or social origin."
40. The Inter-American Court, Advisory Opinion OC-8/87, Habeas corpus in Emergency
Situations (Arts. 27.2, 25.1 and 7.6 American Convention on Human Rights), par. 21 and 22.
41. OC-5/85, par. 39.
42. Report 2/96, paragraphs 5 and 6 respectively.
43. Report 11/96, pp. 12.
44. That Article establishes: "1. Everyone has the right to have his honor respected and his
dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his
private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or
reputation. 3. Everyone has the right to the protection of the law against such interference or
attacks."
45. See note 11.
46. Report 11/96, pp. 13.
47. Report 11/96, pp. 14.
48. Report 2/96 Case 10.325. Sect. VII, b. Par. 5.
49. Report 2/96 Case 10.325. Sect. VII, b. par.8.
50. The recognition of freedom of expression without consideration of frontiers has been
illuminated by the United Nations Special Rapporteurs on the theme. Danilo Turk and Louis
Joinet in their Preliminary report and Final report on The right to freedom of opinion and
expression, E/CN.4/Sub.2/1990/11, par. 33-35 y E/CN.4/Sub. 2/1992/9, par. 47, respectively.
