Criminal Defamation and the Evolution of the Doctrine of Freedom of Expression in International Law: Comparative Jurisprudence of the Inter-American Court of Human Rights
Pasqualucci, Jo M., Vanderbilt Journal of Transnational Law
Restrictions on freedom of expression may take direct and indirect forms. A state may censor speech, criminalize defamation, harass the media or individual journalists, fail to investigate crimes against the media, require the compulsory licensing of journalists, or fail to enact freedom of information laws or laws that prohibit monopoly ownership of the media. A victim of a restriction on freedom of expression that violates international law may have no recourse in domestic courts, either because state law offers no remedy or because judges are too intimidated to enforce the laws as written. In such instances, victims need recourse to an international forum to protect and enforce their rights. In the Western hemisphere individual allegations of violations of freedom of expression may be brought before the Inter-American Commission on Human Rights and, dependent on jurisdiction, tried by the Inter-American Court of Human Rights. These organs have developed a progressive case law on the right of freedom of expression. The Author critiques the contributions made by the Inter-American Court of Human Rights to the growing international jurisprudence on freedom of expression. Whenever possible, the Author analyzes the Inter-American Court's case holdings in light of the jurisprudence of the European Court of Human Rights and the U.N. Human Rights Committee. The Article also addresses issues that have not yet been presented to the Inter-American Court and analyzes potential issues in light of the American Convention.
TABLE OF CONTENTS I. INTRODUCTION II. THE INTER-AMERICAN HUMAN RIGHTS SYSTEM III. FREEDOM OF EXPRESSION UNDER THE AMERICAN CONVENTION IV. PRIOR CENSORSHIP BARRED V. RESTRICTIONS ON FREEDOM OF EXPRESSION A. Restriction to Protect Reputation: Defamatory Statements 1. The Inter-American Court's Jurisprudence on Defamation 2. Higher Level of Protection for Statements about Persons Engaged in Activities of Public Interest 3. Alternate Remedy for Defamation: Civil Suits 4. Alternate Remedy: Right to Reply 5. Burden of Proof and Defenses in Defamation Actions 6. No Defamation for Value Judgments B. Restrictions for the Protection of National Security C. Indirect Restrictions on the Media not Permissible D. Propaganda for War and Hate Speech Punishable VI. FREEDOM OF THE PRESS IN THE INTER-AMERICAN SYSTEM A. Harassment, Imprisonment, and Murder of Journalists B. Mandatory State Licensing of Journalists C. Contempt Laws for Refusal to Reveal Sources VII. FAILURE TO PROMULGATE LAWS TO PROTECT FREEDOM OF EXPRESSION A. Access to Information Laws B. Monopolization of Ownership of the Media VIII. ACCESS TO THE MEDIA IX. CORRESPONDING DUTIES AND RESPONSIBILITIES X. CONCLUSION
"Real democracy exists only when individuals are free to say what they think, and to receive and impart information." (1)
In a landmark international case on freedom of expression, the Inter-American Court of Human Rights held that the Costa Rican government had violated the right to freedom of expression of a Costa Rican journalist as a result of his criminal conviction in national courts for defamation. (2) The journalist had written a series of articles for the well-known Costa Rican newspaper, La Nacion, concerning Costa Rica's honorary representative to the International Atomic Energy Commission in Europe. The articles quoted or reproduced parts of several articles from Belgian newspapers which alleged that the Costa Rican representative had engaged in illegal activities such as drug trafficking and tax fraud. (3) The journalist presented both sides of the story and even printed a letter from the diplomat disputing the allegations. …