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.

• Author: Pasqualucci, Jo M.

ABSTRACT

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)

1. INTRODUCTION

   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. (4) Nevertheless, the diplomat brought both criminal and civil suits for defamation in Costa Rican courts. (5) Under Costa Rican law the defendant journalist bore the burden of proving the truth of the statements that he had quoted from and attributed to the foreign press. The burden was not, as would be expected, on the plaintiff to prove the falsehood of the statements. The journalist could not meet this burden and, therefore, was convicted of a crime. Both the journalist and the newspaper, who were jointly and severally liable, were ordered to pay large fines, and the name of the journalist was inscribed in the criminal register. (6) The journalist subsequently filed a complaint with the Inter-American Commission on Human Rights (Inter-American Commission or Commission) alleging that his freedom of speech was violated by the criminal conviction. (7) The Commission found in his favor. (8) When Costa Rica did not comply with the Commission's recommendations, the Commission filed an application with the Inter-American Court of Human Rights (Inter-American Court or Court). (9)

   Laws criminalizing defamation are not uncommon throughout the world. Even some U.S. states still have criminal defamation laws. (10) Public officials and other powerful individuals can use these laws as a weapon to intimidate the media from revealing corrupt practices or publicizing incriminating information. Journalists and the media may be pressured not to write or broadcast news because its publication could result in a criminal law suit. This self-censorship of the media negatively affects the public's right to information.

   Criminal defamation laws are one manner of repressing freedom of expression. Other forms of repression may be direct, as in the form of censorship, or may be indirect, by a means intended to exert control over the media or to have a chilling effect on one journalist or the profession as a whole. Repression may take the forms of physical harassment, imprisonment, or murder of journalists; failure to diligently investigate or prosecute crimes against the media; compulsory government licensing of journalists; or the requirement that a journalist reveal anonymous sources. Alternately, a State may fail to promulgate or enforce laws that will protect freedom of expression, such as access to information laws or laws prohibiting a monopoly of the media.

   Often the person whose freedom of expression is threatened has no recourse in domestic courts, either because the law favors the powerful 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 secure their human 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, before the Inter-American Court of Human Rights. In European States, alleged victims can bring a case before the European Court of Human Rights. For victims throughout the world, the U.N. Human Rights Committee (UNHRC) may be authorized to consider individual complaints. This Article will critique the contributions made by the Inter-American Court of Human Rights to the growing international jurisprudence on freedom of expression. Whenever possible, the Inter-American Court's response will be analyzed in light of the jurisprudence of the European Court of Human Rights and the decisions of the UNHRC. 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 on Human Rights (American Convention).

   The Inter-American Court's jurisprudence on freedom of expression and freedom of the press has been influential in the developing democracies of the Americas. Its decisions and reasoning may also influence other international fora. While the Inter-American Court has addressed many of the pressing issues confronting journalists and the mass media internationally, the Court has not fully utilized every opportunity to influence the development of an international jurisprudence on freedom of expression. An international human rights tribunal such as the Inter-American Court should not limit itself to the most restrictive view of the issues presented in a case. Human rights issues must be decided on the international level so that subsequent victims may receive justice in national courts. The Inter-American Court sits only part-time. (11) Even the European Court, which is a full-time court, has a serious backlog of cases. (12) These courts do not have the resources to repeatedly decide cases involving the same rights. For this reason, the Court must seize each opportunity to develop an international jurisprudence in areas of controversy.

   Part II of this Article briefly describes the Inter-American human rights system so as to lay a foundation for its decisions and opinions. Part III sets forth freedom of expression under the American Convention. Part IV analyzes the American Convention's limits on censorship. Part V interprets permissible restrictions on freedom of expression, including restrictions to protect reputations and national security, as well as the Convention's treatment of propaganda for war and hate speech. This Part also contains an extensive analysis of the Inter-American Court's recent decisions on criminal defamation. Part VI evaluates the juridical contributions of the Inter-American Court to freedom of the press, focusing on the effective use of interim measures to curtail harassment of journalists and jurisprudence prohibiting the mandatory State licensing of journalists. It also discusses future issues that the Court may have to confront, such as contempt laws for a journalist's refusal to reveal sources, and suggests an analysis of these issues. Part VII discusses areas in which States may inhibit freedom of expression by failing to promulgate or enforce access to information laws and the monopolization of ownership of the media.

2. THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

   A brief description of the Inter-American human rights system is necessary for an understanding of the impact of the jurisprudence of the Inter-American Court of Human...