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Advancing understanding of the norms and institutions
that best protect the free flow of information and expression.
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Dear Friends,
At our joint CGFoE and UNESCO Conference and Anniversary Celebration this past spring, we discussed breakthrough verdicts on freedom of expression from regional perspectives. Eduardo Bertoni, CGFoE expert and Director of the Center for Human Rights and Humanitarian Law at American University Washington College of Law, spoke of the recent developments in the jurisprudence of the Inter-American System of Human Rights:
“When I started in 2002 as Special Rapporteur for Freedom of Expression [of the Inter-American Commission of Human Rights, IACHR], many people asked me what I do. I would say, “I study the Inter-American System of Human Rights and particularly freedom of expression decisions.” My colleagues in Europe would ask, “How many cases do you have?” At the time, none. The Inter-American System was looking at what the European System was doing because the developments on freedom of speech in Europe then were very robust. My view is that the situation is changing. Now we have a lot of cases decided by the Inter-American System and, in some aspects, they are much better.”
This week, we are focusing on freedom of expression in Latin America. The cases we are bringing speak directly to Eduardo Bertoni’s view. The situation is, indeed, changing: the cases point to emerging standards on a range of freedom of expression issues in Latin America. They are rulings on whistleblower protection, SLAPPs, and judicial harassment.
In his take on Viteri v. Ecuador, one of the cases we are featuring, Edison Lanza, UNESCO Consultant and former Special Rapporteur for Freedom of Expression of the IACHR, underscored that the Inter-American Court of Human Rights established a link between the right to freedom of expression, as per Article 13 of the Convention, and the protection of whistleblowers who report corruption. “In a continent where the scourge of corruption continues to be a factor that undermines democratic stability,” Lanza wrote, “this judgment constitutes a milestone capable of promoting legislative changes and good judicial practices in the region.”
The progress, however, does not come without setbacks and significant challenges. Freedom of expression is in dire need of safeguarding, especially in countries like Venezuela and Nicaragua, as this week’s news highlights show. With the rise of authoritarianism, a dialogue between domestic and international bodies is even more crucial to nurture, and the Inter-American freedom of expression standards show they have the potential to restrain repressive advances on fundamental rights.
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Inter-American Court of Human Rights
Memoria Activa v. Argentina
Decision Date: January 26, 2024
The Inter-American Court of Human Rights (IACtHR) held that Argentina violated the right of access to information, protected under Article 13 of the American Convention on Human Rights (ACHR), by denying the victims of the 1994 bombing of the Argentinian Israelite Mutual Association (AMIA)—and their families—access to classified information related to the circumstances and motives of the attack. The case was brought by the civil association Memoria Activa, which denounced Argentina's failure to investigate, punish, and seek the truth regarding the 1994 bombing, in which 85 people died and more than 150 were injured. The Inter-American Commission on Human Rights and Memoria Activa alleged that the State Intelligence Secretariat (SIDE) had classified all relevant information, preventing access to it and proper oversight of the investigation. In addition, they claimed that SIDE used secret funds to divert the investigation and cover up for those responsible. For its part, Argentina acknowledged its international responsibility for not preventing the attack, covering up the facts, and violating the victims' rights to access information and to the truth.
The Court found that the SIDE's classification and manipulation of the information hindered access to the truth and the possibility of seeking justice—which contributed to the impunity of those responsible. The IACtHR emphasized that the restrictions on access to information imposed by Argentina did not comply with the principles of legality, necessity, and proportionality—required by Article 13 of the ACHR to limit freedom of expression validly. Furthermore, the Court held that the right to the truth is essential not only for the victims and their relatives but also for society as a whole. It concluded that the State failed to guarantee real and effective access to state archives and to provide an official version of what happened almost 30 years after the attack.
Viteri v. Ecuador
Decision Date: November 27, 2023
The Inter-American Court of Human Rights (IACtHR) held that Ecuador violated the right to freedom of expression, under Article 13 of the American Convention on Human Rights, of Captain Julio Rogelio Viteri Ungaretti by sanctioning him with prison sentences and termination of employment for denouncing acts of corruption in the armed forces. Viteri, an Ecuadorian military officer, faced multiple disciplinary sanctions—including four arrests, dismissal from military service, persecution, harassment, and threats that led them to seek political asylum in the United Kingdom—after denouncing alleged corruption acts within the Armed Forces of his country and making unauthorized statements to the media about the issue. Both Viteri and the Inter-American Commission on Human Rights asked the IACtHR to declare that Ecuador was internationally responsible for violating Viteri’s right to freedom of expression by not taking into consideration the public interest of the captain’s allegations. For its part, Ecuador argued that the sanctions were prescribed by law, legitimate, necessary, and proportional. The IACtHR held that the sanctions issued against Mr. Viteri were a retaliation for his allegations about corruption. According to the Court, the impugned statements benefit from protection under the right to freedom of expression. The Court emphasized the importance of protecting persons who uncover corruption, stating that such disclosures are of great public interest and essential to democracy and transparency. The Court noted that domestic military regulations requiring prior authorization to make statements to the media were excessively restrictive and hindered the free flow of information on matters of public interest. Consequently, the IACtHR awarded damages in favor of the petitioner and his family and ordered Ecuador to acknowledge the violations and apologize. It also ordered the State to amend its domestic laws to better protect whistleblowers.
Uruguay
Rodríguez Nebot v. Coordinadora de Psicólogos and Others
Decision Date: April 16, 2024
The First Instance Civil Court of the 7th Turn of Uruguay dismissed a damages lawsuit against the local newspaper La Diaria for a report about a criminal investigation involving a senior official of the Ministry of Social Development. The lawsuit was filed by the former official and her husband who, before being appointed by the government, led a non-governmental organization related to persons with disabilities which had been investigated following several complaints from families and public institutions. The Plaintiffs claimed La Diaria’s report was “illegal” and exposed them to “public hatred” causing damages to their professional careers and health. The Court concluded that there was no “illicit act” in the publication of the report, given the public interest and “fundamental importance” of the subject matter. The Judge found no evidence that the report accused the plaintiffs of “selling children” and “deliberately expos[ed] them to hatred”. The Court determined that the language used by the journalist did not aim to harm the plaintiffs intentionally, and all the information was part of the criminal records.
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COMMUNITY HIGHLIGHTS & RECENT NEWS
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● IACHR: Special Rapporteur Welcomes with Gratification Colombia’s Presidential Directive on Duties of Authorities on Freedom of Expression. The IACHR’s Office of the Special Rapporteur for Freedom of Expression praises the signing of Colombia’s Presidential Directive on the obligations of public officials in the protection of freedom of expression and the press – the first adopted document of its kind in the region. In response to a request filed by the state of Colombia, the Office of the Special Rapporteur contributed to the initiative by providing technical advisory through which it identified that stigmas around the press posed the most potent challenge to the work of journalists in the country. The Directive emphasizes how salient the role of state officials in preserving public debate is. In its press release, the Office of the Special Rapporteur notes, “The consistent jurisprudence of the Inter-American Court of Human Rights has established that public officials, by virtue of their position as guarantors of fundamental rights, are subject to a heightened standard of due diligence when issuing public statements.”
● G20 and Digital Platforms: A Latin American Perspective. At the Group of Twenty (G20) discussions hosted by Brazil this year, the Center for Studies on Freedom of Expression and Access to Information (CELE) and Access Now presented a policy brief titled “A Latin American Perspective on Global Governance for Digital Platform Accountability.” CELE and Access Now challenge one-size-fits-all regulations in digital governance and call for more regionally informed approaches. Their brief does exactly that by centering the Inter-American System of Human Rights and its progress in the protection of freedom of expression in the digital space. “Avoid focusing on global regulations and instead support regions with strong expertise in the field, like the [Inter-American System of Human Rights],” the brief points to one of its recommendations. “While disinformation is a growing concern, particularly in contexts affecting democratic electoral processes, the response should not be the creation of prohibited content categories.” Read the document here.
● Nicaragua: New Report Documents Gag on Free Expression and the Press. Prepared by the coalition of organizations subscribing to PEN International, this report documents the intensified crackdown on freedom of expression and the right of access to information in Nicaragua, reflecting the 4th cycle of the Universal Periodic Review of the country between 2019 and 2024 by the UN Human Rights Council. The report shows Nicaragua officials have ramped up the targeting of journalists, media outlets, activists, opposition politicians, artists, and students by resorting to arbitrary arrests and imprisonment, forced exile, revoking of citizenship and property, and violations of basic rights. Moreover, Nicaragua’s legislation implemented in the last five years has considerably limited civic space. “Repeal the restrictive laws described in this report that operate contrary to international law concerning freedom of expression, artistic freedom, and freedom of demonstration,” the PEN International coalition lists this recommendation among many others, addressing Nicaraguan authorities. Read the full report in English or Spanish. Read its summary, also available in English and Spanish.
● Venezuela: UN Rights Council Should Renew Experts’ Mandate. More than 30 human rights organizations, including Amnesty International, Freedom House, and Human Rights Watch, jointly urge the UN Human Rights Council to renew the mandate of its Independent International Fact-Finding Mission on Venezuela. As the country’s post-election repressions continue to escalate, the organizations argue there is an urgent need for accountability and international scrutiny. While the Mission’s report will be presented next week as part of the 57th session of the Human Rights Council, the extension of the Mission’s mandate beyond October requires a resolution. As of now, more than 20 people have been killed during protests against the declared election results in Venezuela; the authorities have detained more than 2,400 people – 120 of them are minors.
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TEACHING FREEDOM OF EXPRESSION WITHOUT FRONTIERS
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This section of the newsletter features teaching materials focused on global freedom of expression which are newly uploaded on Freedom of Expression Without Frontiers
● Freedom of Expression: Inter-American Standards and Their Transformative Impact, by Catalina Botero-Marino. Director of the UNESCO Chair on Freedom of Expression at the Universidad de Los Andes, Co-Chair of Meta’s Oversight Board, and Former Special Rapporteur on Freedom of Expression of the IACHR, Catalina Botero-Marino contributed this chapter to the volume on The Impact of the Inter-American Human Rights System: Transformations on the Ground (New York, 2024). The chapter lays out how the current freedom of expression standards – including those on speech about the issues of public interest and prohibitions of prior and indirect censorship, among others – came to be established within the Inter-American Human Rights System. The chapter then focuses on the transformative influence that two particular standards have had on domestic legal systems: “the standard regarding the limits of criminal law and the standard regarding the scope and nature of the right to access public information.”
● Regulatory Mapping on Artificial Intelligence in Latin America: Regional AI Public Policy Report, by Franco Giandana Gigena. This report, published by Access Now and prepared by Franco Giandana Gigena, Latin America Policy Analyst, serves as a reference book for policy-makers in Latin America by systemizing examples of and recommendations on AI-tailored public policy. The report underlines the best practices that can pave the way to human-rights-based regulatory approaches without forestalling innovation; in addition of the fundamental rights focus, Access Now singles out four more minimum standards for regulating AI: transparency, effective monitoring mechanisms (studies of impact on fundamental rights specifically), enforcement and applicable sanctions, and consideration of local contexts.
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OSINT and Artificial Intelligence: A Regional Perspective on an Explosive Combination, by Nicholas Zara. In this article, originally published in Political Animal in Spanish, Nicholas Zara, Researcher at the Center for Studies on Freedom of Expression and Access to Information (CELE), responds to the recently passed resolution that set up the AI Unit Applied to Security in Argentina. The Unit’s function is to use AI technologies in detecting and prosecuting crime; this development adds to the so-called “cyber patrolling,” reintroduced by an earlier-passed resolution, which allowed criminal investigators to use OSINT for surveillance. On behalf of CELE, Zara warns of drastic consequences for privacy and, potentially, freedom of expression in Argentina and other countries in the region that implement similar practices.
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