Inter-American Human Rights System, campaigns against defamation laws keep journalists from jail in Americas

When a prison guard told Ángel Santiesteban Prats that he would be released from jail on a scorching summer day in July, the Cuban independent writer and blogger decided to ignore him, brushing off the news as a cruel joke. By then, Santiesteban had already spent two years and five months in prison, half of his five-year sentence, on trumped-up charges of domestic abuse. But Santiesteban, who had been jailed in reprisal for the critical blog Los Hijos que Nadie Quiso (The Children Nobody Wanted), was unexpectedly paroled a few hours later.

Cuba, which had been in the early 2000s one of the world’s leading jailers of journalists, has abandoned its policy of lengthy incarcerations of independent journalists and bloggers, according to CPJ research. And this is one of key reasons why, for the second time since CPJ began compiling annual prison surveys in 1990, not a single journalist in the Americas was in jail for work-related reasons on December 1.

The Americas stand in stark contrast to much of the rest of the world, where nearly 200 hundred journalists are imprisoned, as CPJ’s most recent census shows. In addition to the change in Cuban policy, clear principles for freedom of expression adopted by the Inter-American human rights system and sustained campaigns to eliminate defamation laws by international press freedom groups have contributed to a significant decline in the number of journalists jailed in the Americas, according to CPJ research and experts.

But CPJ’s annual census is a snapshot in time. The fact that there were no journalists in jail in the Americas at midnight on December 1 does not mean that there have not been incarcerations throughout the year. In Mexico, for instance, Pedro Canché–a Mayan journalist and activist who was arrested in 2014 after being charged with sabotage, and who appeared on last year’s census–was only released in May after 272 days in prison. And in Brazil, a blogger was jailed for four months this year after police discovered he had never served time for a five-month sentence he received in October 2014.

As international standards on freedom of expression have taken hold, the cost to governments of imprisoning journalists has elevated. In 2000, the Inter-American Commission on Human Rights (IACHR) adopted the Declaration of Principles on Freedom of Expression, which asserts that criminal defamation laws–long applied throughout Latin America to inhibit critical reporting–violate freedom of expression guarantees.

Thanks to the efforts of the IACHR’s special rapporteur for freedom of expression, laws criminalizing desacato, or disrespect, have been repealed in Paraguay, Costa Rica, Peru, Chile, Honduras, Panama, Nicaragua, Uruguay, and Bolivia. While Jamaica is the only country in the hemisphere that has entirely repealed criminal defamations provisions, Mexico has decriminalized defamation laws at the federal level, and Argentina eliminated libel and slander on matters of public interest.

“Ending the use of laws that criminalize expression in the public interest or about public officials has been a priority,” said IACHR Special Rapporteur Edison Lanza in a telephone interview with CPJ. “And our efforts to eradicate these laws have helped to prevent journalists from being jailed for their work.”

Lanza cited the use of IACHR’s “precautionary measures“–recommendations that call on member states to take immediate, corrective action in cases of grave human rights abuses–as a tool for aiding journalists who face imminent risk of jail for their work. At the request of a reporter or a media outlet, the IACHR can request that a state grant precautionary measures “to prevent irreparable harm.”

In one high-profile case, in 2012, precautionary measures on behalf of the three directors and opinion editor of the leading Ecuadoran daily El Universo prevented their imprisonment after they were sentenced to three years in jail for allegedly defaming President Rafael Correa. “The Commission has adopted precautionary measures every time a journalist has been at risk of incarceration, and states have generally reacted positively,” Lanza said.

International and regional human rights groups have also successfully highlighted the risks that restrictive laws pose to investigative and critical journalism. Supporting the efforts of IACHR’s rapporteur, groups including CPJ have campaigned against criminal defamation laws. Convictions now are uncommon and even when they occur, journalists often receive suspended sentences or otherwise avoid jail time.

Still, the persistence of these laws represents a danger to free expression. “The fact that most countries in the Americas still have criminal defamation laws in effect is greatly detrimental to freedom of speech, and an ongoing threat to democracy,” said Thomas Norgaard, a Venezuelan and U.S.-trained lawyer with Debevoise & Plimpton who focuses on international law. (CPJ is a pro bono client of Debevoise & Plimpton and worked with Norgaard on an amicus brief before the IACHR in a Venezuela licensing case.)

In Peru, for example, local politicians have labeled journalists as terrorists and filed a slew of defamation charges against investigative reporters. The harassment led to the closure of at least one independent daily.

And journalists face other types of censorship and harassment. In Brazil, politicians, business people, and celebrities have used laws intended to guarantee the privacy of average citizens to silence the media, a practice known as judicial censorship. Ecuador, under Correa’s government, has one of the worst press freedom records in the region, with journalists and newspapers subject to legal measures, defamation suits, and public insults, according to CPJ research.

“Because freedom of press is fundamental to democracy, the imprisonment of journalists is generally frowned upon. However, the fact that there are no journalists in jail in the Americas cannot be viewed in isolation. The imprisonment of journalists is just one of many ways in which a government can censor the press,” Norgaard said.