Laws that permit journalists to be prosecuted criminally for the content of their reporting are considered to present a hazard to freedom of the press and to the right of citizens to be informed. As the Inter-American Commission on Human Rights (“IACHR”) described in its 1994 Annual Report, such laws have an “inevitable chilling effect . . . on freedom of expression.”1 Indeed, there is a growing international consensus among tribunals and authorities around the world, including the IACHR, the United Nations and the European Court of Human Rights (“ECHR”), that criminal punishment is a disproportionate penalty for defamation and that only speech that creates a direct threat of lawless violence should ever give rise to criminal liability. For example, criminal defamation has been held by the ECHR to be a “disproportionate interference with the exercise of . . . freedom of expression,” as civil damages are sufficient to redress harm to reputation.2
Within the Americas, Article 13 of the American Convention on Human Rights leaves States limited authority to restrict the right to freedom of expression. In particular, a State may impose liability for defamation only “to the extent necessary to ensure . . . respect for the . . . reputations of others.”3 Under Article 13, any restriction on free expression must be “required by a compelling governmental interest” and “framed as not to limit the right protected by Article 13 more than is necessary.”4 Furthermore, the IACHR’s Special Rapporteur for Freedom of Expression has described “the paralyzing effect or the possibility of self-censorship caused by the mere existence of laws that provide criminal penalties for those who exercise the right to freedom of expression in such a context.”5
This report endeavors to present a survey of the status of criminal defamation laws and other laws criminalizing or restricting speech across the Americas. Defamation may be defined generally as the act of harming the reputation of another by making a false statement to a third person, although its specific definition and application varies under the laws of each country and, in the United States, under the laws of each state. Further laws criminalizing speech in the region include, for example, libel (defined generally as a defamatory statement expressed in a fixed medium, including pictures, signs, or electronic broadcasts), calumny (often defined as a false allegation that another person has committed a specific crime), and, in certain countries, “desacato” offenses (often translated as “contempt,” or “insult” and defined as to include insulting or offending the honor of the state or state officials). Most countries included in this report still have laws criminalizing some or all of these offenses, even when those laws are not actively enforced. This report further describes the application of these laws to the Internet and mobile communications media, which are growing increasingly common as a method of news dissemination worldwide.
Ultimately, in spite of the speech protections consecrated in the American Convention on Human Rights and reinforced within recent cases before the IACHR, criminal prosecutions for defamation remain frequent in many countries across the Americas.6 While in some countries one can see a positive trend of governments that have taken the initiative to amend or abolish their criminal defamation laws, there is no current trend toward completely decriminalizing these laws in the Americas. Most countries included in this report currently have a number of different criminal laws that might restrict freedom of expression such as libel, slander, defamation and calumny, punishable with fines and in some instances imprisonment. Criminal defamation laws are enforced and have resulted in imprisonment in Argentina, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Grenada, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, the United States, Uruguay, and Venezuela. Currently, the only country with no criminal defamation laws is Jamaica, which recently reformed its criminal laws to this effect; both Mexico and the United States have no criminal defamation laws at the federal level only. Criminal defamation laws in most of the countries in the Americas also apply, at least on the face of the law, to internet and mobile communications.
Until criminal defamation laws are eradicated, they may be employed to intimidate journalists. While some countries within the Americas have yet a long way to go towards eliminating their laws criminalizing defamation and other speech, such as Honduras, Cuba, Brazil, Ecuador, Peru and Venezuela, a number of countries have made strides in this area recently. Jamaica, Mexico, the U.S., El Salvador, Guatemala, Honduras, Nicaragua, Panama, St. Lucia and Argentina, for instance, should be commended for undertaking improvements, especially through the repeal and amendment of key provisions within their penal codes that restricted the freedom of speech.
1. North America
In North America, only Canada still has criminal laws restricting the freedom of expression on a federal level. While Mexico and the U.S. have no federal defamation laws, certain states within these two countries still criminalize defamation. However, the enforcement of criminal defamation laws is rare in Canada and in certain U.S. states. In Mexico, records of judicial proceedings are not publicly available. Therefore, it is not possible to ascertain the extent to which local defamation laws are being enforced. But the availability of very limited public news about criminal charges against reporters suggests that there are not many cases brought against journalists in Mexico under these local defamation laws. The language in the criminal defamation laws of all three North American countries imply a broad application to Internet and mobile communications. Overall, there is a positive trend toward the abolition of criminal defamation laws, particularly in the U.S. and in Mexico, where such laws have been repealed in some local states.
2. Central America
All seven Central American countries currently have a variety of different criminal laws restricting freedom of expression such as libel, defamation and calumny, that either impose fines or imprisonment. Criminal defamation laws have been applied in recent years in five Central American countries (Costa Rica, Guatemala, Honduras, Nicaragua and Panama) and lawsuits are often brought against journalists in those countries. In the other two Central American countries (Belize and El Salvador), criminal prosecution of journalists has been rare in recent years. In six out of the seven Central American countries, the criminal defamation laws apply to Internet and mobile communications. Only in Panama is there no provision expressly extending criminal defamation laws to the Internet and mobile communications. While six Central American countries (Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama) have either amended or abolished certain criminal defamation laws, there is no current trend toward further decriminalizing these laws in Central America.
3. The Caribbean
All Caribbean countries except Jamaica currently have a variety of different criminal laws restricting the freedom of expression. However, criminal defamation laws have been very rarely enforced in most of these countries (Antigua and Barbuda, Bahamas, Barbados, Dominica, Jamaica, St. Lucia and Trinidad and Tobago). In Cuba, Dominican Republic and Haiti, defamation laws continue to be enforced. In nine Caribbean countries (Barbados, Cuba, Bahamas, Dominica, Dominican Republic, Grenada, St. Lucia, Haiti and Trinidad and Tobago), the criminal defamation laws apply to the Internet and mobile communications in all countries except Antigua and Barbuda, Cuba and Jamaica. Other than Jamaica, which recently decriminalized defamation, and St. Lucia, there is no current trend toward decriminalizing criminal defamation laws in the Caribbean.
4. South America
All thirteen South American countries currently have a variety of different criminal laws that might be used to restrict freedom of speech, including libel, slander, defamation and calumny, which impose either fines or imprisonment. Criminal defamation laws have been enforced in most of these countries and lawsuits have been brought against journalists. In French Guiana and Guyana, criminal prosecution of journalists has been rare in recent years. In all thirteen South American countries, the criminal defamation laws appear to apply to the Internet and mobile communications. While seven South American countries (Argentina, Bolivia, Paraguay, Peru, Brazil, Uruguay and Guyana) show progress toward amending or abolishing certain criminal defamation laws, there is no trend toward decriminalizing these laws in other South American countries.
1 Inter-Am. C.H.R., Annual Report 1994, Ch. V: Report on the Compatibility of “Desacato” Laws With the American Convention on Human Rights (Feb. 17, 1995) (“Desacato Report”).
2 Dalban v. Romania, 31 Eur. Ct. H.R. 39 (2001).
3 American Convention on Human Rights, Nov. 22, 1969, art. 13(2)(a) (emphasis added).
4 See Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Inter-Am. Ct. H.R., Advisory Opinion OC-5/85, para. 46 (decided Nov. 13, 1985). The European Convention employs a similar test: any restriction on expression must be proportionate to a legitimate aim of the State. See, e.g., Roemen et al. v. Luxembourg, — Eur. Ct. H.R. –, paras. 48, 51 (decided Feb. 25, 2003) (finding that interfering with free expression is not justified other than in response to “a pressing social need, . . . proportionate to the legitimate aim pursued” where the State provides “rel evant and sufficient” reasons for the interference); Öztürk v. Turkey, — Eur. Ct. H.R. –, paras. 64(iii), 71 (decided Sept. 28, 1999) (holding that criminal proceedings violated Article 10, as it was not established that “there was a ‘pressing social need’ capable of justifying a finding that the interference in question was ‘proportionate to the legitimate aim pursued'”).
5 Inter-Am. Comm’n H. R., Report of the Special Rapporteur for Freedom of Expression, ch. V, sec. C, para. 22, OEA/Ser.L/V/II.88 (2002); see also Theophanus v. Herald & Weekly Times Ltd., 182 C.L.R. 104, 130-31 (1994) (describing “chilling effect” caused by civil and criminal defamation laws).
6 See Jairo E. Lanao, Symposium on the Role of a Free Press and Freedom of Expression in the Development and Consolidation of Democracies in Latin America: Legal Challenges to Freedom of the Press in the Americas, 56 U. Miami L. Rev. 347, 361 (2002) (criminal defamation prosecutions are common in Chile, Brazil, Panama and Paraguay); CPJ, Attacks on the Press in 2002 (2003), at 90 (almost half of Panamanian journalists face criminal defamation charges).