After three decades of democratization, the current state of freedom of expression in Latin America is undoubtedly more open than in the period of military rule. But the legislative and judicial reforms necessary to institutionalize freedom of expression are still widely lacking.
In this new report—prepared by Debevoise & Plimpton LLP for the Committee to Protect Journalists (CPJ) in collaboration with the Thomson Reuters Foundation—we found that 32 of 33 countries in the Americas penalize defamation with criminal laws that are often invoked to punish critical journalists and create a chilling effect for the press.
CPJ has closely followed the state of criminal defamation laws in the region for over a decade. In 2000, we began an intense campaign to eliminate these laws in the Americas. These efforts were widely successful and helped shape an emerging international consensus, including within the Inter-American system, that criminal defamation violates international freedom of expression standards and led to the decriminalization of many aspects of defamation in several countries.
In the last few years, however, we have documented a troubling resurgence of the use of these outdated provisions to target critical journalists. It has become clear that, even if infrequently applied, the continuing existence of these laws represents a lurking danger to free expression. Though we knew the problem was widespread, a comprehensive analysis of the situation was lacking. With that in mind, we partnered with the Thomson Reuters Foundation to utilize the legal expertise of their pro bono network to document the extent and nature of criminal defamation in the region.
Despite the emerging consensus that criminal defamation laws violate international freedom of expression standards, the continued use of such provisions has deterred the aggressive reporting necessary for robust debate in a free and open society. CPJ research has found that politicians and public officials are the actors who most often target and seek to silence their critics with these laws. International jurisprudence has found that public officials, because of their role, should be subjected to a greater public scrutiny from society.
International human rights instruments and a growing body of international legal opinion clearly state that defamation laws can have a chilling effect on speech, hampering the right to freedom of expression and the right to be informed. Laws that criminalize speech that do not incite violence are incompatible with the right to freedom of expression as established under Article 13 of the American Convention on Human Rights. As the Inter-American Commission on Human Rights stated in a landmark 1994 decision, “Considering the consequences of criminal sanctions and the inevitable chilling effect they have on freedom of expression, criminalization of speech can only apply in those exceptional circumstances when there is an obvious and direct threat of lawless violence.”
Yet 21 years later, Jamaica is the only country in the hemisphere that has entirely repealed criminal defamations provisions, according to the findings of this report.
This report, which is aimed as a resource to inform journalists of the legal risks for their work, shows that the use of criminal defamation provisions is still widespread throughout the hemisphere. Though imprisonment is rare, the fact that these laws are frequently used as a way to intimidate journalists and to limit the debate on issues of national interest is a matter of concern. CPJ will continue to actively campaign for the elimination of criminal defamation laws that seek to equate critics with criminals.
Carlos Lauría, Americas Senior Program Coordinator, and Sara Rafsky, Americas Program Research Associate
COMMITTEE TO PROTECT JOURNALISTS