This report explains the general standards on freedom of expression supported by jurisprudence and doctrines binding in the Inter-American system while discussing their most pressing problems. It also lays an emphasis in showcasing best practices in the region and sets guidelines to help states shape their internal laws to Inter-American benchmarks.
The Special Rapporteur highlights the triple function that freedom of speech has been given in the Inter-American system as: (i) the right to think by ourselves and share our thoughts with others, (ii) the enabling right for a healthy democracy, and, (iii) a key instrument for the exercise of other fundamental rights (Paragraphs 6-10). When mentioning the scope of this right, the Report mentions that the right of an individual to express its own thoughts should be equally protected as the collective right of the society to receive that information. Therefore, a violation to the former cannot be justified using the latter or vice versa (Paragraphs 13-17).
As detailed by the Report, the range of activities covered by this right include the right to speak, write, disseminate, and produce artistic and symbolic expression. Also included is the right to seek, receive and have access to expressions, access to information about oneself and to possess information in any form (Paragraphs 19-29). In particular, the speech deemed in need of special protection is (i) political speech and speech involving matters of public interest, (ii) speech regarding public officials in the exercise of their duties and candidates for public office, and, (iii) speech that expresses essential elements of personal identity or dignity (Paragraphs 32-56).
The report also explains in detail the three-part test that must be observed to establish if a certain restriction on the exercise of freedom of speech is acceptable under the ACHR. This standard requires that the restriction should be clearly and precisely provided for by law (Paragraph 69); that it should be designed to achieve one of the vital objectives recognized in the Convention (Paragraph 74); and that it should be necessary in a democratic society to serve the compelling objectives pursued, strictly proportionate to the objective pursued, and appropriate to serve such compelling objective (Paragraphs 84-86). In any event, those limitations shouldn’t be applied through prior censorship and can only be prosecuted after the dissemination of the information through the subsequent and proportional imposition of liability (Paragraph 91), cannot be discriminatory nor have discriminatory effects (Paragraph 93), and shouldn’t be imposed by indirect means like the abuse of government controls or means tending to impede the communication and circulation of ideas and opinions (Paragraph 96).
It is particularly mentioned by the Report as a way of prior censorship proscribed by the Convention the order to include or remove specific links, or the imposition of specific content in Internet publications (Paragraph 148).
The summary of this document is part of the report produced on the Stanford Law School Intermediary Liability and Human Rights Policy Practicum and is based on the work of Miguel Morachimo. The full report “The 'Right to Be Forgotten' and Blocking Orders under the American Convention: Emerging Issues in Intermediary Liability and Human Rights”, can be accessed here.