Freedom of Expression and Transition to Democracy
Since the 1980s, the term “transition to democracy” has been used to describe those processes of political change that aim to leave behind a dictatorial past, a situation of internal armed conflict or another type of radical breakdown of the political order or absence of the rule of law, and to advance toward the foundation or reconstruction of a democratic system. Chile has generally been cited as one of the cases of transition to democracy most worthy of study.
In Chile, various public figures hold diverging points of view — though their differences are sometimes based only on semantics — as to how advanced is the country’s transition to democracy or at what moment it should be considered to have ended. However, a substantial majority, including many who consider the transition to be fully realized, believe that Chilean democracy can and should be deepened, although they may differ as to the extent and necessity of the changes that should be introduced.
Seen from an international perspective, it is clear that Chile is governed by democracy under the rule of law; however, some aspects of its laws, institutions and practices fall short of international norms and standards it is bound by the ratification of various international treaties to respect.
One of the areas in which this deficiency is most critically evident is of real respect for, and effective protection of, freedom of expression. In fact, this report concludes that freedom of expression in Chile is subject to restrictions perhaps unparalleled among Western democracies.
The gravity of this situation cannot be underestimated. As indicated in this introduction, freedom of expression and information is the cornerstone of public freedoms and of the democratic system. For that reason, advocacy of its full respect and promotion in Chile — which is the purpose of this report —has both a substantive and instrumental aspect. Substantive, because it is internationally accepted that full democracy cannot be understood without the corresponding full enjoyment of freedom of expression, in all its facets. Instrumental, because increasing the protection of this freedom encourages public debate on the improvement of Chilean democracy as a whole.
This report concludes that an authoritarian tendency has prevailed in Chilean laws, political culture and judicial tradition, affecting the balance between freedom of expression and the restrictions to which it is subject. This tendency has historical roots that long pre-date the military government of the period 1973-1990, although the legacy of that regime contributed to exacerbating them. The report also demonstrates that the Chilean courts have not duly taken into accountinternational human rights norms that have been incorporated, and given over-arching importance in domestic legislation, as a result of Chile’s ratification of the respective international conventions.
For these reasons, it is worth reviewing the development of the international consensus that currently exists regarding freedom of expression, as well as its particular relevance for the democratic system.
Freedom of Expression and Its Link
With Ideas of Democracy and Human Rights
In modern times, freedom of expression has undergone two historical periods of intense conceptual development and ethical valuation. The first goes back more than two centuries, associated with the dawn of modern democratic thought and with the revolutions that sought to install it in Europe and the Americas. The second period began a century and a half later and is linked to the emergence of a system of international protection of human rights.
In recent years, after the end of the Cold War and the processes of transition to democracy, there has been renewed interest in freedom of expression, both by the legacy of libertarian thought and by human rights norms and concepts. It is worthwhile to briefly review this dual historical legacy, which serves as a framework for current activism in favor of freedom of expression.
Although there are more ancient precedents, freedom of expression as it is known today has its roots in the period of the Enlightenment. The ideas of philosophers and political thinkers that inspired the liberal revolutions of the eighteenth century is reflected in the principal manifestos of those revolutions, among them the Declaration of Independence and Constitution of the United States, and the French National Constituent Assembly’s Declaration of the Rights of Man and the Citizen.
The basic concepts of liberal thought may be summarized as follows: human beings are born free and are equal in dignity and rights; among the fundamental and inalienable rights of the individual are those concerning life, security and liberty; sovereignty rests essentially with the nation and the purpose of political organization is, fundamentally, to guarantee the rights and liberties of persons; as such, the legitimacy of government derives from the consent of the governed and from no other foundation, such as the divine origin of power, the dynastic rights of royalty of the recognition of de facto powers.
Liberal thinking, later enriched by other strains of thought, affirmed its confidence in the creative force of individual liberty and the free association and competition between ideas and opinions. For the same reason, it proclaimed thespecial importance of freedom of expression, in particular in relation to the communication of information and opinions by all media, including the press.1
Freedom of expression was considered to be the cornerstone of a system of freedoms that included freedom of conscience, that is, the right to hold opinions or religious or other beliefs, as well as the right to assembly, demonstration and petition.2
Propositions formulated during this period are today widely accepted as essential to the notion of democracy. These include the idea that neither political and religious authorities nor judges are competent to determine the goodness or validity of ideas or opinions, which must compete freely; also, that the protection of free expression is meaningless if it does not also extend to ideas or opinions that are generally abhorred.
At the same time, while recognizing the need for a politically organized society, whose institutions must necessarily rely on a public force capable of maintaining order and enforcing the law, liberal thought harbored a fundamental distrust of the state. For this reason, freedom of expression was conceived not only in its creative dimension but also in its preventive role as an indispensable instrument for keeping the powers of the state under the critical control of its citizens.3
It is difficult to summarize the complex history that runs from the first liberal revolutions until the period after the Second World War, when the international community proclaimed a set of fundamental rights and later supported their promotion and defense beyond national borders. However, it is interesting to highlight briefly a few landmarks, in order better to understand the present phase of activism in favor of freedom of expression and other fundamental rights.
In the two centuries that have elapsed between the liberal revolutions and our time, the recognition or negation of the fundamental rights of persons was intimately linked to the doctrinal propositions and ideological and political positions that mark that historical period.
The original ideas of liberal democracy inspired the independence process in the Americas, even though in most countries democracy took a long time to become more or less firmly rooted. Meanwhile, in Europe, following the absolutist restoration, the liberal democratic ideal was reaffirmed after the revolutions of 1848. In the second half of the nineteenth century, other parallel ideologies emerged, of socialist, social-religious or nationalist orientation, inspiring the creation of powerful political organizations that provided a framework for the expression of acute social demands and conflicts. In the midst of these processes, in the more advanced countries, protection of public freedoms was laboriously and gradually extended to other social sectors and races, apart from those dominant in society, and, later, to both sexes.
The twentieth century has been called the “short century” (if one considers it as having begun with the First World War and ended together with the Cold War). It has also justifiably been described as an age of extremes,4 due to the exacerbation of the struggle between political ideologies that characterizes it and that was already insinuated at the end of the nineteenth century. In effect, after the end of World War I, the ideologies of liberal capitalism, communism and fascism emerged as clearly opposed political positions each aspiring to international hegemony. The first of these continues to hold power, and the other two managed to conquer it, for periods, in nations of major geopolitical importance. World War II culminated with the defeat of the fascist alternative, and the anti-fascist allies subsequently turned into the principal contenders during the following period, the Cold War, which reached its conclusion at the end of the 1980s.
The unheard-of extremes of inhumanity reached during World War II shook the international conscience and were determining factors in the introductionof humanitarian components in the construction of the new world order. In effect, looking back over the past fifty years, it is clear that in the post-war period, in addition to the emerging world order in the political, economic and military fields, the bases of an international humanitarian order were established, incipient at first but gaining increasing importance through to the present day.
The international humanitarian order of the post-war period rests on three fundamental pillars: the systems of human rights, international humanitarian law, and refugee law. The first imposes international obligations on states for the protection of the fundamental rights of the person. The second seeks to regulate the conduct of the parties to an international or internal armed conflict, as well as to protect the victims of that conflict. The third seeks to protect persons who, finding themselves outside their country of nationality, are unable to avail themselves of the protection of that country due to well-founded fears of suffering arbitrary persecution.5
Of particular interest is the development of the international human rights system, which serves as a framework for freedom of expression and other related rights. Since it emerged in the post-war years, the international human rights system has passed through three distinct phases, outlined below.
During the first phase, which extends well into the 1960s, the initiative was fundamentally in the hands of governments, which acted via international organizations such as the United Nations, the Council of Europe or the Organization of American States. During this period the principal international and regional declarations and conventions on human rights were adopted, and protection bodies within the United Nations system and the European and American regional systems were established or agreed to be established.
In a second phase, which extended from the 1960s through the end of the Cold War, the human rights activity of the United Nations and regional inter-governmental bodies continued. However, the dominating feature of this period is the emergence of an international human rights movement, nongovernmental in nature, which later expanded to various countries throughout the world. This movement, led internationally by organizations such as Amnesty International, the International Commission of Jurists and Human Rights Watch, scrupulouslydocumented and denounced human rights violations, disseminated information and conducted campaigns in order to promote these values and defend the victims of violations. In this way, they attracted the attention of the press and international public opinion, as well as of many governments, and contributed to elevating human rights to the position as an internationally accepted fundamental value of political ethics that it occupies today.
The human rights movement based its actions on internationally recognized human rights norms. However, that apparent consensus could not hide the fundamental ideological differences between the protagonists of the Cold War. These differences extended to the very meaning of democracy and to the level of protection provided for political freedoms, including freedom of expression. In the climate of Cold War ideological polarization, it was difficult for human rights organizations to assume an apolitical position, necessary for the effectiveness of its work, if it chose to question the bases of the competing political systems. For this reason, with few exceptions, human rights organizations tended to concentrate on violations of undisputed norms, such as those protecting life, physical integrity and personal liberty in the face of arbitrary detention.
Nonetheless, several groups in the United States and Europe did work, in this period, to defend the freedom to found newspapers as well as for an end to censorship.6 At bottom, freedom of conscience and freedom of expression never ceased to be the center of international human rights activism. In effect, the vast majority of the gravest human rights violations (apart from massacres committed during military operations in internal armed conflicts) have been perpetrated as a means of physically eliminating, punishing or restricting the possibility of action of political or religious dissidents, which means that they suffered due to theirbeliefs, opinions or ideas. The concept of prisoner of opinion or prisoner of conscience itself, so linked to human rights campaigns, summarizes that situation.7
Many factors help to explain the political changes that have taken place internationally since the 1980s, but it is widely accepted that the sustained international campaign for human rights and the pre-eminent that the human rights issue has gained in international forums, contributed to those changes and to the revaluation of the democracy and pluralism they brought with them.
With the end of the Cold War, however, the system of human rights law and the international movement acting within its margins entered a third phase, marked by new issues and challenges. It is true that grave human rights violations continue to demand the attention of the international community. In various current situations, involving the breakdown in the organization of the state and religious or ethnic struggles, humanitarian protection still requires a major effort. However, increasingly, a principal problem of political ethics consists of overcoming a legacy of human rights violations from the recent past, and of constructing a fully democratic system that offers the greatest possible guarantee of human rights promotion and respect.
This has been the situation of Chile, after its return to democracy in 1990, and it is within this scenario that it is so important to examine the degree of respect for freedom of expression in the country.
During this third phase of the international human rights movement, action for the promotion and defense of freedom of expression in all its facets has expanded notably. There are various manifestations of this process: new intergovernmental mechanisms have been established to protect freedom of expression.8 Also, nongovernmental organizations specifically focused on freedom of expression have emerged or expanded. At the same time, nongovernmental human rights organizations of a more general nature, which in earlier periods had concentrated on protection of the rights to life, physical integrity and freedom ofpersons, began to promote a wider range of rights and the establishment of legal and institutional systems to protect them. Using this approach, they were also interested in the processes of democratization and in the different aspects of freedom of expression. Simultaneously, in this phase the European Commission of Human Rights (hereafter the European Commission) and the European Court of Human Rights (hereafter the European Court) continued to examine situations and cases relating to freedom of expression, while the Inter-American Commission on Human Rights (hereafter the Inter-American Commission) and the Inter-American Court of Human Rights (hereafter the Inter-American Court) gradually began to receive a number of complaints and requests for consultative opinions on the same theme.
The above historical overview shows how an increasing international consensus on freedom of expression has come into being: from its philosophical-political proclamation, at the dawn of the modern era, passing through its development in the legislation and practice of the most advanced countries, eventually becoming part of an ever more complex and sophisticated international system for the protection of human rights.
Having reached this last stage, the international norms on freedom of expression return to enrich national legislation, through the incorporation of international law into domestic law. This is the case of Chile, which has ratified the principal international human rights instruments and has amended its constitution to reinforce the legal hierarchy of those rights.9
In sum, the universal ethical ascendancy of human rights, the validity of its norms in Chile’s domestic law, as well as the fact that the international systems of human rights protection are the most fertile forum for the elaboration of jurisprudence and doctrine in this area, confirm that the framework of human rights is the most appropriate for the examination of freedom of expression in Chile.
The Human Rights Normative System
Within Which Freedom of Expression Falls
None of the fundamental freedoms, including freedom of expression, is absolute. Of all the fundamental freedoms, that of expression is the most elaborated in international norms and jurisprudence.
In order to understand the content of freedom of expression, and the restrictions or limitations that may legitimately affect it, we must look first at the logic implicit in the general treaties on civil and political rights, taking as a basis the American Convention on Human Rights or Pact of San José, Costa Rica, of 1969 (hereafter the American Convention) and the International Covenant on Civil and Political Rights of 1966 (hereafter the International Covenant), both ratified by Chile. It is also interesting to refer to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereafter the European Convention), because of the wealth of cases considered by the respective commission and court, and because the Inter-American Court has taken into account the jurisprudence elaborated by the European Court.
In examining the internal logic of human rights norms, it is clear that they seek to protect different values or interests. In the tradition of continental European and Ibero-American law, these are known as “juridical values” (bienes jurídicos). The degree of protection that the law provides for a given juridical value (for example, by establishing severe sanctions in the case of transgression), indicates the importance attributed to it. However, the majority of international human rights norms do not define the behavior that constitutes a violation, nor assign sanctions to it, but simply consecrate certain rights. In this respect, they more closely resemble the content of the norms found in national constitutions than those found in national penal codes.10
Nor can the importance that international human rights law assigns to different juridical values be inferred solely on the basis of the restrictions imposedon certain rights. That one right may be subject to no restrictions and another may be subject to several restrictions does not necessarily mean that the first has greater hierarchy than the second. The restrictions that international human rights law imposes on some rights may be based on the importance assigned to that juridical value, but it may also respond to the nature of the respective right. In fact, the exercise of certain rights inevitably places them on a potential collision course with other rights or general interests, and it is therefore necessary to regulate these possible conflicts. The same does not occur with other rights.
Juridical Values Involved in Freedom of Expression and Related Rights
Freedom of expression and the rights most closely related to it are enshrined in the international conventions on civil and political rights. Looking at these rights as a whole, we can identify four groups, in line with the juridical values they seek to protect:
· Security of the person: Within this group of rights are the right to life; personal integrity; physical liberty (in the sense of the right not to be submitted to arrest, detention or imprisonment, except in accordance with the law, including fair trial guarantees); the prohibition of slavery; the right to honor and dignity, private life, including the privacy of the home, family life and correspondence; and freedom of conscience, understood as the right to hold religious, philosophical or other beliefs or convictions (although the expression of those convictions, on the other hand, falls within the category of freedoms). The generic value common to all these rights can be characterized as the security of the person, which implies the protection of life and physical security, as well as of the more intimate sphere of identity and privacy. One is entitled to these rights as a person, rather than as an active citizen. They are enjoyed by all, even those who do not participate in any social or civic activity whatsoever.
· Freedoms: Unlike the previous group, the exercise of these rights relates to the person in social interaction. The generic value protected is the capacity to act freely (within respect for the law and the rights of others) in political, religious, social or economic spheres. They include freedom of expression, including freedom to seek and publish information, through the press or other media; freedom of assembly; freedom of association; freedom of circulation and residence; freedom to formulate petitions to the authorities and participate in political life through voting (which may at times also be an obligation) or through running for public office.
· Equality: The norms that consecrate equal protection before the law, without discrimination on the basis of race, color, sex, language, religion,political or other opinions, national or social origin, economic position, birth or any other social condition, are common to both civil and political rights and to economic, social and cultural rights. The content of the right to equality is formal rather than substantive. It seeks to ensure that neither the protection of the rights of each person nor the restrictions that may be imposed on the exercise of some of those rights is based on arbitrary discrimination.
· Right to the protection of a legal system, based on a determined status or membership: Among these are the recognition of juridical personality (status as a person) before the law, and status such as that of national of a given country, citizen, permanent resident or refugee. These distinct qualities bring with them certain special rights and obligations with respect to the respective juridical system, although all persons have equal enjoyment of fundamental rights. The generic juridical value that these seek to protect is to ensure that all persons have the protection of a determined legal-political system (in addition to that provided, in the case of refugees, by the United Nations High Commissioner for Refugees).
Article 32(2) of the American Convention refers in general terms to these limitations: “The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.” Specifically, the categories of limitations are the following:
· The rights of others: The exercise of certain rights may come into conflict or collide with the legitimate rights of others and, to that extent, should be limited.
· Compliance with the law: In particular, this relates to the repression of crime (“the security of all”). For example, judicial investigations may impose limits on the right to privacy of the home and private communications; the need to investigate and punish crimes may affect personal liberty.
· “The just demands of the general welfare”: These also imply that some rights must be subordinated to legitimate requirements relating to national security, public order, public health and public morals.
· Suspension of certain rights: Article 27 of the American Convention establishes that “1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies ofthe situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion or social origin.”11 The reason for this limitation is both “the security of all” and the “just demands of the general welfare.”
The relationship between the various restrictions just mentioned with the four groups of civil and political rights described earlier demonstrates that public freedoms are subject in principle to all the categories of limitations. On the other hand, the other groups of civil and political rights include many rights that cannot be submitted to any limitation. This should not create confusion about the importance of freedoms for the normative system of human rights. Rather, the exercise of these rights, by its very nature, implies a potentially high degree of interaction and, as such, of conflicts of rights and values.
An example well illustrates this point: among inviolable rights is the right to life, which may be affected in situations of legitimate defense. Common sense indicates that the right to life is as important or more so than the right to physical integrity. However, the prohibition of torture is an absolute norm, and the right to life is not. The reason is that in armed conflict situations or cases of illegitimate aggression, the right to life of one often comes into conflict with the same right of others. The same conflict does not occur in the case of the prohibition of torture, except in artificial theoretical examples.
The fact that freedoms are in principle subject to several restrictions does not mean that these may be applied lightly. On the contrary, as discussed below, restrictions should be interpreted restrictively, especially in the case of the right to free circulation of information, ideas and opinions. This is a point that has generally been ignored by the Chilean courts, as the body of this report illustrates.
Obligations Imposed on States by International Human Rights Norms.
Article 1 of the American Convention states: “The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and toensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination...” (emphasis added).
Article 2 indicates that: “Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.”
The obligations of states in the field of civil and political rights are:
To respect: This imposes on the state the obligation of omission, consisting of doing nothing that violates the respective right. For the state, this obligation may be called principal or direct, in the sense that, if it is complied with, the juridical value protected will not have been affected by the state.
To ensure: This is a positive obligation, requiring that rights are effectively respected in practice, both by the state and by all persons. This is an important but, conceptually, complementary obligation, as its purpose is to make the effective enjoyment of those rights and freedoms more likely. The obligation to ensure requires adoption of “legislative or other measures.” It also imposes the obligation to ensure that any person whose rights or freedoms have been violated has effective recourse, even against persons acting in an official capacity, and that the authorities comply with any decision arising from that legal remedy. This obligation is contemplated in Article 25 of the American Convention and in Article 2(3) of the International Covenant.
To promote: The obligation of the state to promote human rights is included within the term “to ensure” if this is understood in a broad sense. However, in some texts it is mentioned separately, as in Article 5(2) of the Chilean Constitution. “Promote” can be deemed to mean the adoption of educational and dissemination measures, as well as any other measure tending to foster a climate of respect and acceptance of these rights. In terms of freedom of expression and of the press, as described below, this obligation to promote may include specific content relevant to the plurality of communications media.
Freedom of Expression: Content and Restrictions
The most relevant specific norms relating to freedom of expression in Western human rights law are Article 19, taken together with Article 29(2), of the Universal Declaration of Human Rights; Articles 19 and 20 of the International Covenant; Articles 13 and 14 of the American Convention; and Article 10 of the European Convention.
Importance of the right to freedom of expression
A number of international organizations have repeatedly referred to the particular importance and hierarchy of freedom of expression as the cornerstone of the system of public freedoms and a pillar of democratic order. This assessment is a contemporary echo of similar views that go back, as noted earlier, to the time of the Enlightenment.12
However, within the Inter-American system, freedom of expression has, in the words of the Inter-American Court, the “highest value,” which even exceeds that accorded to it in other treaties. The court indicates that a comparison between Article 13 of the American Convention and the relevant provisions of the European Convention and the International Covenant “clearly demonstrates that the guarantees of freedom of expression contained in the American Convention weredesigned to be the most generous and to reduce to a minimum restrictions on free circulation of ideas.”13
Content of the right to freedom of expression
Article 13(1) of the American Convention establishes the positive content of freedom of expression: “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.”14
“Information” includes news and other data whose truthfulness is in principle subject to confirmation. “Ideas” should be understood in the broadest possible sense, including beliefs, opinions, proposals, petitions, value judgments, criticisms, or artistic expressions. Even when some of these means of expression may include elements of “information,” as a whole they are not subject to verification. Publicity or commercial propaganda is another mode of expression and has, in general, a mixed character.
The above distinction is relevant to the extent that false or incorrect information may give rise to special responsibilities or rights. Examples of this are responsibility for misleading advertising or the right to rectification or reply with respect to a press publication.
The two aspects of this right, “seek and receive,” as well as “express and impart” information and ideas, are intimately linked. However, they are separate rights. The right to seek and receive information is a right in itself, as highlighted by the special rapporteur on the promotion and protection of the right to freedom of opinion and expression (hereafter the Special Rapporteur) in his 1998 report,15 and does not necessarily imply the dissemination of the information found or received.
The Inter-American Court has declared that the “expression” and the “dissemination” of thought and of information are indivisible, “so that a restriction on dissemination represents in exactly the same measure, a limit to the right to free expression.”16
Freedom of expression not only protects explicit speech, understandable through words, but also symbolic expression, which may consist not only of the artistic expressions mentioned in Article 13(1) but also of a variety of acts or omissions, whose significance often depends on circumstances.
Freedom of expression has an individual and a collective dimension. The Inter-American Court has added that if the freedom of expression of the individual is restricted, not only is the individual’s right being violated but also the right of all to receive information and ideas. There are thus two dimensions of freedom of expression: not to be prevented from manifesting one’s own thinking, and also the collective right to receive any information and to hear the expression of another’s thought.17
Although all the thematic contents of expression and information are protected by the human rights system, international jurisprudence tends to give more latitude to some modalities of expression, such as political discourse, and to allow states greater discretion in the regulation of others, such as commercial propaganda.
The defense of offensive opinions is one of the demands of pluralism, tolerance and broad-mindedness, without which we cannot talk about democratic society. This principle, which in Western thought goes back to the time of Voltaire, has received constant confirmation in international jurisprudence.18 The Special Rapporteur has also repeated it, in his 1994 report.19
Rights Related to the Freedom to Seek and Receive Information and Ideas,
as well as to Express and Disseminate Them
In the first place, freedom of expression is intimately related to the right to freedom of conscience and religion. Article 12(1) of the American Convention declares that this right “includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private.”
In reality, Article 12(1) has merged freedom of conscience and religion with the freedom to manifest them. The first is an absolute right, while the second is subject to the general restrictions on other freedoms, as Article 12(3) itself pointsout: “Freedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.”
Seemingly, freedom of conscience and of expression form an inseparable continuum; however, history shows innumerable examples of persecution for reasons of conscience, including against people who did not manifest their religion or beliefs but whose convictions were inferred or guessed.
In any case, it is worth pointing out that the freedom to manifest religion and belief, including freedom of religion, of proselytism and other religious manifestations, has greater protection under the American Convention than freedom of expression. In effect, Article 27(2) of the convention, relating to the suspension of guarantees, includes freedom of conscience and religion among the rights that may not be suspended but does not include freedom of expression.
Freedom of expression is also related to freedom of assembly and of demonstration, to the extent that the exercise of these rights is usually a method to express ideas or criticisms, either symbolically or explicitly. The denial of the freedom of assembly and demonstration is usually aimed at preventing or prohibiting those expressions or criticisms.
In the same way, freedom of expression is linked to the rights to life, personal liberty and physical integrity. In general, political repression that reaches such extremes is a means of suffocating political opposition or dissent. Other rights also related to freedom of expression include the right to form trade unions, to participate in genuine periodic elections, and to run for public office, as well as some special rights such as the right to use one’s own language in official proceedings.20
Freedom of expression is also related to various rights with which it may come into conflict (as will be seen below).
The right to freedom of expression is also related to the right to a fair trial and to certain procedural norms that may limit access to the search for information or determine the opportunity and means in which freedom of expression may be manifested, within court rituals.
Political Debate and Other Forms of Expression or
Information on Affairs of Public Interest.
Political debate should be understood in the broad sense of circulation of information, ideas, criticism and opinions regarding affairs of general publicinterest. The notion that freedom of expression is intimately linked to the concept of democracy is applicable, par excellence, to political debate.21
Public debate may not be completely suppressed even in times of emergency. This conclusion is supported both by norms on suspension of guarantees (which establish that they must be imposed only to the extent and for the period strictly necessary to face the exigencies of the situation) and by illustrative historical examples, such as the frequently cited tolerance of political debate and criticism under the Churchill government, during World War II.
The general principle that freedom of expression may not affect the rights to privacy, honor and reputation of others, should be understood with greater latitude when criticism of public figures is involved.22 This greater latitude is extended to other authorities, such as judges.23
Freedom of expression on public and political affairs should include the right of the opposition to publish their point of view in the mass media controlled by the state. The principles involved are both freedom of expression and non-discrimination. For the same reason, space for paid political propaganda may not be arbitrarily denied.
Originally understood as the freedom to found newspapers or magazines and/or publish and circulate newspapers, magazines or pamphlets, freedom of thepress has been extended, with the development of technology, to all mass communications media.
Certain radio or television transmission frequencies are inherently limited and do not allow for the unrestricted exercise of the right to found communications media. In these cases, state regulation is justified, though not the abuse of official procedures to assign those frequencies.
Freedom of the press implies the freedom to circulate and distribute, as well as the right to determine the format in which the published material published is presented. The same freedom implies a number of other assumptions, among them that access to information should not be hampered by the authorities; this includes freedom of access to official information and the right of the public to be informed about matters that are under consideration by the courts, within certain limitations. The exercise of freedom of the press also implies the capacity of journalists to protect their sources.
These and other issues have been debated in professional press circles and decided by the jurisprudence of various countries, as well as by international courts. It is not the purpose of this introduction to dwell on them, except to stress that the tendency of jurisprudence in democratic countries is strongly in favor of freedom of the press, whenever it has to be balanced against other considerations, and therefore it justifies restrictions to this freedom only on the basis of values of great importance and in extraordinary circumstances.24
The American Convention is more explicit and detailed in its protection of freedom of the press than the International Covenant and the European Convention. This is sometimes believed to be due to the fact that later treaties (the American Convention is the most recent of the three) tend to incorporate more advanced notions; at the same time, this is more feasible where there is greater uniformity among legal systems and cultural traditions among the signatory countries, as is the case in the Americas.25
The American Convention is unique in providing, in Article 13(3), that “The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any othermeans tending to impede the communication and circulation of ideas and opinions.”
The American Convention is also unique in stating the right to rectification or reply, in Article 14(1): “Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.”
The democratic tradition of special reverence for freedom of the press has been taken up by international human rights jurisprudence.
The European Court has emphasized in numerous rulings that, not only does the press have the duty to impart information and circulate ideas, but the public also has the right to receive them.26 The court also rejected the claim that the duty of the press is to impart information, leaving its interpretation primarily to the reader.27 On the contrary, freedom of the press broadly understood gives the public one of its best means to learn the opinion and attitude of its political leaders and to form an opinion; at the same time, it allows politicians the opportunity to reflect on the concerns of public opinion. In effect, it allows the participation of all in an open political debate that is the very basis of the concept of democratic society.28
The Inter-American Court has also closely linked freedom of the press with democracy29 and has added that “journalism is the primary and principal manifestation of freedom of expression and thought.”30
Pluralism in the Communications Media
As noted in the body of this report, an effective climate of pluralism is essential for freedom of expression and of the press to fulfill the role expected of them in democratic society.
One of the obstacles to this pluralism is the monopoly or interference of the state in communications media. However, control of the communications mediaby private groups may affect freedom of the press as much as interference by the state.
In this respect, the duty to take into account the needs of a democratic society31 may be interpreted as establishing the positive obligation of the state to guarantee or promote a climate of open and plural public debate, and to correct a situation in which these characteristics are absent or distorted. This obligation may also be deduced from the international norms on freedom of expression that establish the right of the public to receive information and opinions from a variety of sources.
This obligation is being recognized internationally, although its content is not precise.
The European Commission of Human Rights has declared that the obligations related to the right to seek and receive information and opinions may be infringed “where the State fails in its duty to protect against excessive concentration of the press.”32 In the same way, in 1982 the Committee of Ministers of the Council of Europe declared that “States have the duty to prevent infractions against freedom of expression and information and should adopt policies designed to promote, to the extent possible, a variety of media and pluralism in the sources of information, thus allowing for a plurality of ideas and opinions.”33
The United Nations Human Rights Committee has stated that, with the development of modern mass communications media, effective measures are needed to prevent a control of these media that interfere with the right of all toexpress themselves freely, contrary to the guarantees contained in the International Covenant in Article 19(3).34
The Inter-American Court concluded that, just as censorship is inadmissible, it is also inadmissible that the exercise of the right to disseminate information and ideas lead to the formation of public or private monopolies over communications media.35 Consequently, the Inter-American Court considered indispensable a plurality of media, the prohibition of any monopoly over them, and the guarantee of protection of journalists’ independence. The same court also resolved that the obligatory unionization of journalists is against the norms of the convention on freedom of expression.36
Finally, in his 1994 report, the UN Special Rapporteur indicated that the state has the obligation to adopt measures in situations where the concentration of the communications media threatens the diversity of opinion or access to opinion.37
However, neither existing norms nor international jurisprudence have formulated criteria that make it clear in what circumstances an excessive concentration of the media that threatens the pluralism of communications media is being generated. Neither are there criteria as to what measures should be adopted in such circumstances. One possibility, of course, is the establishment of stricter anti-monopoly laws for this sector than the general laws that normally exist on this matter in various countries. Another possible measure is the establishment of state subsidies to favor pluralism in the media. Subsidies would be acceptable as long as they do not discriminate among publications on the basis of the opinions they express. In the same way, the state should not discriminate through the use of indirect subsidies, such as the placement of governmental publicity in different communications media.
In situations in which ownership of the press is concentrated, mechanisms may also be considered to protect the editorial independence of journalists vis-à-vis the owners. These mechanisms are usually the fruit of the development of a certainculture of journalistic independence and of labor agreements between journalists and owners.38
Does the Right to Obtain Official Information Exist?
Some countries have established laws on freedom of access to information held by state organs. These laws establish the right of anyone to obtain that information, except qualified exceptions. These usually include information that may affect national security; secrets relating to the country’s trade or foreign relations; the right to privacy; or the course of judicial proceedings. The right to free access to information generally allows the petitioner to receive this information without paying, other than the cost of reproducing it. Sometimes an independent body may be granted recourse to verify the legitimacy of a refusal to provide the information, or may pronounce on unjustified delays.39
Can an international obligation relating to access to public information be established on the basis of international human rights norms? These norms speakonly of the right to right to seek and receive information; they do not refer specifically to the right to accede to official information.
However, this right may be inferred on the basis of the doctrine that some rights that are not articulated as such are immanent and implicit in the guarantees the law does enumerate.40
The UN Special Rapporteur stated in his 1994 report that access to information is basic in the democratic way of life;41 and in his 1998 report he added that the right to access to information held by the government should be the rule rather than the exception and observed that there is a tendency to classify more information than necessary.42
Treaties and international jurisprudence consider that freedom of expression and of the press play an essential role in the democratic process, given that the conclusion that free access to state information must exist is inevitable, except in the case of information justifiably classified for reasons of superior interest.
Restrictions on Freedom of Expression
The American Convention establishes in its Article 13(2) that: “The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a) respect for the rights or reputations of others; or b) the protection of national security, public order, or public health or morals.”
The basis for restrictions is similar to those of other international instruments, but the American Convention is unique with respect to the prohibition of prior censorship. The convention does permit, in its Article 13(4), prior censorship to which public entertainments may be subject by law, “for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”
The restrictions must be established by law; they must pursue one of the objectives mentioned in Article 13(2) of the American Convention; they must be necessary for the achievement of those objectives; and they must be in proportionto the end sought, that is, they must not go beyond what is strictly necessary to protect the rights of others or the interest of the public involved.
This requirement of necessity is qualified in the conventions, as we have seen, by the reference to a democratic society.43 “Necessary” has been understood to mean that it does not have to be indispensable but that the restriction should respond to a pressing social need. It should be possible to demonstrate that the end of protecting public interest or the rights of others cannot be achieved by less restrictive means than those used. The principle of interpretation that a presumption in favor of freedom of expression should prevail, is widely accepted; therefore, restrictions should themselves be interpreted restrictively44 and in line with the demands of a democratic society.
The restrictions may be previous, as in the case of censorship, or take the form of precautionary judicial measures, which consist of seizure of material through which the opinion, information or idea is expressed, in order to impede or delay its circulation. Or the restrictions may serve only as a basis to establish subsequent responsibilities. Within the inter-American system, as noted, prior restrictions are unacceptable, notwithstanding the fact that freedom of expression and the prohibition of censorship may be suspended in times of emergency, in line with the provisions of Article 27 of the same convention.
Apart from the references to restrictions on freedoms that have been made throughout this Introduction, it is worth highlighting the following points, which may be relevant in the Chilean context:
“The rights of others”
Freedom of expression may in particular affect the rights to reputation, to property (particularly in the sense of copyrights), to one's own image and to privacy. The jurisprudence of the European Court has established: that politicians must tolerate a higher degree of criticism than private citizens; that this latitude is even greater in the case of government authorities; that people occupying elected posts, especially members of the opposition, deserve special protection when they formulate criticisms on political issues; that criticism of the institutions should also be more widely tolerated than that directed at given individuals; that public personalities in general, not only politicians, should accept a greater degree of invasion of their privacy; and that, in the balance between freedom of expression and the right to privacy, greater weight must be given to freedom of expressionwhere public interest is involved, and not just private ones, such as commercial interests.45
Public order and the laws on contempt for authorities
Incitement to commit illegal acts is usually a conduct punishable under the general rules of penal law. However, under international standards, the laws of some countries that consider some criticisms of public institutions to be crimes are not permitted (even where a highly negative evaluation or a call for political change is formulated), if the expression does not have the immediate and direct nature of incitement to commit a crime.
The laws of some countries establish higher penalties if the honor of an acting public functionary is offended than if that of a private citizen is involved. These laws are equally unacceptable, under the norms of the American Convention and other instruments, as the international jurisprudence summarized in this Introduction shows. On the one hand, tolerance of criticism by public functionaries should be greater, not less, than that which private individuals must withstand. On the other hand, public order is not affected because a law says so but rather because circumstances exist that effectively attack or threaten it.
Allowing national laws automatically to equate some conducts and certain values, such as public order, without substantive reasons justifying the claim that value has been affected, utterly disregards the requirements demanded by international norms for the limitation of freedom of expression.
The Inter-American Commission has concluded that “the laws on contempt for authorities are incompatible with Article 13 of the American Convention on Human Rights, because they suppress the freedom of expression necessary for the due functioning of a democratic society.”46
National security
The European Court has granted wide discretion to governments to determine whether national security is affected, but the interest invoked must be a threat to the territorial or national integrity of the state and not only against the government.
Governments may also impose the obligation of secrecy on military personnel or other public functionaries who as a result of their functions have access to confidential information that could affect national security. However, these restrictions must comply with the general requirements of all restrictions on freedom of expression, including those of “necessity in a democratic society” and proportionality.
“The Johannesburg Principles on National Security, Freedom of Expression and Access to Information,” approved on October 1, 1995, were drafted on this issue after a meeting in that city convened by international organizations interested in freedom of expression. The Special Rapporteur added these principles as an annex to his 1996 report.47
Hate speech
In its Article 13(5), the American Convention adds a restriction known as “hate speech”: “Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” The International Covenant includes a similar norm in its Article 20.
The bases for this restriction can be found in public morals, public order or the rights of others. The respective norms establish the obligation to prohibit hate speech but not necessarily to classify these acts as crimes, although in practice it is highly likely that “incitements to lawless violence” or similar illegal actions would be punished as crimes in domestic law.48
Public morals and the concept of blasphemy
Standards of public morals differ for different communities and also vary over time. On the grounds of public morals, countries usually prohibit or restrict expressions that are considered pornographic or obscene under their laws and jurisprudence. They also often prohibit or restrict artistic or other expressions that contain extreme violence.
A point of interest relates to blasphemy. There is no generally accepted definition of blasphemy. A common element is the insulting of sacred figures, symbols, or the content of a religion. However, criticism or denial of religions is, of course, a part of permissible debate.
Even if a country were to prohibit insults to a religion, it must not base such a prohibition solely on the point of view of its followers or faithful. It must further be examined whether the expression in question has elements of artistic content or can reasonably be considered to advance certain ideas, controversial as they may be, or whether its intent is exclusively or fundamentally merely to degrade or ridicule a religion or belief, its sacred figures or symbols.
José Zalaquett
1 Article 11 of the Declaration of the Rights of Man and the Citizen, adopted by the French National Constituent Assembly in 1789, indicates the special status of freedom of expression and of the press when it states that “the free communication of thoughts and opinions is one of the most precious rights of man; therefore, any citizen may speak, write and publish freely, notwithstanding the responsibility for abusing this freedom, in the cases determined by law.”
2 Articles 10 and 11 of the Declaration of the Rights of Man and the Citizen respectively establish the freedom of conscience and of expression. Article 10 states: “no one shall be molested for their opinions, even religious ones, provided these manifestations do not perturb the public order established by law.”
At the same time, the First Amendment to the U.S. Constitution links freedom of expression and other rights by stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
3 Article 14 of the Declaration of the Rights of Man and the Citizen established that “the right of all citizens to verify the need of a public contribution, accept it freely and follow their employment,” and Article 15 indicates that “society has the right to demand theaccount of his administration from any public employee.”
4 Eric J. Hobsbawm, The Age of Extremes (Vintage Books: New York, 1996).
5 Although international humanitarian law has a long history, it expanded considerably in the post-war period with the 1949 Geneva Conventions and their 1977 additional protocols. The international system of human rights has elements that developed in the inter-war period, but as a systematic body of international norms covering the full range of fundamental rights, it is a product of the post-war era. This is also entirely true of international refugee law.
6 Among other international nongovernmental organizations concentrating on freedom of expression during the 1980s were the Fund for Free Expression (an early component of Human Rights Watch); Article 19 - The International Center Against Censorship; Index on Censorship; The Committee to Protect Journalists; Reporters sans Frontières; World Press Freedom Committee; IFEX - a Clearing House for Freedom of Expression Issues. A large number of journalists’ union organizations grew from the same impulse, such as the International Federation of Journalists; associations of writers, such as PEN; or of owners of communications media, such as the Inter-American Press Society and the International Radio Broadcasting Association.
7 The foundation of Amnesty International originated from a newspaper article published by Peter Berenson about the case of Portuguese students imprisoned for toasting to liberty. Starting with that article, an international campaign was begun for the liberation of prisoners of conscience, later defined as those imprisoned for their beliefs or opinions or for their identifying characteristics, who have not used or advocated violence.
8 By Resolution 1993/45 of 5 March 1993, the United Nations Commission on Human Rights designated a special rapporteur on the promotion and protection of the right to freedom of opinion and expression. In 1998, the Inter-American Commission on Human Rights agreed to establish a special rapporteur on freedom of expression.
9 Chile ratified the International Covenant on Civil and Political Rights in 1972, which was promulgated in 1976. However, the military government delayed its publication in the Official Bulletin (without which procedure the Chilean courts did not admit its validity as national law) until April 29, 1989. Chile recognized the competence of the Human Rights Committee established under the covenant by decree published on October 24, 1991, with respect to “all acts that were initiated after March 11, 1990” (the date President Patricio Aylwin took office, ending the military regime that governed from September 11, 1973).
Chile ratified the American Convention on Human Rights, recognizing the competence of the Inter-American Commission and the Inter-American Court only for acts initiated after March 11, 1990. The decree promulgating the convention was published in the Official Bulletin on January 5, 1991.
Under a 1989 constitutional reform law, a second section was added to Article 5 of the Chilean Constitution, which states: “The exercise of sovereignty recognizes as a limitation the respect for the essential rights emanating from human nature. It is the duty of organs of the State to respect and promote those rights, guaranteed by this Constitution, as well as by the international treaties ratified by Chile and in force.”
10 Despite this, there are a number of international conventions that define certain conducts as violations of rights, such as genocide, torture or the enforced disappearance of persons. In this sense, they are more similar to the norms to be found in a country’s penal code.
11 Section 2 of Article 27 establishes that it does not authorize the suspension of the rights determined in the articles of the convention cited therein, nor of the indispensable judicial guarantees to protect those rights. Section 3 of the same article establishes the obligation of the states that make use of the right of suspension to inform the other state parties to the same convention immediately, through the Secretary General of the Organization of American States, of the provisions whose application it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.
12 Resolution 59 (I) of the United Nations General Assembly, of December 14, 1946, declares that “freedom of information is a fundamental human right and ... the cornerstone of all the freedoms to which the United Nations is consecrated.”
The United Nations special rapporteur on the promotion and protection of the right to freedom of opinion and expression indicated in his report of December 14, 1994 that the right to freedom of opinion and expression is a central right of the International Covenant. It is also a civil right, in its capacity to protect this sphere of the life of the individual against undue interference by the state, and a political right, in its capacity to guarantee the individual’s participation in political life, including that of state institutions. As such, the right to freedom of expression may be described as “an essential test right” whose enjoyment demonstrates the extent of enjoyment of all the human rights contained in international instruments. Respect for this right reflects the level of respect for justice and honesty in each country. United Nations, Economic and Social Council, Document (I/CN.4/1995/32, par. 14).
The Inter-American Court has indicated that “freedom of expression is a cornerstone of the very existence of a democratic society. It is indispensable for the formation of public opinion. It is also conditio sine qua non for the full development of political parties, trade unions, scientific and cultural societies, and in general those who wish to influence the community. It is, finally, a pre-condition for the community, at the hour of exercising its options, to be sufficiently informed. Thus, it is possible to affirm that a society that is not well informed is not fully free.” Consultative Opinion OC-5/85, November 13, 1985, par. 50.
Similar concepts of the high value placed on freedom of expression have been repeatedly expressed by the human rights protection bodies of the European system, as well as by the courts of many countries. See “The Article 19 Freedom of Expression Handbook,” International and Comparative Law, Standards and Procedures. Bath Press, Avon, United Kingdom, August 1993.
14 This text is virtually identical to that of Article 19(2) of the International Covenant.
15 United Nations Economic and Social Council, Document E/CN.4/1998/40, 11.
18 An example case is the ruling of the European Court of December 7, 1976, Handyside v. United Kingdom.
20 See “The Article 19 Freedom of Expression Handbook,” pp. 15-17.
21 The European Court has concluded that “freedom of political debate is at the very center of the concept of democratic society.” Ruling of July 8, 1986, Lingens v. Austria. This jurisprudence has been repeated.
22 “The limits of criticism permitted are wider in relation to a politician considered as such than in the case of a private person.” Ruling of the European Court, Lingens v. Austria, par. 42. The report of the European Commission in the same case, dated October 11, 1984, indicates that “the democratic system requires that those performing public functions be submitted to close scrutiny, not only by their political adversaries in state institutions or other organizations, but also by public opinion, which is formed and expressed through the communications media. The exercise of this scrutiny is not merely a right; it may even be considered a “duty” and a “responsibility” of the press in a democratic State” (para. 74). Cited by Francisco Fernández Segado, “La Libertad de Expresión e Información en el Convenio Europeo para la Protección de los Derechos Humanos,” in Cuadernos de Análisis Jurídico, no. 31, serie seminarios. Facultad de Derecho, Universidad Diego Portales (Santiago de Chile: February 1996), p. 382.
23 European Court, ruling of February 24, 1997, De Haes and Gijsels v. Belgium.
24 For a comparative study on laws, jurisprudence and practices relating to freedom of the press, see Press Law and Practice. A Comparative Study of Press Freedom in European and Other Democracies. Article 19 - International Center Against Censorship (United Kingdom: March 1993).
25 Inter-American Court, OC-5/85, Declaration of Judge Pedro Nikken, para. 5.
26 See “The Article 19 Freedom of Expression Handbook,” p. 65.
27 Lingens v. Austria, para. 45.
28 Ruling of April 23, 1992, Castells v. Spain.
31 The European Convention establishes in its Article 10(2) that restrictions to freedom of expression must be "necessary, in a democratic society....”
The Inter-American Court has considered that the same sense is implicit in Article 29 of the American Convention: “No provision of this Convention shall be interpreted as: c) precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government.” Article 32(2) of the American Convention also refers expressly to democracy: “The rights of each person are limited by ... the just demands of the general welfare, in a democratic society.” The Inter-American Court has also taken into account the jurisprudence of the European Court on this point.
32 See “The Article 19 Freedom of Expression Handbook”, pp. 77-78.
34 General Comment 10 on Article 19, adopted by the Human Rights Committee, meeting of July 27, 1983, UN Doc. A/38/40, 109.
38 A study on law and practice relating to the press in a number of democratic countries, most of them in Europe, concluded that nearly all the countries studied showed a strong increase in the concentration of ownership of the press and a process of “mortality of periodicals” in the face of the advance of television. The governments of the countries reacted to this in different ways. France and Germany have strict laws prohibiting commercial transactions that lead to higher levels of concentration in the ownership of printed media. The effectiveness of these laws is limited, however, due in part to the fact that they do not take into account the problem of ownership of communications media of different types. In the United Kingdom, a commission on monopolies and company mergers supervises the merger of periodicals, but its powers are limited. In other countries there is no specific regulation on press ownership, but this may be subject, to a greater or lesser extent, to anti-monopoly laws.
Some countries have a system of subsidies for specific newspapers with financial difficulties. The subsidies tend to be controversial: while some consider that they prevent the rationalization imposed by the market, others hold that they are necessary to ensure pluralism. In certain countries, subsidies are granted on the condition of editorial independence for journalists. In others, temporary subsidies are granted to assist newspapers “of special character” to begin publishing or to survive in difficult periods. (See Sandra Coliver, “Comparative Analysis of Press Law in European and Other Democracies,” in Press Law and Practice. A Comparative Study of Press Freedom in European and Other Democracies, pp. 255-289.
39 In Chile, as described in the body of this report, the National Congress is debating a draft law on this issue, which arose from a recommendation by the National Public Ethics Commission, established by the government in 1994.
40 See Soli J. Sorabjee, in “The Article 19 Freedom of Expression Handbook,” p. 7.
42 E/CN.4/1998/40, paras. 12 and 13.
44 See Francisco Fernández Segado, “La libertad de expresión e información...,” p. 381.
45 For a summary of this jurisprudence, see “The Article 19 Freedom of Expression Handbook,” pp. 146-151.
46 Annual Report of the Inter-American Commission on Human Rights 1994, Secretary General, Organization of American States (Washington, D.C. 1995), pp. 210-223.
47 United Nations Economic and Social Council. Document E/CN.4/1997/31, February 4, 1997.
48 A point of legal interest is whether the law may establish a priori that some expressions constitute in themselves incitement to hate, independently of the circumstances of each case. Such is the case of the Gayssot Law in France, which typifies as a crime the denial of crimes against humanity or so-called Holocaust denial. This law rests on the presumption that such denial, even where presented as historical research and in academic language, is at best a covert form of anti-Semitism and, as such, incitement to racial hate; in any case, that denial would affect the rights of others. The United Nations Human Rights Committee rejected, in 1996, the complaint of a French citizen condemned under this law, because the circumstances of the case itself fell within the terms of Article 20 of the International Covenant. Yet, several members expressed reservations about the Gayssot Law. They were troubled by the fact that the law presumed that a given idea necessarily coincided with theconduct described in Article 20 of the International Covenant. However abhorrent or historically ridiculous an idea may be, and even if in practice it is highly probable that expressing such idea will be a covert form of racial hatred, it would be important to ascertain that the requisites of Article 20 have been met rather than establishing an automatic connection.Robert Faurisson v. France, Communication No. 550/1993, U.N. Doc. CCPR/C/58/D/550/1993 (1996).