Human Rights in Latin America

Ko'aga Roñe'eta


Prior Censorship in the American Convention on Human Rights

Ariel Dulitzky
Director Ejecutivo


"...Llamad a la previa censura, revisión o aprobación, junta protectora o tribunal de libertad, consejo literario o consejo de hombres buenos, admonición ministerial de carácter amistoso, dadle si queréis nombres más decentes y amables que éstos y no tendréis otra cosa por resultado, que el régimen...absolutista..."

Juan Bautista Alberdi(1)

Freedom of expression and information in the American Convention on Human Rights. The prohibition of prior censorship in the American Convention. Prior censorship and the double dimension of freedom of expression. The conventional possibilities for prior censorship. The protection of honor, subsequent imposition of liability and prior censorship. Freedom of Expression without consideration of frontiers. Conclusion.

Francisco Felipe Martorell Cammarella, a Chilean journalist was the acting general editor of "Análisis," a seminal Chilean periodical, when in November of 1991, he published an article in "Análisis" where he described the activities of Santiago Spinoza Melo, Argentina's ex-Embassador to Chile. One year later a publishing company contacted Martorell with the intention of soliciting him to write a book about the theme. This book, entitled "Diplomatic Impunity" (Impunidad diplomática) was published in Argentina on the 21 of April 1993, and was planned to be published in Chile the next day.

However, days before the book was presented, one of the people mentioned in the book --Andrónico Luksic Craig-- submitted a petition of protection before the Court of Appeals in Santiago, Chile, requesting the prohibition of the distribution of the book in Chile; the Seventh Chamber of this court resolved to assign a temporary injunction to suspend the import, distribution and circulation of the book within the country.(2) On the 31st of May, 1993, the Court of Appeals, in a divided vote, decreed a permanent prohibition with respect to the book. On the 15th of June , 1993, the Chilean Supreme Court of Justice confirmed the decision of the Court of Appeals. To this date, the country's authorities have not allowed the book to enter Chile or to circulate commercially.

Having exhausted domestic remedies, Martorell in conjunction with the Center for Justice and International Law (CEJIL) and Human Rights Watch/Americas, presented a petition before the Inter-American Commission on Human Rights,(3) on the 23 of December 1993. This petition argued that the State of Chile violated Article 13(2) of the American Convention on Human Rights,(4) ratified by the State of Chile on August 21, 1990.

Using this case, the final report for which was approved by the Inter-American Commission in May of this year.(5) This paper will analyze the prohibition of prior censorship established in the American Convention and at the same time, make a comparison between this case and another from Granada, also about prior censorship, resolved by the Inter-American Commission in the last year.(6)

Before entering into the substance of the argument, it is important to note that the Inter-American Court of Human Rights(7) has not yet had a case relating to freedom of expression under its contentious jurisdiction and there have been very few cases relating to freedom of expression presented before the Inter-American Commission.(8)

Freedom of expression and information in the American Convention on Human Rights

The American Convention on Human Rights preserves and protects a very wide conception of freedom of thought and expression. In terms of the protection of freedom of expression, the Convention intends to protect the autonomy of persons and to protect their right to express, create and receive information; at the same time it intends to ensure the function of democracy to guarantee the free exchange of ideas in the public forum.(9) The Convention recognizes the right to freely express oneself in the title and first subsection of Article 13.

Article 13. Freedom of Thought and Expression.

1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive and impart information or ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or any other medium of one's choice.

According to the Inter-American Court of Human Rights, "freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard.(10) The Convention seeks to maximize the possibilities for participation in public debate especially, considering that in addition to protecting the expression of ideas, the Convention recognizes the collective right to be informed and the right of reply.(11) The Convention guarantees the right to information with the intention of promoting and protecting the diversity of sources; and also the right to reply in order to assure access to the public forum for those affected by inexact or defamatory information.

This wide conception of freedom of expression and information requires that the Convention establish strict limits on the restriction of liberty. The Convention contains general norms in order to interpret potential restrictions to the rights it guarantees;(12) in the case of freedom of expression, these general provisions are complemented by the specific limits established in Art.13 of the Convention.

Pursuant to the general rules established in the Convention, freedom of expression is not an absolute right, but one that admits restrictions(13) in order to accommodate its exercise with the rights of others, the security of all and the necessities of the common good in a democratic society (Art.32 of the Convention).(14) However, the restrictions on freedom of expression can not be more extensive than those established in Art.13 (as established in Art. 29 of the Convention), nor may they be applied, "except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established." (Art. 30 of the Convention).

More specifically, Art.13 dedicates the second and third subsections to the establishment of limits and restrictions on the right to freedom of expression, creating a six-point test to evaluate the legitimacy of those restrictions. Article 13 subsection 3 develops a final limitation which prohibits indirect restrictions to the right to freedom of expression:

13.3. 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 other means tending to impede the communication and circulation of ideas and opinions.

The prohibition of prior censorship in the American Convention.

The American Convention, following the tradition of constitutional Latin America,(15) expressly prohibits any form of preventative methods in the limitation of the exercise of freedom of expression. In its article 13(2) the American Convention clearly establishes that:

The exercise of the right provided for in the preceding paragraph [freedom of expression] shall not be subject to prior censorship but shall be subject to subsequent imposition of liability...

In order to interpret this subsection the Court established that:

Abuse of freedom of information thus cannot be controlled by preventative measures but only through the subsequent imposition of sanctions on those who are guilty of the abuses.(16)

It is interesting to note a comparison between the American Convention and its contemporaries at the universal and regional level which, ultimately, reveals the special protection of freedom of expression that the American Convention contains. It becomes clear that the only instrument that expressly includes the prohibition of prior censorship is the American Convention. Neither the International Covenant on Civil and Political Rights of the United Nations, nor the European Convention, nor the African Charter contain explicit references to the proscription of all methods of preventative controls on the freedom of expression.(17)

In fact, as the Inter-American Court has established, there is an intentional difference in the text of article 13 of the Convention, as compared to article 19 of the Covenant or article 10 of the European Convention on Human Rights,(18) which

indicates clearly that the guarantees contained in the American Convention regarding freedom of expression were designed to be the most generous and to reduce to a bare minimum the restrictions impeding the free circulation of ideas(19)

In the comparison of the critical distinction between prior censorship and subsequent imposition of liability, it is important to compare Article 13 (2) of the Convention with article 19 of the International Covenant on Civil and Political Rights,(20) which served as a model for the Convention. As Judge Rodolfo Piza Escalante, a former judge of the Inter-American Court, has noted,

Article 19 (3) of the International Covenant corresponds almost exactly with article 13 (2) of the American Convention, except in so far as the latter adds the barring of all prior censorship and to which it expressly substituted the possibility of "certain restrictions," of the former for that of "subsequent imposition of liability," (21)

The differences in the texts of the two treaties, emphasized Judge Piza, "cannot be considered accidental or semantical but intentional and substantive."

Article 13 (2) contains a clear and intentional distinction between "prior censorship" and "subsequent imposition of liabilities," the first being expressly prohibited and the second being lawful only in limited cases, when necessary to secure respect for the rights or reputation of others. The objective of this fortunate disposition is to construct a procedural guarantee for freedom of thought(22) to prevent a priori exclusion of certain people, groups, ideas and means of expression from the public debate.(23)

According to Article 13(2), prior censorship is prohibited independently of whether it is established by judicial or executive authority. The distinctive characteristic of prior censorship is not determined by the branch of state power that restrains the freedom. The crux of censorship consists in the limitation by the state -- through any of its organs -- of the exercise in the future of the right to freedom of expression. In fact, the Inter-American Court has established, in a wide and unconditional manner, that any preventative measure constitutes prior censorship, and ultimately, an impairment of free speech.

Article 13.2 of the Convention....stipulates, in the first place, that prior censorship is always incompatible with the full enjoyment of the rights listed in Article 13, but for the exception provided for in subparagraph 4 dealing with public entertainments, even if the alleged purpose of such prior censorship is to prevent abuses of freedom of expression. In this area any preventative measure amounts to an infringement on the freedom guaranteed by the Convention.(24)

The time when the censorship is realized rather than the precise character of the involved agent of the state, is the determinant to distinguish prior censorship from a legal restriction.(25) Clearly, the drafters of the American Convention did not intend to limit the prohibition of prior censorship only to certain practices. On the contrary, taking into account the experience of the Americas, they abolished prior censorship in general, indistinctly from the branch of government that acts as censor.

Taking this into account in the Martorell case, the Inter-American Commission did not accept the argument of the Chilean government that there would not be prior censorship but only "an independent decision of the tribunals based on Chilean law."(26) In response, the Commission found that:

the State of Chile, by means of the resolution of the Supreme Court of Justice...has violated article 13 of the American Convention on Human Rights.(27)

Prior Censorship and the double dimension of freedom of expression

All of the jurisprudence in the Inter-American system of protection for human rights has been constructed in light of the double aspect of freedom of expression. In effect, it is considered that this freedom has an individual dimension, represented by the right of every person to impart ideas and information; at the same time there is a collective aspect, consisting of the right of the entire society to receive those ideas and information.(28)

Here, the Commission has held that:

freedom of expression is precisely the right of the individual and of the entire community to engage in active, challenging and robust debates, about all issues pertaining to "the normal and harmonious functioning of society."(29)

From this perspective, any violation of freedom of expression affects not only the person directly involved but also the society as a whole. Here the Inter-American Court, in the previously cited Advisory Opinion OC-5/85, has stated that:

...when the individual's freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to "receive" information and ideas...It requires, on the one hand, that none will be arbitrarily limited or impeded in expressing his own thoughts. In that sense it is a right that belongs to each individual. Its second aspect, on the other hand, implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others.(30)

If these considerations are valid for freedom of expression in its entirety, they are especially valid in the analysis of prior censorship. At this point it should be established that prior censorship not only affects the individual, but that simultaneously, it affects the entire society's right to receive a publication, idea, thought, opinion, artistic expression, etc. Thus, these two dimensions "of freedom of expression need to be guaranteed simultaneously."(31)

The Inter-American Court has engaged in a concrete application of these two dimensions, noting that if there is prior censorship it produces "an extreme violation of the right to freedom of expression" by "impeding the free circulation of information, ideas, opinions or news." This constitutes an extreme violation:

not only in that it violates the right of each individual to express himself, but also because it impairs the right of each person to be well informed, and thus effects one of the fundamental prerequisites of a democratic society.(32)

In the two cases under analysis, the Inter-American Commission has followed this jurisprudence very closely, and reiterates, in both cases, that freedom of expression has an individual dimension as much as a social dimension.(33) In spite of this similar analysis, the conclusions reached in each of the above cases are different. In a manner consistent with the jurisprudence discussed above, the Commission signal, in the Grenada case, that prior censorship, consisting of the confiscation and the prohibition of books has:

the effect of imposing "prior censorship" on the freedom of expression, and therefore has violated the two-fold aspects of the right to receive and impart information to "everyone"(34)

By contrast, in the Martorell case -- in spite of citing identical jurisprudence-- the Commission concluded that only the right to impart information and ideas was violated, without any mention of the right of society to receive information and ideas. In effect the Commission established that:

the decision to prohibit the import, circulation, and the distribution of the book "Diplomatic Impunity," in Chile infringed on the right to impart "information and ideas of any kind" that Chile is obligated to respect.(35)

The conventional possibilities for prior censorship

Although it was not directly discussed in the cases under discussion, it is important to note that the American Convention, along with its express prohibition of prior censorship, contains two possibilities for the establishment of preventative controls on the exercise of freedom of expression. One of these is explicit and the other implicit. The only explicit possibility for establishing prior censorship is contained in Article 13.4:

public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence...(36)

Certainly, this clearly delineated exception refers to the fact that prior censorship is under any other circumstance illegal. Here again, it is useful to refer to the words of the Court:

prior censorship is always incompatible with the full enjoyment of the rights listed in Article 13, but for the exception provided for in subparagraph 4 referring to public entertainments.(37)

The second possibility for the establishment of prior censorship is seen in the case presented by a state of emergency that permits the suspension of certain guarantees. In the American Convention, this possibility is governed by Article 27. Freedom of expression is not included among the non-derogable rights (Art.27.2). For that reason, prior censorship could be employed in these circumstances.(38)

It is clear, in any case, that prior censorship may not be employed, even in a state of emergency, unless the strict requirements of Article 27.1 of the Convention are met.(39) In such cases, the acceptability of prior censorship would depend on the character, intensity, profundity and the particular context of a state of emergency, as well as the proportionality and reasonableness that the prior censorship would hold in relation to the emergency.(40)

The protection of honor, subsequent imposition of liability

In general, however, the permissible limitations on freedom of expression, as mentioned above, consist in the imposition of subsequent liabilities. In its jurisprudence, the Court excludes the possibility of effecting any type of prior censorship, authorizing only the subsequent imposition of liabilities, but reasoning that:

Even here [in the subsequent imposition of sanctions] in order for such liability to be valid, under the Convention, the following criteria must be met:

a. the existence of previously established grounds for liability;

b. the express and precise definition of these grounds by law;

c. the legitimacy of the ends sought to be achieved;

d. a showing that these grounds of liability are "necessary to ensure" the aforementioned ends.

All of these requisites must be met in order to completely adhere to article 13.2.(41)

The States, conscious of the urgent necessity to maintain a balance between fundamental human rights, at the moment of drafting the Convention, delineated in a clear and precise manner, the right of freedom of expression and the right to have one's honor respected. In regard to this balance, in Article 13(2), the Convention specifically establishes a fundamental difference between "prior censorship" and "subsequent imposition of liability." Emerging from the premise that the imperative nature of the right to free expression prohibits in an absolute manner any recourse to prior control as a means of protection for the right to honor, the Convention concludes that "the subsequent imposition of liability" constitutes the appropriate and acceptable means in order to prevent abuses in the exercise of the right to freedom of expression that could affect the right to honor and other rights.

The distinction between prior censorship and the subsequent imposition of liability, on this point, was essential in the resolution of the two cases under analysis. However, the Inter-American Commission again differentiated in the criteria applied in each case. In effect, in the case of Granada the Inter-American jurisprudence is set aside, without explanation and the Commission opens a dangerous line of interpretation. The Commission maintains that the Government did not demonstrate that the content of the books in question fell within the exceptions provided in Article 13 on the grounds that they affected the human rights or the reputation of others, or the protection of national security, or the public order, or public health, or public morality, and therefore, that they would be subject only to the subsequent imposition of liability.(42)

The Commission does not clearly state whether it considers that there exists an exception to the explicit prohibition of prior censorship (par. 5, on the grounds established in subparagraph 2 of Article 13) or if there is only the possibility of establishing subsequent liability (par.6). What would have happened if the Government had demonstrated or proved -- as was attempted in the Martorell case-- that what the book contained would affect the public order, morality etc.? Would that justify, before the Commission, prior censorship? The Commission should have established, in conformity with article 13.2 of the Convention, not merely a failure of proof, to prove intent, but also the legal impossibility of establishing preventative controls on freedom of expression.

In the Martorell case, the Commission explicitly and notably differentiates from the previous case, indicating that "it is not for the Commission to examine the content of the book in question or the conduct of Mr. Martorell, because it does not have competence in the matter... "(43) In that ruling, the Commission agreed that the right to honor was required to be protected under Chilean law and that those persons whose honor and dignity was found to be harmed "have, in the Chilean Courts, adequate remedies to settle that question."

However, the Commission failed to establish what would happen if there were no appropriate recourse for the protection of the honor and dignity of persons in Chilean law or if that protection only existed in the prohibition of the book. The Commission thus did not explicitly reject the governmental thesis that it might be possible to engage in prior censorship under certain circumstances, in spite of the explicit text of Article 13.2 of the Convention.

In the Chilean case, the Commission faced the consideration of two rights: freedom of expression --invoked by petitioners-- and the right of honor guaranteed by article 11(44) -- presented by the government. The Commission sustained that it could not accept the point of view of the Chilean Government to the effect that the right to honor would take priority over the right to freedom of expression. Applying Articles 29 and 32(45) of the Convention, the Commission held that the analysis of both rights (Art. 11 and 13) did not present a conflict, but that:

the dispositions of article 11 cannot be interpreted, by the organs of the state , in any form that results in a violation of Article 13 of the American Convention, that prohibits prior censorship...The method that the Chilean state uses to protect honor in the current case is illegitimate.(46)

The possible conflict that could arise in the application of articles 11 and 13 of the Convention can be solved by referring to the terms employed in the same article 13, which is to say by the means of the imposition of subsequent liabilities for those who violate the right to honor.(47)

Freedom of expression without consideration of frontiers

There is a final point of difference in the analysis of these two cases from Granada and Chile. Both assume that the origin of the prohibition on printing books is the state. In addition to the fact that both cases constitute a typical example of prior censorship, prohibited pursuant to Article 13.2 of the Convention, they also both represent a violation of the first subsection of that article which guarantees freedom of thought and expression without consideration of frontiers.

Despite what they have in common, what was decided in the Grenada case was not duplicated in the Chilean case. First, the Grenada case holds that the preventative measures affect the "two-fold aspects of the right to receive and impart information "to everyone" both within and outside of the community regardless of frontiers..."(48) Later it states that: "The petitioners' right to transport the books to Grenada, and the right to receive such books in Grenada, are protected by Art. 13... "(49) This point was not made in the Martorell case in spite of the fact that it also dealt with the prohibition on the importation and circulation of a book.(50)


The American Convention on Human Rights, in the area of freedom of expression contains a text summarily guaranteeing that impediments to freedom of circulation of ideas and information should be reduced to a minimum, emphasizing especially the fundamental distinction between prior censorship and subsequent imposition of liability and absolutely prohibiting the first of these.

Understanding that the Inter-American Court of Human Rights has not yet had the opportunity to resolve a case about freedom of expression, the Court has taken opportunities to develop jurisprudence that prohibits, as a violation of the Convention, any type of preventative measures limiting the exercise of the freedom of expression.

For its part, the Inter-American Commission on Human Rights, in the last year has confronted two cases of prior censorship. Despite the similarity of the cases to be decided, the analysis of the Commission in each was different. However, what is most important is that the Commission, acting in accordance with the jurisprudence of the Court, has established that prior censorship, characterized in both cases by the denial of entry of publications in the country, constitutes a violation of freedom of expression guaranteed by article 13.2 of the American Convention.

1. Juan Bautista Alberdi, Obras Completas, Bs. As. 1886, t. III, p. 107.

2. Order to suspend prohibiting the "import and commercialization" of the book in Chile.

3. Hereafter "the Commission" or "the Inter-American Commission."

4. Hereafter "the Convention" or "the Inter-American Convention."

5. Report No. 11/96, case 11.230-Chile, May 3, 1996.

6. On March 8, 1989 in the Point Salines airport in Grenada, four cases of books were retained by the police, impeding their entry into the country. The books were addressed to Terence Marryshow (leader of the Maurice Bishop Patriotic Movement) from Pathfinder Press in New York. See Report No. 2/96, case 10.325-Grenada, March 1, 1996.

7. Hereafter "the Court," or the "Inter-American Court."

8. José Thompson, La libertad de prensa en el sistema interamericano de protección a los derechos humanos, in The modern World of Human Rights, San José, 1996, p. 231.

9. I have omitted an extensive development of the different philosophical positions that justify freedom of expression.

10. Inter-American Court of Human Rights. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism. (Arts.13 and 19 American Convention on Human Rights), Advisory Opinion OC-5/85 November 13, 1985. Series A No. 5. (Hereafter OC-5/85), par. 69.

11. Article 14 of the American Convention recognizes the right to reply. In its first subsection it notes: "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." See Advisory Opinion OC-7/86 Enforceability of the Right to Reply or Correction (Arts. 14.1 and 1.1 and 2 American Convention on Human Rights).

12. Among others Article 29: "No provision of this Convention shall be interpreted as permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent that is provided for herein;" Article 30: "The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established;" Article 32.2: "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."

13. The Inter-American Court has defined the concept of restrictions in the context of freedom of expression in the following manner: "liabilities imposed by law for the abusive exercise of freedom of expression", OC-5/85, par. 35.

14. Thus, for example, Art..13 is one of those that can be suspended in accordance with the provisions of Art. 27 of the Convention.

15. Constitution of the Republic of Honduras . Art. 72 (with a possible exception previewed in Art. 72);Constitution of the Republic of Venezuela, Art. 66; Constitution of the Nation of Argentina, Art. 14; Political Constitution of the Republic of Panama, Art. 37; Political Constitution of the Republic of Costa Rica, Art. 29, Constitution of the Federal Republic of Brazil, Art. 5.IX; Political Constitution of the United States of Mexico, Art. 7; Constitution of the Republic of Uruguay, Art. 29; Political Constitution of the Republic of Chile, Art. 19.12; Political Constitution of the Dominican Republic, Art. 8.6; Political Constitution of Peru, Art. 2.4; National Constitution of Paraguay, Art. 26 and 29 (pertaining to a the right of a journalist to publish his opinions without censorship, in the medium in which he works); Political Constitution of Nicaragua, Art. 67 and 68 (pertaining to the prohibition of prior censorship in mediums of communication); Political Constitution of the Republic of Guatemala, Art. 35; Political Constitution of Colombia, Art. 20; Political Constitution of the Republic of El Salvador, Art. 6. Cf. Humberto Quiroga Lavié, Derecho Constitucional Latinoamericano, Universidad Nacional Autónoma de Méxcio, 1991, pp. 165 et seq.

16. OC-5/85, par.39. Emphasis added.

17. See article 19 of the International Covenant on Political and Civil Rights, Art. 10 of European Convention and Article 9 of the Charter of Banjul. It is interesting to note that the Principles of Johannesburg on National Security, Freedom of Expression and Access to information establish that: "Principle 24: Expression cannot be an object of prior censorship in the interests of protecting national security, except in times of public emergency that threatens the life of the country in accord with the conditions established in Principle 3" (author's translation).

18. For an analysis of the permissibility of previous controls in European jurisprudence, consult, Louis Eduard Pettiti and others. La Convention Européene des Droits de L'Homme, Economica, 1995, p. 387.

19. OC-5/85, par. 50. The drafters of the American Convention did not follow the model of the First Amendment of the American Constitution. Neither did they follow Article 19 of the Universal Declaration of Human Rights. They articulated a general principle and did not specify permissible limitations on freedom of expression. Perhaps in the decision between rules and discretion they had in mind the particular characteristics of our politics and the strengths and weaknesses of our institutions. See Stephen Macedo, Rule of Law, Justice and the politics of moderation, in The Rule of Law, Nomos XXXVI, New York University Press, 1994, p. 168.

20. In the discussion of the drafting of the Covenant, 11 American States proposed a similar text to that which would subsequently become Art. 13.2 of the American Convention, prohibiting prior censorship. Manfred Nowak, UN Covenant on Civil and Political Rights, N.P. Engel Publisher, 1993, p. 349.

21. OC-5/85, separate opinion of Judge Piza Escalante, par. 8. In fact, the Court had already observed the differences in the texts of the two in the same Advisory Opinion. par. 45.

22. Carlos Nino speaks about the procedural restrictions or procedural guarantees established to protect freedom of expression, concluding that among them the prohibition of prior censorship is the best method of diminishing the danger of abuses of freedom of expression. Fundamentos de Derecho Constitucional, Astrea, Bs.As., 1992, pp. 267 and 275.

23. OC-5/85, par. 34. The Constitutional Chamber of the Costa Rican Supreme Court of Justice, in sentence # 2313-95 May 9, 1995 applied this jurisprudence to consider illegal the compulsory membership of journalists in associations and interpreted that this Advisory Opinion of the Inter-American Court was obligatory for the State.

24. OC-5/85, par. 38 (emphasis added).

25. The Supreme Court of the United States, in its first concrete pronouncement on prior censorship, concluded that the fact that censorship originated from Judicial power instead of the Executive, was irrelevant in condemning the act. See Near v. Minnesota, 283 U.S. 697 (1931) (overturning a decision that censured a periodical for being considered "malicious, scandalous and defamatory," on the basis that said decision constituted prior censorship). Further still, in subsequent cases the Court has consistently reaffirmed this basic rule. See Blasi, Toward a Theory of Prior Restraint, 66 Minn. L. Rev. 11,15 (1981) (establishing that judicial decisions against the publication or diffusion of information lie "in the heart of the doctrine of prior censorship"); Hunter, Toward a Better Understanding of the Prior Restraint Doctrine, 67 Cornell L. Rev. 283 (1982)(concluding that judges are no better suited to administer a system of censorship than bureaucrats).

26. Report 11/96, pp. 7 and 8.

27. Report 11/96, Conclusions and Recommendations, p. 17.

28. The Supreme Court of Argentina speaks of a third dimension which is the right of the owners of the press. Case "Ponzetti de Balbín c/Editorial Atlántida", Fallos 306:1892, consid. 7.

29. Report on the compatibility of the "desacato" laws with the Inter-American Convention on Human Rights, in Annual Report of the Inter-American Commission on Human Rights 1994, Washington, D.C., 1995, p. 218.

30. OC-5/85, par. 30.

31. OC-5/85, par. 33.

32. OC-5/85, par. 54.

33. Report 2/96, point 4 and Report 11/96, pp. 9 and 10.

34. Report 2/96, point 5.

35. Report 11/96, pp. 11.

36. The Convention on the Rights of the Child in Article 13 includes wording similar to Article 19 of the Covenant on Civil and Political Rights. Article 1, section (e) of the Convention on the Rights of the Child requires state parties to "Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of Articles 13 and 18. " This wording is significantly less guaranteeing of freedom of expression than what is contained in the American Convention.

37. OC-5/85, par. 38.

38. Various Latin American Constitutions expressly establish that during exceptional circumstances one can establish prior censorship. For example, Political Constitution of Bolivia, Art. 112 (authorizing censorship in the case of international war), Political Constitution of the Republic of Chile, Art. 41 (regarding the state of exception that authorizes the President of the Republic to enforce censorship), Political Constitution of the Republic of Ecuador, Art. 79 (permitting the President of the Republic, during states of national emergency, to establish prior censorship).

39. That article indicates that: "In times 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 of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the grounds of race, color, sex, language, religion, or social origin."

40. The Inter-American Court, Advisory Opinion OC-8/87, Habeas corpus in Emergency Situations (Arts. 27.2, 25.1 and 7.6 American Convention on Human Rights), par. 21 and 22.

41. OC-5/85, par. 39.

42. Report 2/96, paragraphs 5 and 6 respectively.

43. Report 11/96, pp. 12.

44. That Article establishes: "1. Everyone has the right to have his honor respected and his dignity recognized. 2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. 3. Everyone has the right to the protection of the law against such interference or attacks."

45. See note 11.

46. Report 11/96, pp. 13.

47. Report 11/96, pp. 14.

48. Report 2/96 Case 10.325. Sect. VII, b. Par. 5.

49. Report 2/96 Case 10.325. Sect. VII, b. par.8.

50. The recognition of freedom of expression without consideration of frontiers has been illuminated by the United Nations Special Rapporteurs on the theme. Danilo Turk and Louis Joinet in their Preliminary report and Final report on The right to freedom of opinion and expression, E/CN.4/Sub.2/1990/11, par. 33-35 y E/CN.4/Sub. 2/1992/9, par. 47, respectively.

Cite as: Dulitzky, Ariel Prior Censorship in the American Convention on Human Rights KO'AGA ROÑE'ETA se.vii (1997) -

Human Rights in the Americas
Ko'aga Roñe'eta, Series VII

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