The OAS Declaration of Principles on Freedom of Expression establishes a legal framework for the protection of free expression to be adopted by all states throughout the hemisphere. The Declaration states that OAS members are subject to Article 13 of the American Convention on Human Rights (ACHR), which provides for the “right to seek, receive and impart information and opinions freely,” and sets forth principles that clarify how these rights apply to various forms of expression, journalistic activity, libel and slander laws, and monopolies in the media industry. In its accompanying interpretation of the Declaration, guided by the opinions of the Inter-American Commission (IACHR) and the Inter-American Court of Human Rights (IACtHr), the OAS calls for the incorporation of international standards on free expression and human rights into the Inter-American system.
Principle 1 states that freedom of expression is central to a free society and “includes artistic, cultural, social, religious and political expressions, as well as any other type of expression” (Paragraph 8).
Principle 2 establishes the right to receive, seek and impart information without discrimination. It notes that without equal access to information, people cannot take part in the democratic institutions of the state and their needs may not be accounted for in policy decision-making.
Principle 3 establishes the concept of habeas data writ, which gives people the right to undisturbed privacy, as well as the corresponding right to easily access information about themselves stored in public or private databases—without being required to provide a reason for doing so—and to correct anything that is erroneous, sensitive, biased, or discriminatory. The habeas data writ functions as an accountability mechanism, particularly for monitoring states that engage in illegal data collection or surveillance methods (Paragraph 14).
Under Principle 4, states have a duty to honor an individual’s right to access information held by the state—that is, any official government documentation or information from a public source—because transparency is essential to civic participation and oversight. Under the “legitimate needs” test set forth by the IACtHR (Paragraph 20), access to state records can only be limited under exceptional circumstances that are “clearly established by law” in response to “real and imminent danger [to] national security.”
Principle 5 prohibits all prior censorship of, interference with, or pressure exerted upon expression or the free flow of information. Here, as in its interpretation of other Principles, OAS cites the IACtHR in defining prior censorship and recognizing the right of each person to express himself and to be well-informed (Paragraph 25). It also cites the Inter-American Commission’s conclusions that state-imposed “limitations on the free flow of ideas that do not incite lawless violence” lead to the abuse of power (Paragraph 27).
Principles 6-9 focus specifically on journalistic activity. Principle 6 applies the above protections to journalists, citing the IACtHR’s opinion that journalism depends on the right to free expression, which would be restricted if journalists were required to be members of professional organizations or to obtain a state license (Paragraph 30). Under Principle 7, conditioning the dissemination of information on its “truthfulness, timeliness, or impartiality” violates free expression by making the state the arbiter of the truth (Paragraph 31). Erroneous information produced with “actual malice” may be punishable, but only through the imposition of liability subsequent to the act of expression (Paragraph 35).
Principle 8 establishes the right to confidentiality, which enables “every social communicator to refuse to disclose sources of information and research findings to private entities, third parties, or government or legal authorities” (Paragraph 36). Finally,
Principle 9 affirms states’ obligation to investigate, prosecute, and punish the “murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications.” Such acts eliminate those who investigate and report on abuses or illegalities and deter others from doing so, thus denying society its right to receive information (Paragraph 39).
Principles 10-13 deal with state influence over media laws and the media industry. Principle 10 establishes legal standards for balancing privacy rights and free expression in the enforcement of liberal or slander laws. Civil sanctions for violating such laws can only be imposed if, in disseminating news about public officials or people voluntarily involved in matters of public interest, a social communicator “had specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news” (Principle 10). Since libel or slander laws are often used to silence criticisms of public officials, this Principles places the burden of proof on individuals affected by the dissemination of false information to demonstrate that the disseminator did so with “actual malice,” defined as “express intention to cause harm, with full knowledge that the information was false or with manifest negligence in the determination of the truth or falsity of the information” (Paragraph 46). Moreover, the state may not impose liability on someone who publishes information that is a value judgment, compel someone who criticizes public officials to verify their claims, or hold a third party that reproduces information responsible for its veracity (Paragraphs 47-49).
Principle 11 prohibits “desacato” [contempt] laws, which punish those that insult or offend a public official, since the scrutiny of public officials is a core pillar of democratic society (Paragraph 50).
Principle 12 states that monopolies or oligopolies in the media communications industry must be subject to antitrust laws, since control by a small group of individuals denies others equal opportunity to receive and impart information and limits the pluralism and independence of the media (Paragraph 53).
Finally, Principle 13 prohibits state pressure, punishment, reward, or granting of privileges to social communicators based on their expressed opinions or approach to coverage, since such use of state power interferes with media independence, censors criticism of authorities, and impedes the free diffusion of information (Paragraphs 56-58).
The full background and interpretation of the declaration is available here. The preamble is available at here.
The summary of this document is part of the report produced on the Stanford Law School Intermediary Liability and Human Rights Policy Practicum and is based on the work of Shelli Gimelstein. The full report "The 'Right to Be Forgotten' and Blocking Orders under the American Convention: Emerging Issues in Intermediary Liability and Human Rights", can be accessed here.