Freedom of Expression
Press Release 159/06
OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION RELEASES RECOMMENDATIONS TO URUGUAY AT THE CONCLUSION OF ITS WORKING VISIT
Montevideo, December 16, 2006.At the conclusion of its working visit to the Oriental Republic of Uruguay, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) of the OAS observes the high value placed on freedom of thought and expression in the country and formulates the following recommendations to the State in order to continue to advance in this matter: 1) Move forward with the investigations related to the disappearance of the teacher and journalist Julio Castro, which occurred in 1977, during the military dictatorship; 2) Make its legislation compatible with the American Convention on Human Rights in the matter of freedom of expression, which includes the repeal of the crime of desacato (disrespect), which is contemplated in Article 173 of the Penal Code, as well as the modification of Articles 333 to 336 of the Penal Code, and the related laws, with the aim of eliminating criminal sanctions with respect to crimes against honor or reputation derived from the dissemination of information about issues of public interest; and 3) Give prompt consideration to two bills related to freedom of expression that are currently under consideration in the Legislative Branch, one on access to information and the other on broadcasting and community media.
During the visit to Uruguay, carried out from December 13 to 16, 2006, the Special Rapporteur for Freedom of Expression, Ignacio J. Álvarez, attorney Daniel Cerqueira, and journalist María Isabel Rivero, specialists in the Office of the Special Rapporteur, met with representatives of the State, communications media, civil society, journalists, and academics. At the state level, they held meetings with the Vice President of the Republic and President of the Senate, Rodolfo Nin Novoa; the Secretary of the Presidency, Gonzalo Fernández; the Undersecretary of Foreign Affairs, Belela Herrera; the Undersecretary of Education and Culture, Felipe Michelini; the Commission on Education and Culture of the Senate; the president of the Commission on Population and Development of the Chamber of Deputies, Horacio Yanes, and one of its members, Pablo Álvarez López; and the president of the Supreme Court of Justice, Hipólito Rodríguez Caorsi, among others. At the level of communications media, the Office of the Special Rapporteur held meetings with Newspaper Association of Uruguay (Asociación de Diarios del Uruguay); the Press Organization of the Interior (Organización de Prensa del Interior, OPI); the International Association of Broadcasting (IAB); and the National Association of Uruguayan Broadcasters (Asociación Nacional de Broadcasters Uruguayos, ANDEBU). Additionally, the delegation met with recognized civil society organizations, including the Uruguayan Press Association (Asociación de la Prensa Uruguaya, APU); the World Association of Community Radio Broadcasters (AMARC, by its Spanish acronym); the Institute of Legal and Social Studies of Uruguay (Instituto de Estudios Legales y Sociales del Uruguay, IELSUR); and the Group Archives and Access to Public Information (Grupo Archivos y Acceso a la Información Pública, GAIP). The delegation also held meetings with journalists and an academic meeting with representatives of the Departments of Communications Sciences of the University of the Republic (Universidad de la República) and the Catholic University of Uruguay Dámaso Antonio Larrañaga (Universidad Católica del Uruguay Dámaso Antonio Larrañaga, UCUDAL), of the School of Social Communication of the Technical College of Uruguay (Universidad del Trabajo del Uruguay, UTU), and of the Human Rights Institute of the Law School of the University of the Republic.
These meetings permitted the Office of the Special Rapporteur to complement and update the information in its possession on the situation of freedom of expression in Uruguay. The Office of Special Rapporteur presents its specific observations in an annex to this press release.
The Office of the Special Rapporteur thanks the organs of the State, the communications media, the civil society organizations, the journalists, and the academic community for their extensive collaboration. The Office of the Special Rapporteur reiterates, as part of its mandate, its disposition to collaborate and provide technical assistance to the initiatives related to freedom of expression that are being presented in the country.
For additional information about the Office of the Special Rapporteur: http://www.cidh.org/relatoria/
OBSERVATIONS AND RECOMMENDATIONS REGARDING THE SITUATION OF FREEDOM OF EXPRESSION IN URUGUAY
This document is an annex to press release 159/06 of December 16, 2006 of the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR).
1. Violations of the right to freedom of thought and expression during the military dictatorship
The Office of the Special Rapporteur for Freedom of Expression received information that the remains of Mr. Julio Castro, who disappeared during the dictatorship, have not been located. Mr. Castro, an educator and journalist who co-founded the weekly “Marcha” along with Dr. Carlos Quijano, disappeared on August 1, 1977. The disappearance of Mr. Castro is a paradigmatic case of the violations of freedom of thought and expression that characterized Uruguay during the dictatorship, in the framework of which there were disappearances, torture, arbitrary detentions, and other grave violations of human rights. The Office of the Special Rapporteur considers that the efforts of the current government to locate the remains of the disappeared constitute an important advance and hopes that these crimes will not remain in impunity.
2. Legislation on desacato and defamation
Article 173 of the Penal Code of Uruguay contemplates the crime of desacato, or disrespect, in the following terms: “Desacato is committed when one impairs the authority of functionaries in one of the following ways: by means of real offenses, written or verbal, carried out in the presence of the functionary or in the place where he or she carries out his or her duties, or outside of the place and the presence of the same [functionary], but in the latter two cases, motivated by or as a result of the official functions.” It establishes a penalty of three to eighteen months in prison.
The IACHR has indicated that the crime of desacato, which affords special protection to the honor and reputation of public officials, is incompatible with the right to freedom of expression as contemplated in Article 13 of the American Convention on Human Rights, since, in a democratic society, public functionaries, instead of receiving special protection, should be exposed to a greater degree of criticism, which makes possible a broader public debate and democratic control with respect to their actions.
Principle 11 of the Declaration of Principles on Freedom of Expression, approved by the IACHR in 2000, indicates that: “Public officials are subject to greater scrutiny by society. Laws that penalize offensive expressions directed at public officials, generally known as ‘desacato laws,’ restrict freedom of expression and the right to information.”
The Office of the Special Rapporteur for Freedom of Expression notes that in recent years, desacato laws have been repealed in nine countries of the region. This reveals a positive tendency that should be taken into account by the authorities of the states where such laws remain in effect. Based on these considerations, the Office of the Special Rapporteur urges Uruguay to repeal Article 173 of its Penal Code.
Additionally, the Office of the Special Rapporteur considers it equally important that Uruguay modify Articles 333 to 336 of the Penal Code relating to defamation crimes, as well as the related regulations. In this respect, the Office of the Special Rapporteur notes that in recent years various individuals, especially journalists, have been criminally tried for such crimes, and in September of this year, the Supreme Court of Justice sentenced the journalist Carlos Dogliani Staricco to five months in prison (suspended) for defamation, for having published an investigation about fraud that was supposedly committed by an intendant. The Office of the Special Rapporteur expresses its concern about this judgment, which reverses its prior jurisprudence and is contrary to the standards of the inter-American human rights system, according to which it is not proportionate in a democratic society that offenses against honor and reputation are sanctioned penally in cases arising from the dissemination of information about issues of public interest. This judgment is regressive and tends to create an environment that is unfavorable for the exercise of freedom of expression. Penal proceedings based on the dissemination of information of public interest are a disincentive to investigation and discussion of issues relevant to society and inhibit criticism, which negatively impacts democracy.
Principle 10 of the Declaration of Principles on Freedom of Expression states: “[…] The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the 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.”
The Office of the Special Rapporteur observes that in Uruguay, the majority of penal proceedings against journalists do not end in the deprivation of journalists’ liberty, but they intimidate both the journalist who is charged and other journalists, who may self-censor in order to avoid similar legal actions. The Office of the Special Rapporteur emphasizes that journalists provide a service that is fundamental to democracy, and they have the right to carry out their work without fear of being subject to prison sentences as a result of it.
Due to the preceding considerations, the Office of the Special Rapporteur urges Uruguay to modify Articles 333 and 336 of the Penal Code and the corresponding related laws with the aim of eliminating penal sanctions with respect to offenses against honor or reputation resulting from the dissemination of information about matters of public interest. The protection of honor and reputation in such circumstances should be achieved through the right to rectification or reply and by means of proportionate civil sanctions, ordered in proceedings that take into account the parameters of Principle 10 of the Declaration of Principles on Freedom of Expression.
3. Access to information
The Office of the Special Rapporteur received information from civil society organizations, journalists, and communications media about refusal of public functionaries to provide information that is requested from them, a problem that is particularly prevalent in the interior of the country. The Office of the Special Rapporteur considers that the approval of a law on this subject would contribute decisively to advancing towards a solution to this problem and to improving the quality of democracy in Uruguay.
Access to information is a human right that forms a part of Article 13 of the American Convention on Human Rights, which guarantees the right to freedom of thought and expression. This was recognized by the Inter-American Court of Human Rights in its recent judgment in the case of Claude Reyes et al. In that judgment, the Court also reaffirmed the principle of maximum disclosure, which establishes a presumption that all information is accessible within a limited system of exceptions, and established the obligation of the states to provide information that is requested from them without requiring that a direct interest in the information be demonstrated.
The Legislative Branch has a bill on access to public information, entitled “Access to Public Information and Informational Constitutional Remedy” (“Acceso a la Información Pública y Amparo Informativo”), under its consideration. The Office of the Special Rapporteur urges the Legislative Power to give prompt consideration to this initiative, which would incorporate international standards on this subject matter into the national legislation.
4. Radioelectric spectrum and community radios
The current legislation in Uruguay lacks specific provisions on community broadcasting. The Office of the Special Rapporteur has stated that community radio stations, when they act within the framework of the law, “serve as outlets for expression that generally offer the poor better opportunities for access and participation[.]” (IACHR, Annual Report 2002, Volume II, Report of the Office of the Special Rapporteur for Freedom of Expression, Chapter IV, Freedom of Expression and Poverty, paragraph 39).
The information received by the Office of the Special Rapporteur during the visit indicates that in Uruguay, a significant number of radio stations are operating at the margins of the law, which causes interference in the spectrum, among other problems. The majority of these label themselves as “community radios” although they are not. At the same time, there are some radio stations in situations of illegality that are community in nature and that have legitimate aspirations to legalize their situations.
The Office of the Special Rapporteur considers it important for the State to provide legislative and administrative actions in relation to this situation. This includes adopting legislation that establishes open, public, and transparent contests for the assignment of broadcasting frequencies in the future.
Additionally, part of the spectrum should be designated for community radio stations, and the assignment of these frequencies must take into account democratic criteria that guarantee equality of opportunities for all individuals to access them, in conformity with Principle 12 of the Declaration of Principles on Freedom of Expression. In the legislation on this subject, it is essential to define appropriately the concept of community radio, taking into account at a minimum criteria including: a) its social purpose, of service to geographic or special-interest communities; b) its character as a not-for-profit entity; c) its operational and financial independence, not only from the state, but also from commercial enterprises.
Additionally, the Office of the Special Rapporteur considers it important that the legislation promulgated on this matter be strictly complied with at the administrative level and that it not permit as a consequence the functioning of illegal radio stations.
The Legislative Branch has under its consideration a bill entitled “Use of the Radioelectric Spectrum and Community Broadcast Media” (“Utilización del Espectro Radioeléctrico y Medios Comunitarios de Radiodifusión”), which incorporates international standards in this subject area. The Office of the Special Rapporteur urges its prompt consideration.
5. Monopoly in the distribution of newspapers and magazines in Montevideo
The Office of the Special Rapporteur received information during the visit about the existence of a monopoly in the distribution of newspapers and magazines in Montevideo, which limits freedom of the press in the capital of the country. This monopoly, exercised by one person, controls the wholesale distribution of almost all of the Uruguayan newspapers and magazines, as well as the importation and distribution of foreign publications. Communications media and journalists expressed their concern to the Office of the Special Rapporteur about the negative effect this monopoly has on the press and its readers. Among the information received, it highlights:
a) This monopoly collects 35 percent of the sale price of the newspapers and 38 percent of the sale price of the weeklies;
b) In addition to the percentage, the monopoly charges a so-called “toll” (“peaje”), which consists of the delivery without charge of a certain number of copies of the publication (currently 1080), regardless of the total number of copies printed. This, in addition to the percentage charge, contributes significantly to making newspapers and magazines in Uruguay among the most expensive in the region;
c) This monopoly has caused the closure of print media that have attempted to disregard it by using alternative means of distribution. For example, a journalist reported that when she attempted to distribute her magazine “Riesgo País” independently, this monopoly warned that it would not distribute foreign publications to kiosks that sold the magazine, leading to its extinction;
d) This monopoly refused to accept the decision of a newspaper to reduce its selling price significantly at a time of economic crisis in the country;
e) The Office of the Special Rapporteur was informed about the use of aggression, threats with firearms, and other violent actions as methods to impose and preserve this monopoly situation.
The Office of the Special Rapporteur urges the State to study the problem and search for solutions to this singular and worrisome situation.
Montevideo, December 16, 2006
For additional information about the Office of the Special Rapporteur: http://www.cidh.org/relatoria/