Freedom of Expression
Press Release 24/00
PRELIMINARY EVALUATION OF FREEDOM OF EXPRESSION IN GUATEMALA
1. Freedom of expression in the hemisphere is one of the main concerns of the Inter-American Commission on Human Rights (IACHR). For that reason, and in response to multiple requests from different civil society organizations in the Americas and their representatives, the IACHR created, in accordance with its powers and competence, the Office of the Special Rapporteur for Freedom of Expression. The Office of the Special Rapporteur is a permanent office that operates independently and has its own budget within the legal framework of the Inter-American Commission on Human Rights. The Office of the Special Rapporteur for Freedom of Expression has the backing of the heads of state and government of the hemisphere, who, at the Second Summit of the Americas held in Chile in April 1998, publicly declared their concern for the status of freedom of expression in their countries and commended the appointment of the Rapporteur
2. The purposes of the Office of the Rapporteur are, inter alia, to raise public awareness of the importance of freedom of expression throughout the hemisphere, bearing in mind the fundamental role it plays in the development and consolidation of democracy, and in denouncing and providing protection against violations of other human rights; and to make specific recommendations to member states regarding freedom of expression so that they can better take measures to support it.
3. Freedom of expression plays a fundamental role in the development and consolidation of democracy, since It is indispensable for the formation of public opinion. In this regard, the Inter-American Court of Human Rights has held that freedom of expression is a condition "sine qua non for the development of political parties, trade unions, scientific and cultural associations and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free."
4. Freedom of expression includes the right of everyone to seek, receive, and impart information and ideas of all kinds. In that sense, it has a dual dimension: on the one hand, it requires that no one be arbitrarily limited or impeded in expressing his own thoughts; and on the other, it implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others.
NATURE AND PURPOSE OF THE VISIT
5. Dr. Santiago A. Canton, Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, today concluded a four-day visit to Guatemala, undertaken at the invitation of President Alfonso Portillo Cabrera and in response to subsequent requests and overtures from various sectors of Guatemalan society.
6. Over the last four days the Special Rapporteur has pursued a busy schedule of activities and meetings, inter alia, with Guatemalan government officials, the Office of the Attorney for Human Rights, directors of mass media, journalists’ unions, associations of both mass media proprietors and employees, independent journalists, academic institutions, representatives of indigenous people’s organizations, human rights organizations, and other civil society institutions, as well as representatives of international missions and agencies, in order to get a grasp of, assemble information on, and analyze the status of freedom of expression in Guatemala.
7. The Special Rapporteur would like to thank the President of the Republic and the Guatemalan authorities for their willingness to permit him to carry our his task, for their desire to cooperate in the search for solutions to the problems raised, and for their readiness to heed the specific recommendations made in the course of his visit. Furthermore, the Special Rapporteur wishes to express his gratitude to the representatives of civil society, the mass media and, in particular, the journalists of Guatemala for the important information with which they furnished him during this visit.
8. The Office of the Rapporteur takes this opportunity to congratulate the government of Guatemala on its willingness to use the friendly settlement mechanism to resolve a significant number of petitions alleging human rights violations that are currently before the Inter-American Commission on Human Rights. This initiative is an example to the other countries of the Hemisphere and represents a great stride forward in the protection and promotion of human rights.
GENERAL OBSERVATIONS
9. The information gathered will be processed in due course and a report issued by the Office of the Rapporteur in the near future detailing its activities during this visit and the findings thereof.
10. Without prejudice to the foregoing, the Special Rapporteur wishes to state the following preliminary conclusions, observations, and recommendations that emerge from this visit:
11. The President of the Republic has clearly expressed his wish to promote broad and robust freedom of expression in Guatemala and to cooperate to the extent necessary with the Office of the Rapporteur for Freedom of Expression to that end. The Office of the Rapporteur commends President Alfonso Portillo Cabrera for his support and readiness to cooperate with it and to seek mechanisms to ensure broad freedom of expression in Guatemala.
12. The Office of the Rapporteur acknowledges that the consolidation of democracy in Guatemala has contributed to substantial progress in freedom of expression. In particular, the Office of the Rapporteur recognizes the importance of the mass media in buoying up the country’s democracy during the institutional crisis of 1993. Furthermore, the Office of the Rapporteur noted an improvement in relations between the President and the mass media compared to administrations of the past. In the past the Office of the Rapporteur received complaints regarding a hostile attitude toward the press on the part of the government. The Office of the Rapporteur commends the good will of the current government, since fluid and mature communication between high-ranking government officials and journalists is one of the main guarantees of a broad freedom of expression based on the transparency of government actions, a key ingredient in any democracy. The Office of the Rapporteur hopes that the President’s current positive attitude to support and broaden the right of freedom of expression of Guatemalans continues throughout his mandate.
13. During his stay, the Rapporteur noted an ample debate of ideas and opinions, especially in the written press and on the radio. Only through broad access to information and unrestricted debate in all the mass media will it be possible to continue consolidating the country’s democracy. However, the Rapporteur also received information about cases and situations regarding restrictions imposed on freedom of expression, which give the Office of the Rapporteur cause for concern and must be seriously investigated by the authorities.
14. Concern was expressed from several quarters about possible conflicts of interest between the certain media executives and government officials. According to several persons interviewed, this practice has been going on for a number of years.
15. In respect of this point, the Office of the Rapporteur mentions the need to have clear and precise rules that define the mechanisms of association between government officials and the mass media. Lack of transparency and clarity, and conflicts of interest between government officials and businessmen may limit freedom of expression in the eventuality that government officials and businessmen try to influence the content of radio and television programs or of the written press, with the aim of harming or favoring political leaders, government officials or other persons, in return for direct or indirect benefits for some companies.
16. Public officials must refrain from directly or indirectly influencing the decisions of the media executives. For instance, the Office of the Rapporteur has had occasion to make a statement about the limitation caused to freedom of expression in the hemisphere by the use of public funds to favor or harm certain mass media, or by granting concessions for commercial use of radio or television stations in exchange for manipulating information in the authorities’ favor. The Office of the Rapporteur also received information about the practice of putting pressure on businessmen to reduce advertising in order to harm the mass media. Specific mention was repeatedly made of the case of the magazine Crónica, which saw its advertising revenue dwindle sharply. Eventually Crónica was sold and its content changed to reflect a stance that was markedly less critical of the previous administration. These practices run contrary to Article 13 of the American Convention on Human Rights and lead to the responsibility of the State.
17. In this context, the closing down of the television program T-Mas de Noche, the only program critical of the government in the what may be a de facto monopoly of open-signal television stations, coupled with reports of possible conflicts of interest between government officials and media executives, creates a situation that is not propitious for the full development of freedom of expression. President Alfonso Portillo Cabrera expressed his will to seek mechanisms to solve these problems. The public offer of an opening on a State television channel is a demonstration of the President’s good will. However, the Office of the Rapporteur considers that institutional mechanisms must be sought, which make it possible to avoid the recurrence of such problems in the future, and where such does not depend on the good will of a government official.
18. Of greatest concern to the Office of the Rapporteur is the information it received at nearly all its meetings about the existence of a de facto monopoly of the open-signal television channels, 3, 7, 11, and 13, which appears seriously to be affecting the freedom of expression and of information of all Guatemalans.
19. According to the information received, the way that the ownership of the mass media, particularly radio and television, is currently structured stems from a set of laws and practices that have been in force for the past two decades.
20. In relation to this subject, the Office of the Rapporteur wishes to say that the existence of monopolistic practices in the mass media, whether in television, radio, or the written press, is not compatible with the free exercise of the right to freedom of expression in a democratic society. It is the duty of the states to ensure equal opportunity of access to radio and television frequency concessions. In connection with the point, the Inter-American Court has held that, "It is the mass media that make the exercise of freedom of expression a reality. This means that the conditions of its use must conform to the requirements of this freedom, with the result that there must be, inter alia, a plurality of means of communication, the barring of all monopolies thereof, in whatever form, and guarantees for the protection of the freedom and independence of journalists."
21. The Court also stated that, "given the broad scope of the language of the Convention, freedom of expression can also be affected without the direct intervention of the State. This might be the case, for example, when due to the existence of monopolies or oligopolies in the ownership of communications media, there are established in practice ‘means tending to impede the communication and circulation of ideas and opinions.’"
22. This obligation of the State is even clearer in the current circumstances of consolidation of democracy and implementation of the Peace Agreements in Guatemala. Those agreements cast this country as a multi-ethnic, multicultural, and multilingual nation, and foster the inclusion and participation of such large, traditionally vulnerable and excluded population groups as indigenous peoples, peasants, women, and young people. Therefore, it is highly recommended that criteria and regulations governing access to and participation in, not only concessions, but also use, of the media promoted by the State, take into account, inter alia, these particular characteristics of Guatemala.
23. The Special Rapporteur has recommended that President Alfonso Portillo Cabrera’s government review current legislation and practices relating to radio and television concessions, and submit bills to the Congress designed to correct the monopolistic practices that affect the right of freedom expression as occurs at present.
24. Another leading concern mentioned by independent journalists and representatives of civil society organizations is the use of some media as instruments to defend personal or economic interests, without regard for the truth and to the detriment of the right to information of the Guatemalan people. On this point, and in light of the seriousness with which these accusations deserve to be addressed, the Office of the Rapporteur would remind all those persons connected with the mass media that their credibility hinges on their commitment to the truth, impartiality, and equity. When economic or personal interests unduly influence information, the whole of society is harmed and the consolidation of democracy endangered.
25. The Office of the Rapporteur wishes to state that the award of radio and television concessions must take into consideration democratic criteria that ensure equal opportunity of access for all sectors of Guatemalan society to those concessions. Public licitations that only take account of economic criteria, or that grant concessions without providing all sectors with an equal opportunity, are incompatible with participatory democracy and with the right to freedom of expression and information guaranteed in the American Convention on Human Rights.
26. In relation to this aspect, the Office of the Rapporteur would remind the authorities of the obligation to comply with the Peace Agreements, in particular as regards the Agreement on the Identity and Rights of Indigenous Peoples. The measures that the government is required to adopt under those agreements include to:
a. Create opportunities in the official media for the dissemination of expressions of indigenous culture and promote a similar opening in the private media;
b. Promote, in the Guatemalan Congress, the reforms of the existing Act on radio communications that are required in order to make frequencies available for indigenous projects and to ensure respect for the principle of non-discrimination in the use of the communications media. Furthermore, promote the abolition of any provision in the national legislation which is an obstacle to the right of indigenous peoples to have their own communications media for the development of their identity; and
c. Regulate and support a system of informational, scientific, artistic and educational programmes on indigenous cultures in their languages, through the national radio, television and the written media.
27. According to the information received, these reforms have yet to be instituted. Noncompliance with this provision seriously impairs freedom of expression. The Office of the Rapporteur recommends to the Government of Guatemala that it consider suspending the award of broadcasting concessions until the pertinent provisions contained in the Peace Agreements are suitably complied with.
28. President Alfonso Portillo Cabrera told the Office of the Rapporteur of his intention to present bills to the Congress for ensuring effective observance of the right of access to information and habeas data. The Office of the Rapporteur hails this initiative since the right of access to information and habeas data are crucial aspects both for strengthening a democratic society and for ensuring broad freedom of expression and information.
29. On this point, the Office of the Rapporteur would like to say the following:
30. The right of access to information in the power of the State is one of the pillars of representative democracy. In a representative system, government officials are responsible to the citizenry that entrusted them with their political representation and the power to decide on public matters. The legal owner of the information is the individual who delegated management of public affairs to the representatives. Furthermore, the information that the State uses and produces is obtained with funds that come from the taxes that the citizens pay.
31. Having procedures that ensure access to information in the power of the State contributes to the control of State administration and is one of the most effective mechanisms for combating corruption. Lack of effective control "implies an activity at odds with the very essence of the democratic state and opens the way for unacceptable transgressions and abuses." Ensuring access to information in the power of the State helps to enhance the transparency of government acts and, consequently, to reduce corruption in the state's administration.
32. It is also important to underscore that, in spite of the fact that access to information in the power of the state is a fundamental right of the individual, its exercise is not without limits. Thus, Article 13.2 of the American Convention provides certain restrictions. The general principle of openness of information in the power of the State admits limitations when an interest exists that determines the necessity to reserve information. Such restrictions are limited and must be expressly provided for by law.
33. One important aspect of the right to information is the action of habeas data. By means of this procedure all persons have the right to access information contained in databases or public and private records offices on themselves or on their assets, and, assuming it were necessary, to update or rectify that information. This action acquires even greater importance with the advances being made in new technologies. With the increasing use of computers and the Internet, both the State and the private sector have rapid access to a large quantity of information on people. At the same time, the volume and speed of communications make it more important for there to be concrete channels that provide rapid access to information in order to amend incorrect or out-of-date information contained in an electronic databases.
34. Apart from recognition of the right of access to information and of habeas data, it is essential to have available a rapid and effective procedure so that this right can be exercised to the full. Administrative obstacles, which, in many states, obstruct access to information must be eliminated, and user-friendly, simple, and inexpensive information request systems implemented, otherwise, one would merely be formally recognizing an action which, in practice, did not help to facilitate access to information.
35. Within this provisional analysis of freedom of expression in Guatemala, the Office of the Rapporteur cannot neglect to mention that the poverty and social exclusion in which broad sectors of the population live affect freedom of expression, inasmuch as their voices are ignored, they have difficulty making themselves heard in the broad debate of ideas and opinions, and they have limited access to the information needed in order to achieve equitable development for themselves within a democratic society.
36. By the same token, discrimination against women and indigenous peoples threatens freedom of expression; their exclusion from public debate prevents society from hearing large segments of the population. The freedom of expression of individuals finds in the mass media and in active participation in government a mechanism for ensuring that an opportunity is provided to facilitate the search for solutions, within a democratic framework, to the profound inequality in which many sectors of the population live.
37. The Office of the Rapporteur also wishes to mention to media executives the importance of looking at policies for improving working conditions for journalists. They are the first and most important link in the communications chain. Inadequate working conditions are a hindrance for carrying out their duties, which has negative repercussions on the right to freedom of expression and information of all Guatemalan citizens. In particular, the Office of the Rapporteur would like to mention the constitutional duty to provide journalists with life insurance. Finally, the Office of the Rapporteur, in the spirit of cooperation that the authorities have expressed, wishes to make the following preliminary recommendations:
1. To conduct a thorough investigation of the possible existence of a de facto monopoly of open-signal television channels, and to implement mechanisms that provide for greater plurality in granting concessions therefor.
2. To introduce clear rules for avoiding conflicts of interest between government officials and the mass media.
3. To consider suspension of public licitations for broadcasting frequencies until the Agreement on the Identity and Rights of Indigenous Peoples has been implemented (H. Mass Media)
4. To revise the guidelines on television and radio broadcasting concessions in order to incorporate democratic criteria that ensure equal opportunity of access to them.
5. To ensure that the proposed laws on access to information and habeas data that the President undertook to put forward take account of the recommendations and suggestions of civil society.
6. To carry out campaigns to promote and provide training on the right to freedom of expression.
38. The Rapporteur for Freedom of Expression will continue to observe and report on the status of freedom of expression in the Guatemala, and will cooperate in the search for mechanisms to promote full observance of that right in accordance with international standards.
Santiago A. Canton
Special Rapporteur for Freedom Of Expression
Washington, D.C., April 18, 2000