Freedom of expression and press: the case of America

Human rights are present in all areas of public life, therefore, it is important to be aware of them in order to exercise them with knowledge, in order to live in a culture of respect. One of them corresponds to freedom of expression, since it guarantees that people can express what they think through different means without fear of suffering some type of repression, which in turn allows the existence of the plurality of ideas, necessary always in the formation of public opinion. However, this freedom has been affected in various ways, such as attacks on journalists and the destruction of the media. In most cases, these actions are carried out with the objective of "eliminating journalists who investigate attacks, abuses, irregularities or illegal acts of any kind (...) it is done to ensure that the investigations do not end and never end." receive the public debate they deserve”[1].

In this way, the problem lies in two main senses: individually, the freedom of people to express their ideas or opinions regarding what happens in their environment is limited; on the other hand, collectively, it prevents the press fulfill its fundamental task of informing society[2] of existing problems, limiting the construction of a conscious and participatory public opinion.

The concept of free speech in America

Before trying to give a general concept regarding what freedom of expression refers to in America, one must consider the existence of each of the various social realities present in the continent together with their own legal systems. Under this reality, and from a more universal vision of the concept, it can be ensured that the right to freedom of expression, like any other fundamental right, is valid anywhere in the world, despite cultural diversity due to the simple fact that exist in terms of their dignity as human beings. An example of this is expressed in article 19 of the Universal Declaration of Human Rights, which mentions that "everyone has the right to freedom of opinion and expression (...) without limitation of borders, by any means of expression" [3].

However, legal trends in America can be classified into two main categories: the Anglo-Saxon system (Common Law) and the continental European system (Civil Law)[4].

Inherited in America as part of the concurrent processes of colonization, there is a clear predominance of common law in the Caribbean and in North America. On the other hand, there is a numerical superiority of the continental European system in the countries of Central and South America as a result of the legal tradition brought from Spain, France and Portugal[5].

The Anglo-Saxon system (from an overall view) shows some common features regarding its constitutional formulation of the right to freedom of expression, such as the addition (to the article concerning said right) of a clause that allows exceptions. In the case of the United States, for example, “the Supreme Court recognized that the government can prohibit any expression that disturbs the peace or provokes violence”[6]. In the case of Canada, in the Canadian Charter of Rights and Freedoms, it can be observed that said right, although constitutionally protected, is not absolute either. Thus, the Charter, specifically its section 1: Guarantee of Rights and Freedoms, mentions that the Charter "guarantees the rights and freedoms established therein, subject only to reasonable restrictions prescribed by law and whose justification can be demonstrated in a free and democratic”[7]. Based on the foregoing, "said section has been used to impose restrictions on obscenity and, more importantly, hate speech"[8].

For its part, the continental European legal tradition (as regards Latin America) highlights some common characteristics and trends in most countries in the region, such as:

• Guarantee both the right to freely express opinions and the right to receive information;
• Recognize the right not to previously censor said opinions or thoughts;
• The existence of restrictions on the exercise of freedom of expression, such as the right to honor, privacy, as well as the dignity and morals of people[9].

Finally, in the case of Cuba, this country is considered as an exception to the two aforementioned continental systems (both Anglo-Saxon and continental European). The foregoing derived from the conditions to the right imposed by the same Constitution, which, in its article 53 mentions the following:

Citizens are granted freedom of speech and press in accordance with the goals of socialist society. The material conditions for its exercise (...) are state or social property (...) which ensures its use at the exclusive service of the working people and the interest of society. The law regulates the exercise of these freedoms[10].

Based on the three previous legal families, and as mentioned at the beginning of this section, the distinctions respond to a large extent to the geographical, historical, and cultural diversity of the region as a whole. In the same way, it is recognized that it is precisely these distinctions and their particularities that exert a notable influence on this subject (enhancing the variety regarding the regulation of this right in the same continent). "You can find regulations that range from simple general provisions (...) to very specific and technical regulations, some of which establish detailed prohibitions or even defined crimes"[11].

According to data from the Chapultepec Index of Freedom of Expression and Press[12], during the period between May 2019 and April 2020, the American continent was classified as follows according to its level freedom of expression and press:

Source: Chapultepec Index, "Freedom of Expression and Press", Level of freedom of expression and press in the American continent: May 2019-April 2020.

According to the above data, there is a majority of low (green) and partial (yellow) restrictions regarding freedom of expression and the press in the countries of the American continent, which represents 36% and 41%, respectively, of all countries that understand it and in which are Argentina, Chile, Canada, among others, on the one hand, and Mexico, the United States, Colombia, among others, on the other.

Protection of Journalists, Human Rights Defenders and the Media

According to the Annual Report of the Inter-American Commission on Human Rights 2013: Volume II:

Journalists are those individuals who observe, describe, document, and analyze events, statements, policies, and any proposal that may affect society, with the purpose of systematizing that information and gathering facts, analysis, and opinions to inform sectors of society or this as a whole. Such a definition includes media workers and support staff, as well as community media workers, “citizen journalists,” and others who may be using the new media as an instrument to reach the public, as well as opinion makers who become a target for exercising their right to freedom of expression[13].

In this sense, some of the activities carried out by journalists and human rights defenders are commonly considered by some authorities, and even by certain individuals, as contrary to their interests, therefore, and as mentioned above, both journalists, individuals Human rights defenders and the media are the recurring object of various attacks and aggressions, with the intention of inhibiting or limiting freedom of expression. In the words of the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, "an attack against a journalist not only violates his right to divulge information but also harms the right of people and society in general to seek and receive information”[14].

Thus, the obligation that States have towards these vulnerable groups must be more effective, since "when such crimes go unpunished, this encourages the repetition of similar violent acts and can result in the silencing and self-censorship of the communicators”[15]. According to the International Standards of Freedom of Expression published by the Center for International Media Assistance, CIMA, the three obligations of any State with regard to the right to freedom of expression are the following:

1. Respect the right, or refrain from interfering in its enjoyment.
2. Protect, or exercise due diligence in order to prevent, punish, investigate and compensate the damage caused by private persons or entities.
3. Comply with the right, or take positive or proactive measures in order to make it effective[16].

Considering the above, some relevant data regarding the situation of journalists in recent times is presented below:

Source: UNESCO, “Protect journalists. Protect the truth”, Number of journalists killed worldwide 2006-2019.

Thanks to the previous graph, it is possible to visualize the constant fluctuations that occur between one year and another, so it seems difficult to give any speculation regarding what the number of total deaths will be at the end of this year, 2020, and beyond. even project the figures in the coming years. However, and if one wanted to give some potential reasons for the lower number of murders between the years 2018-2019, some of these could be the following: the “unprecedented global attention and mobilization after the murder cases of high-profile journalists and the journalists who practice self-censorship as a reaction to the generalized threats”[17] and made visible in recent years. These two reasons are nothing more than reactions to the reality that is currently being experienced and, despite this latest positive evolution (2018-2019), it cannot be said, even close to it, that journalism has ceased to be a dangerous profession.

Making a now more directed and specific reference to murders by journalists in the region (America) in the last year, the following table is shown:

Source: UNESCO, “Protect journalists. Protect the truth”, Number of journalists killed by region in 2019.

It is known, in advance, that the murders of journalists and human rights defenders occur in all regions of the world, however, the figures vary significantly from one region to another. So much so that the American continent for its study is divided into two: Latin America and the Caribbean on one side and North America on the other along with Western Europe. According to these data, in 2019, the largest number of fatal attacks occurred in Latin America and the Caribbean (23 murders), which represents 40% of all murders registered worldwide. They are followed by the Asia and the Pacific region with 26% (15 murders) and; being the third deadliest region, the Arab States with 18% (10 murders).

In turn, the same brochure published by UNESCO and entitled Protect journalists. Protect the truth, presents an effort to bring together in a table the countries where murders occurred in 2019 and the number of them, as shown below:

Source: UNESCO, “Protect journalists. Protect the truth”, Countries where murders occurred in 2019.

According to this last table, Mexico, the Syrian Arab Republic and Afghanistan are in the first three countries with the highest number of murders with 12, 6 and 5 units respectively. These data, taken to murders by region, make visible the existing region-country proportional relationship.

Finally, it concludes with a compilation regarding the status of the judicial investigations of the murders that were carried out in each of the regions in the period 2006-2019:

Source: UNESCO, “Protect journalists. Protect the truth”, State of the judicial investigation of the murders of journalists by region (2006-2019).

In the case of Latin America and the Caribbean, the total number of judicial investigation cases included in this period of time is 275 (24% of the total investigation cases: 1167), with only 61 cases resolved (22%) and 214 ongoing or unresolved (78%). For its part, the Western Europe and North America region had 32 total cases (3%), 14 resolved cases (44%), and 18 ongoing or unresolved cases (56%) in the same period of time.

Based on the foregoing and in accordance with the Inter-American Court of Human Rights, the investigation “must be undertaken seriously and not as a simple formality preordained to be unsuccessful. It must have a meaning and be assumed by the State as its own legal duty and not as a simple management of private interests”[18]. Perhaps in this way, the percentages and positive results in the American continent will be able to increase progressively in the coming years.

Journalism and COVID-19

“As the new coronavirus has reached almost every country on the planet, a massive circulation of false information has spread as fast as the virus itself”[19]. The World Health Organization (WHO) has even identified the above with a word: Infodemic, which refers to an "overabundance of information, some accurate and others not, that occurs during an epidemic. It can lead to confusion and ultimately mistrust in governments and the public health response”[20]. The above represents, on some occasions, a type of "second disease", where journalism is key to providing reliable information and contributing to misinformation, typical of each contingency. “The falsehoods that circulate can be classified into false information (produced and shared with malicious motivation) and misinformation (when these lies are spread without malicious intent)”[21]. Added to this problem are issues such as the volume of false information and/or its transmission by influential actors.

The media (whether traditional or digital) are currently not capable of making themselves seen by global society as 100% effective when providing reliable information. However, according to the global report Edelman Trust Barometer 2020[22], the technological future regarding access to information seems to decrease in terms of social trust, as shown in the following trends:

Source: Edelman, “Edelman Trust Barometer 2020”, Global Concern About Technology in 2020.

According to the previous slide, of 26 countries surveyed, 61% of the population believes that the pace of change in technology has gone too fast; while 66% agree on the concern caused by the fact that technology makes it impossible to know if what they hear or see is real; Finally, 61% agree that their government still fails to understand these technologies enough to regulate them efficiently and effectively. Finally, in the period between 2019-2020, global trust in technology decreased by 4 points, with the following countries registering the worst falls: France (-10); Canada, Italy, Russia and Singapore (-8); United States (-7); Australia (-6). It should be noted that two of the seven countries with the highest falls are in the American continent.

In this same sense, the global trend regarding the quality of the information that is currently consumed is the following:

Source: Edelman, “Edelman Trust Barometer 2020”, Global Concern About Data Quality in 2020.

According to the previous slide, 57% of the population believes that the media they consume are contaminated with unreliable and/or false information; while 76% show great concern that this information is used as a weapon, a concern that shows an upward trend from 2018 to the present year 2020 with a total of +6 points.

Undoubtedly, the current health crisis has highlighted the importance of the media and access to verified information. Professional journalism is a means to provide people with an alternative to misinformation, also helping to unmask the falsehoods, if not exclusive, then more common in digital media. "In this way, journalistic information becomes a product endowed with high social value, reversing the trend that, in recent times, showed its loss of relevance"[23]. However, it is not possible, at least currently, to deny the full establishment of a hybrid system, where both traditional and digital media coexist, creating a complementarity in the consumption of a large amount of information. This reality must progressively create more critical societies, which feel the need to verify the information they consume in order to consult and reproduce truthful information, since a well-informed society is a participatory, democratic, free society, where people can make decisions based on reliable information. In this sense, it is essential to protect freedom of expression and especially to protect journalists, who turn out to be protagonists in this process of informing society, contrasting opinions and creating a substrate of knowledge of the reality that surrounds us.