Content Regulation / Censorship, Licensing / Media Regulation, Commercial Speech
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The government of Costa Rica requested an advisory opinion from the Inter-American Court of Human Rights on the interpretation of Article 13 (freedom of thought and expression) of the American Convention on Human Rights (ACHR), in relation to the compulsory membership to a journalism association. The government also asked whether a Costa Rican law that requires compulsory membership in the association of journalists as a necessary requirement for practicing journalism clashes with the treaty provisions on the subject. The Inter-American Court, to resolve the question, concluded that compulsory membership in a journalism association is incompatible with Article 13 of the ACHR to the extent that it restricts full access to the media as a vehicle for exercising freedom of expression. Therefore, it determined that the relevant Costa Rican regulation was incompatible with the Convention.
In 1969 Costa Rica issued the Organic Law of the Association of Journalists (Law 4420). In the year 1985, the government of Costa Rica requested an advisory opinion from the Inter-American Court of Human Rights on the interpretation of Article 13 –freedom of thought and expression– of the American Convention on Human Rights (ACHR), in relation to mandatory membership in the association of journalists as a requirement for practicing journalism, or, in other words, the compulsory licensing of journalists. The government also inquired whether the Organic Law of the Association of Journalists contradicted the pertinent treaty provisions.
Below are the pertinent articles of law 4420:
“Article 2. -The Association of Journalists of Costa Rica shall be composed of the following:
Article 22.-The functions of a journalist can only be carried out by duly registered members of the Association.
Article 23.-For purposes of this law, the phrase “practicing professional journalist” shall be understood to mean the person whose principal, regular or paid occupation it is to practice his profession in a daily or periodic publication, or in radio or television news media, or in a news agency, and for whom such work represents his or her principal source of income.
Article 25.-Columnists and permanent or occasional commentators in all types of news media may, whether or not they receive pay, freely carry out their activities without being obliged to belong to the Association, however, their scope of activities shall be restricted to that specific area and they shall not be permitted to work as specialized or non-specialized reporters”.
In its Advisory Opinion, the Inter-American Court concluded that compulsory licensing of journalists is incompatible with Article 13 of the ACHR, to the extent that it restricts full access to the media as a vehicle for exercising freedom of expression. Therefore, the Court declared that the Costa Rican regulation under review was incompatible with the American Convention.
The Inter-American Court of Human Rights (IA Court HR) had to decide whether the compulsory licensing of journalists is a restriction on freedom of legitimate expression in accordance with the provisions of the American Convention on Human Rights, Article 13.
The Inter-American Court recalled that Article 13 of the American Convention on Human Rights (ACHR) states that freedom of expression includes a person’s right to express their thoughts as well as the right to seek, receive and impart all types of information and ideas. In this regard, the Court asserted that any restriction on a person’s freedom of expression also restricts society’s right to receive ideas and information. Thus, the Court explained that freedom of expression has two dimensions and requires, “on the one hand, that no one 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.” [para. 30]. The Court indicated these two dimensions are equally important and should be guaranteed simultaneously.
The Court noted the individual right to freedom of expression inherently includes the right to use any means or mechanism to disseminate expressions. It emphasized the fact that ACHR establishes the expression and dissemination of ideas are indivisible and, consequently, a restriction on the dissemination of ideas and thoughts directly represents, and at the same time, limits the right to express oneself freely. For the Court, freedom of expression, in its social dimension, is a mechanism to exchange information and thoughts and for people to communicate en masse.
The Court indicated that freedom of expression requires that no person or group of persons be previously excluded from access to the media. Likewise, this right demands certain requirements from media outlets so that “in practice, [they are] true instruments of that freedom and not vehicles for its restriction” [para. 34].
The Court declared that freedom of expression is not an absolute right, for Article 13.2 of the ACHR establishes the criteria to determine the legitimacy of a restriction on this right. Therefore, “as the right to express and to disseminate ideas is indivisible as a concept, so too must it be recognized that the only restrictions that may be placed on the mass media are those that apply to freedom of expression. It results therefrom that in determining the legitimacy of restrictions and, hence, in judging whether the Convention has been violated, it is necessary in each case to decide whether the terms of Article 13 (2) have been respected.” [para. 36].
Under the Convention, legitimate restrictions must be previously provided for by law. Further, the limitation’s legal definition must be explicit and restrictive (that is, limited). Furthermore, the restrictions must be “necessary to ensure” the goal stipulated in the Convention. The Court, after a comparative analysis of Article 10 of the European Convention on Human Rights, article 19 of the International Covenant on Civil and Political Rights and article 13 of the ACHR, concluded that in the Inter-American system “the restrictions authorized on freedom of expression must be “necessary to ensure” certain legitimate goals, that is to say, it is not enough that the restriction be useful […] to achieve a goal, that is, that it can be achieved through it. Rather, it must be necessary, which means that it must be shown that it cannot reasonably be achieved through a means less restrictive of a right protected by the Convention” [para. 79].
The Court also indicated that the provisions contained in article 13.2 of the American Convention should be interpreted in accordance with article 13.3 of the same instrument, which explicitly prohibits restrictions on freedom of expression through “indirect methods and means […] ending to impede the communication and circulation of ideas and opinions”. For the Court, this provision seeks to “ensure that the language of Article 13 (2) not be misinterpreted in a way that would limit, except to the extent strictly necessary, the full scope of the right to freedom of expression” [para. 47]. Article 13.3 of the American Convention refers not only to indirect governmental restrictions, but also expressly prohibits “private controls” that might have the same effect. In this sense, a restriction on freedom of expression that is contrary to the Convention can originate both from restrictions imposed by the State, that indirectly blocks the exercise of this right, and the failure of the State to ensure that controls exercised by private parties do not have the indirect consequence of restricting freedom of expression [para. 48].
Regarding the specific analysis of compulsory licensing for journalists, the Court considered it restricts the capacity of non-associated journalists to express themselves freely. The Court then proceeded to examine whether the restriction sought a legitimate purpose in accordance with the Convention .
In this regard, it indicated the State declared, “compulsory licensing is the normal way to organize the practice of the professions in the different countries” [para. 60]. Additionally, the State declared that compulsory licensing “seeks to achieve goals linked with professional ethics and responsibility” [pars. 61]. Finally, the Association of Journalists of Costa Rica stated that association “is a means of guaranteeing the independence of journalists in relation to their employers” [para. 62]. For the Court these arguments are directed at “seek[ing] to justify compulsory licensing as a way to ensure public order (Art. 13(2)b)) as a just demand of the general welfare in a democratic society (Art. 32(2))” [para. 63].
For the Court, the application of article 32.2 of the ACHR, which allows limiting rights in order to safeguard the “general welfare” does not apply in the same manner to all rights. The Court explained this provision applies when the Convention has not specifically stipulated a legitimate way for establishing restrictions on a specific right (as opposed to freedom of expression, where the ACHR does establish requirements).
The Court stressed the difficulty of defining the concepts of “public order” and “general welfare.” It highlighted that these concepts cannot be invoked “as a means of denying”, impairing or “depriv[ing] it of its true content” a right protected under the Convention. For the Court, “[t]hose concepts, when they are invoked as a ground for limiting human rights, must be subjected to an interpretation that is strictly limited to the “just demands” of “a democratic society,” which takes account of the need to balance the competing interests involved and the need to preserve the object and purpose of the Convention” [para. 67].
The Court considered that professional associations per se are not contrary to the American Convention. It set forth that if the public order is understood “as the conditions that assure the normal and harmonious functioning of the institutions on the basis of a coherent system of values and principles, it is possible to conclude that the organization of the practice of professions is included in that order” [para. 68]. However, it clarified the public order “requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole. 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” [para. 69].
In this sense the Court stated that “[f]reedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies 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” [para. 70].
Hence, it reached the conclusion that “journalism is the primary and principal manifestation of freedom of expression of thought. For that reason, because it is linked with freedom of expression, which is an inherent right of each individual, journalism cannot be equated to a profession that is merely granting a service to the public through the application of some knowledge or training acquired in a university or through those who are enrolled in a certain professional ‘colegio’” [para. 71]. For the Court, practicing journalism implies carrying out activities that are comprehended in freedom of expression.
The Court concluded the public order reasons that justify compulsory association or licensing for other activities cannot be invoked in the case of journalism. Regarding this specific activity, association as a requirement to practice journalism implies a permanent restriction on the non-associated that blocks them from fully exercising their freedom of expression.
The Court considered that, although it is necessary to protect and guarantee the freedom of journalists, compulsory licensing is a not a necessary measure to achieve this end. For the Court, “the establishment of a law that protects the freedom and independence of anyone who practices journalism is perfectly conceivable without the necessity of restricting that practice only to a limited group of the community” [para. 79].
In conclusion, for the Court, the compulsory licensing of journalists is incompatible with article 13 of the American Convention because it restricts full access to the media as a vehicle for exercising freedom of expression. Therefore, it decided that the Costa Rican regulation in this area was incompatible with the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this advisory opinion the Inter-American Court of Human Rights explained, for the first time, the scope of Article 13 of the American Convention on Human Rights.
The Court brought to the fore the close connection between freedom of expression and democracy, and explained the fundamental importance of this right for the existence of true deliberation and an informed public opinion. It also stressed the importance of journalism and recognized it as a specially protected manifestation of freedom of expression.
The Court also stated that the right to freedom of expression has two dimensions: individual and collective. It declared the individual and collective dimension are equally important and must be guaranteed simultaneously. Additionally, it specified that any limitation on individual freedom of expression implies a restriction on the right of society to receive ideas and information.
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Case significance refers to how influential the case is and how its significance changes over time.
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