International Covenant on Civil and Political Rights,
Article 19:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
American Convention on Human Rights (Pact of San José)
Article 13:
1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
1)
respect for the rights or reputations of others; or
2)
the protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
5.Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.
No provision of this Convention shall be interpreted as:
1. permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;
Article 30:
The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.
Article 32:
2. The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.
Inter-American Court of Human Rights
Advisory Opinion OC-5/85 of November 13, 1985: Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of the American Convention on Human Rights):
Paragraph 39: “Abuse of freedom of information thus cannot be controlled by preventive measures but only through the subsequent imposition of sanctions on those who are guilty of the abuses. But even here, in order for the imposition of such liability to be valid under the Convention, the following requirements must be met:
a) the existence of previously established grounds for liability;
b) the express and precise definition of these grounds by law;
c) the legitimacy of the ends sought to be achieved;
d) a showing that these grounds of liability are “necessary to ensure” the aforementioned ends.”
Paragraph 67 (extract): “[...] the Court wishes to emphasize that “public order” or “general welfare” may under no circumstances be invoked as a means of denying a right guaranteed by the Convention or to impair or deprive it of its true content. These 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.”
Paragraph 69: “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 heard.”
Paragraph 85: “The compulsory licensing of journalists is incompatible with Article 13 of the American Convention on Human Rights if it denies any person access to the full use of the news media as a means of expressing opinions or imparting information.”
Interamerican Commission of Human Rights
Annual Report 1994, 81st session, February 17, 1995. Chapter V: Report on the Compatibility of "Desacato" Laws with the American Convention on Human Rights:
“...the Commission notes that the rationale behind desacato laws reverses the principle that a properly functioning democracy is indeed the greatest guarantee of public order. These laws pretend to preserve public order precisely by restricting a fundamental human right which is recognized internationally as a cornerstone upon which democratic society rests. Desacato laws, when applied, have a direct impact on the open and rigorous debate about public policy that Article 13 guarantees and which is essential to the existence of a democratic society. In this respect, invoking the concept of "public order" to justify desacato laws directly inverts the logic underlying the guarantee of freedom of expression and thought guaranteed in the Convention.”
“The Commission considers that the State's obligation to protect the rights of others is served by providing statutory protection against intentional infringement on honor and reputation through civil actions and by implementing laws that guarantee the right of reply. In this sense, the State guarantees protection of all individual's privacy without abusing its coercive powers to repress individual freedom to form opinions and express them.
In conclusion, the Commission finds that the State's use of its coercive powers to restrict speech lends itself to abuse as a means to silence unpopular ideas and opinions, thereby repressing the debate that is critical to the effective functioning of democratic institutions. Laws that criminalize speech which does not incite lawless violence are incompatible with freedom of expression and thought guaranteed in Article 13, and with the fundamental purpose of theAmerican Convention of allowing and protecting the pluralistic, democratic way of life.”