Amicus Curiae presentado por Sociedad Interamericana de Prensa y otros
IN THE INTER AMERICAN
COURT OF HUMAN RIGHTS
REQUEST FOR AN ADVISORY OPINION PRESENTED BY THE GOVERNMENT OF COSTA RICA
Brief of Inter American Press Association,
World Press Freedom Committee,
American Newspaper Publishers Association,
Federation Internationale des Editeurs de Journaux,
The Copley Press, Inc.,
The Miami Herald,
Newsweek,
USA Today,
The Wall Street Journal,
and
The International Herald Tribune
as
Amici Curiae
Leonard H. Marks
Richard M. Schmidt, Jr.
J. Brian DeBoice
Cohn and Marks
1333 New Hampshire Avenue, N. W.
Washington, D.C. 20036
(202) 293-3860
Counsel for Amici Curiae
Of Counsel:
W. Terry Maguire
Vice President/General Counsel
American Newspaper Publishers
Association
Box 17047, Dulles Airport
Washington, D.C. 20041
(703) 648-1060
(Additional Counsel listed
in Appendix)
April 4, 1986
TABLE OF
CONTENTS
TABLE OF AUTHORITIES
INTEREST OF AMICI CURIAE
STATEMENT OF FACTS
QUESTIONS PRESENTED
SUMMARY OF ARGUMENT
ARGUMENT
I. The Provisions of Article 14(1)
Are Not Self-Executing
II. States Parties to the Convention
Have No Obligation to Enact Laws
Creating a "Right of Reply" in
Their Jurisdictions
CONCLUSION
TABLE OF AUTHORITIES
Treaties
American Convention on Human Rights
American Declaration of the Rights and Duties of Man
Convention for the Protection of Human Rights and Fundamental Freedoms
International Covenant on Civil and Political Rights
Universal Declaration of Human Rights
Constitutions
Constitution of Costa Rica, Art. 7
Cases
Advisory Opinion OC-5/85 of November 13, 1985 (Inter American Court of Human Rights)
IN THE INTER AMERICAN COURT OF HUMAN RIGHTS
REQUEST FOR AN ADVISORY OPINION PRESENTED BY THE GOVERNMENT OF COSTA RICA
Brief of
Inter American Press Association,
World Press Freedom Committee,
American Newspaper Publishers Association,
Federation Internationale des Editeurs de Journaux,
The Copley Press, Inc.,
The Miami Herald,
Newsweek,
USA Today,
The Wall Street Journal,
and
The International Herald Tribune
as
Amici Curiae
INTEREST OF AMICI CURIAE
The Inter American Press Association ("IAPA") is a non-profit organization
of Western Hemisphere Publications devoted to the promotion and protection
of Freedom of the Press and the peoples' right to know in the New World. Founded
in 1943, the IAPA lists as members more than 1,200 newspapers from 34 countries
of the Americas. The IAPA's objectives are, in brief: to guard freedom of
the press; to foster and protect the general and specific interests of the
daily and periodical press of the Americas; to promote and maintain the dignity,
rights and responsibilities of journalism; to encourage uniform standards
of professional and business conduct; to exchange ideas and information which
contribute to the cultural, material, and technical development of the press;
and to foster a wider knowledge and greater interchange among the peoples
of the Americas support of the basic principles of a free society and individual
liberty.
The World Press Freedom Committee, founded in 1976, represents 32 journalistic
organizations on five continents. It works to maintain the free flow of news
and opposes those who advocate state-controlled media, restrictions on journalistic
and editorial freedom, and all other impediments to a vigorous and free international
press.
The American Newspaper Publishers Association, founded in 1887, is a non-profit
business trade association representing 1,379 member newspapers accounting
for more than 90% of the daily and Sunday newspaper circulation in the United
States and more than 85% of Canadian daily circulation. Outside the U.S. and
Canada, ANPA has member newspapers in Argentina, the Bahamas, Bermuda, Brazil,
the Virgin Islands, and the West Indies. ANPA member newspapers provide news
and information to more than 135 million readers. ANPA works to advance the
cause of a free press on behalf of its member newspapers.
The Federation Internationale des Editeurs de Journaux ("FIEJ")
is an international organization of newspaper publishers dedicated to defending
press freedom, to safeguarding the ethical and economic interest of newspapers,
and to studying all question of interest to newspapers the solutions to which
can be found, in whole or in part, at the international level.
The Copley Press, Inc., The Miami Herald, Newsweek, USA Today, The Wall Street
Journal, and The International Herald Tribune are publications and publishers
of major newspapers and periodicals with circulation in the United States
and throughout the Americas.
STATEMENT OF FACTS
The case before the Court is a request for an advisory opinion by the Government
of Costa Rica pursuant to Article 64 of the American Convention on Human Rights
("the Convention"). the request concerns whether the provisions
of Article 14(1) of the Convention concerning a "right of reply"
are automatically incorporated into the law of Costa Rica by virtue of Article
1 of the Convention and Article 7 of the Constitution of Costa Rica. If the
Article 14 "right of reply" is not automatically incorporated into
the law of Costa Rica, the request further inquires whether Costa Rica has
the duty to adopt, pursuant to Article 2 of the Convention, such laws as may
be necessary to give effect to an Article 14 "right of reply" and,
if so, whether such laws may be of a "reglamentary nature issued by executive
decree".
In its October 1, 1985 letter requesting an advisory opinion, the Government
of Costa Rica states that it is in doubt as to whether persons in Costa Rica
now possess the Article 14 "right of reply" or whether the right
becomes available only when a formal law is issued by the Costa Rican Government
establishing the conditions for specific exercise of the right. The Government
of Costa Rica notes that Article 7 of the Constitution of Costa Rica provides
as follow:
Article 7. Public treaties, international agreements and concordants duly
approved by the Legislative Assembly shall have a higher authority than the
laws from their promulgation or from the day that they designate.
Thus, the Government of Costa Rica propounds a thesis that, under the provisions
of Article 7 of the Constitution of Costa Rica, the civil and political rights
set forth in the Convention were automatically incorporated into Costa Rican
law when Costa Rica ratified the Convention by Legislative Decree No. 4534
on February 23, 1970.
The Government of Costa Rica propounds a second thesis, however, which is
that the provisions of Article 14 of the Convention are not self-executing
and therefore would require the promulgation of a formal domestic law to create
and define the scope of an Article 14 "right of reply".
QUESTION PRESENTED
1. Should the right set out in Article 14 of the American Convention on Human
Rights be considered as already guaranteed in its free and full exercise for
all persons under the jurisdiction of the Costa Rican State, according to
what results from the obligations imposed on Costa Rica by Article 1 of the
Convention?
2. If that is not the case, does the Costa Rican State have the juridical-international
duty to adopt, through its constitutional procedures, the legislative or other
measures as may be necessary to give effect to the right of reply guaranteed
by Article 14 of the Convention, pursuant to the provisions of Article 2 of
the American Convention on Human Rights?
3. If it is decided that the Costa Rican State has the duty to adopt the legislative
or other measures as may be necessary to give effect to the right of reply
guaranteed by Article 14 of the American Convention, should it then be understood
that the expression "law" which is included at the end of the first
paragraph of Article 14 is employed in a broad sense, which might then include
provisions of a reglamentary nature issued by executive decree, keeping in
mind the rather instrumental nature of such legal provisions?
SUMMARY OF ARGUMENT
The express provisions of Article 14(1) of the Convention and their context
within the Convention framework indicate that Article 14(1) is not self-executing.
The promulgation of formal domestic laws by the States Parties to the Convention
would be necessary both to create an Article 14 "right of reply"
and to define and restrict the scope of the right. Article 14 permits but
does not command enactment of laws by States Parties to provide for a "right
of reply". In addition, Article 14 requires that no "right of reply"
be applied to communications media which are not "legally regulated".
Article 14 thus requires that the print media not be subjected to a "right
of reply".
ARGUMENT
I. The Provisions of Article 14(1) Are not Self-Executing.
Article 14(1) provides:
Anyone injured by inaccurate or offensive statements or ideas disseminated
to the public in general by a legally regulated medium of communication has
the right to reply or to make a correction using the same communications outlet,
under such conditions as the law may establish.
By its terms, this provision is permissive in nature; it provides for a "right
of reply" only "under such conditions as the law may establish".
The provision thus reflects that the States Parties may, under certain conditions,
create and define by law a "right of reply", but that States Parties
do not automatically create or recognize such a right simply by ratifying
the Convention. This view is confirmed by comparing Article 14(1) with other
provisions of the Convention which variously describe in absolute, in mandatory
and in permissive terms the existence of rights and interests and the establishment
of laws by States Parties.
Provisions of the Convention which recognize fundamental rights are stated
in absolute terms. Thus, Article 13(1) guarantees that,
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 form of art, or through
any other medium of one's choice.
This absolute, unqualified provision declares the existence and authority
of the right to freedom of thought and expression, without regard to the vicissitudes
of local laws of States Parties. Thus, this fundamental right may be conceived
of as "self-executing" in the sense that it is acknowledged to exist
independently of recognition by the local laws of States Parties.
Under Article 13(1), States Parties recognize that all persons possess the
right to freedom of thought and expression, because this right, like the other
fundamental rights set forth in the Convention, is based on universal "attributes
of the human personality", not on the circumstance of "one's being
a national of a certain state". American Convention on Human Rights,
Preamble; see also id. Art. 29(c) (the Convention must be interpreted as consistent
with all rights "inherent in the human personality"). Numerous other
fundamental rights are similarly recognized by the Convention.
In contrast to the foregoing class of fundamental rights which do not depend
on the enactment of formal laws by States Parties for their existence and
legitimacy, the Convention also recognizes classes of interests which must
depend for their definition and protection on the enactment of local laws.
Under the terms of the Convention, protection for such interests is specified
to be either mandatory or permissive. Where protection is mandatory, the Convention
requires that local laws be enacted. Where protection is permissive, the Convention
merely permits the interest to be protected by local laws. In both instances,
however, the Convention makes express reference to a need for enactment of
local laws, thus negating any inference that protection for the interests
in question can be deemed "self-executing".
An example of a mandatory requirement that States Parties enact legislation
may be found in Article 13(2)'s reconciliation of reputation interests with
the right of free expression by directing that the right of freedom of expression
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:
a. Respect for the rights or reputations of others....
This provision does more than merely permit legislation which imposes subsequent
liability on speech where necessary to ensure, inter alia, protection
for interests in reputation. It requires that the right of free expression
only be made subject to subsequent liability under such local laws as shall
be established "to the extent necessary to ensure" respect for reputation.
The Convention protects other interests as well by mandatory requirements
that States Parties enact laws.
The Convention also recognizes a class of permissive interests which may,
but need not, be protected by the law of States Parties. The permissive provisions
of Article 14(1) fall in this third category. In addition to Article 14(1)'s
allowance that the local law of the States Parties may establish conditions
governing a "right to reply", the Convention provides, for example,
that public entertainment's "may be subject by law" to prior censorship
for certain narrow purposes (Articles 13(4); that the freedom of movement
"may also be restricted by law" in designated zones for reasons
of public interest (Article 22(4) ); and that the law "may regulate"
the right to participate in government in certain defined ways (Article 23(2)
).
The intent of these provisions is to permit, but not to require, laws of the
types mentioned. Thus, Article 22(4) of the Convention permits legislation
which would restrict freedom of movement in certain designated zones for reasons
of public interest, but it plainly does not require the States Parties to
set up designated zones and restrict freedom of movement in them. Similarly,
Article 23(2) of the Convention permits States Parties to regulate the rights
of their citizens to take part in government on the basis of age, but it does
not require that they do so. The same is true of the permissive provisions
of Article 14(1). The Convention permits States Parties to establish by law
conditions under which a "right of reply" may be exercised, but
it does not require that they do so.
Given the permissive language of Article 14(1), Article 1 of the Convention
does not render a "right of reply" automatically incorporated into
the local law of the States Parties to the Convention. Article 1 merely provides
that States Parties undertake to respect and carry out within their jurisdictions
the provisions of the Convention. This general provision cannot give rise
to a self-executing or mandatory obligation where a specific provision of
the Convention, such as Article 14(1), has merely created a permissive condition.
Thus, States Parties to the Convention may comply with Article 1 obligations
whether or not they establish by local law conditions governing a "right
of reply", because Article 14(1) does not require establishment of such
conditions.
Indeed, the thesis that the permissive provisions of Article 14(1) might be
"self-executing" is rebutted simply by the Convention's affirmative
requirement that States Parties undertake to adopt "such legislative
or other measures as may be necessary to give effect to" the provisions
of the Convention. If even permissive provisions of the Convention, such as
those of Article 14(1), were to be deemed "self-executing", then
Article 2 and the related provisions of the Convention would be mere surplusage.
The Court must interpret the Convention so as to give purpose and effect to
all of its provisions. The provisions of Article 14(1) cannot therefore be
deemed "self-executing".
II. States Parties to the Convention Have No Obligation to Enact Laws
Creating a "Right of Reply" in Their Jurisdictions.
Analysis of the second and third questions posed by the Government of Costa
Rica must begin with the permissive nature of Article 14(1)'s provisions.
As observed in the preceding section, the provisions of Article 14(1) are
merely permissive in that they permit but do not require States Parties to
enact laws establishing conditions under which a "right of reply"
may be exercised. Apart from relevance to the question of whether Article
14(1) is self-executing, the permissive language of Article 14(1) thus also
necessitates the conclusion that States Parties have no obligation under Articles
1 and 2 of the Convention to enact such local laws as would be necessary to
create and govern a "right of reply". Moreover, other aspects of
human rights policy embodied in the Convention support the view that States
Parties have no mandatory obligation to create in their local law a "right
of reply".
Unlike the basic, fundamental human rights recognized in provisions of the
Convention such as Articles 12 and 13 (freedoms of conscience, religion, thought,
expression and the press), the Article 14(1) provisions concerning a "right
of reply" are of a subsidiary, procedural character. The purpose of the
Article 14 provisions is to recognize a permissible procedural avenue by which
basic, fundamental interests recognized in other portions of the Convention
(such as interests in privacy, reputation and dignity recognized in Articles
11 and 13(2) (a) ) may be vindicated.
The secondary, non fundamental character of the "right of reply"
is illustrated by the fact that neither the (European) Convention for the
Protection of Human Rights and Fundamental Freedoms ("the European Convention")
nor the International Covenant on Civil and Political Rights ("the Covenant")
recognize the existence of, or mention, the "right of reply". The
Convention itself provides that interpretation of the Convention may be assisted
by reference to international instruments setting forth human rights principles,
and this Court has previously looked to both the European Convention and the
Covenant for assistance in interpreting the Convention. Similarly, a "right
of reply" is not recognized or provided for in either the American Declaration
of the Rights and Duties of Man or the Universal Declaration of Human Rights.
These instruments recognize fundamental interests in reputation, privacy and
human dignity, but they do not give preference to any one specific procedural
mechanism (among the many which might be devised) to protect these interests.
Thus, the Convention stands alone in devoting specific attention to a "right
of reply" as distinct from other procedural mechanisms which local laws
may devise to protect fundamental interests in reputation, privacy and human
dignity.
Article 14(1) is both narrowly drafted and made contingent on those limiting
conditions of local law which States Parties may establish to effectuate a
"right of reply". Exemplifying this narrow scope is article 14(1)'s
affirmative exemption from any "right of reply" obligation of all
communications media which are not "legally regulated". The question
of what communications media in a given jurisdiction are "legally regulated"
must be answered, in the first instance, by reference to the local laws of
States Parties.
The extent of regulation necessary to satisfy the "legally regulated"
standard of Article 14(1) must be substantial. At minimum, government licensing
and a pervasive scheme of substantive regulation must exist before the medium
in question can be considered "legally regulated" for purposes of
Article 14. This can be demonstrated by analysis of the language of the Article.
All commercial and non commercial enterprises are subject to common forms
of legal "regulation". These common forms of "regulation",
to which communications and non communications enterprises alike are subjected,
include generally applicable laws such as tax laws, labor laws, and laws against
discrimination. That such common forms of "regulation" do not satisfy
the "legally regulated" requirement of Article 14(1) is apparent,
because a contrary conclusion would render the "legally regulated"
requirement of the Article both unnecessary and redundant.
Because all communications media are equally subject to common, content neutral
forms of regulation of the business aspects of their operations, it would
be unnecessary and, indeed, senseless for the Convention to purport to restrict
a "right of reply" only to those media which are "legally regulated"
in this universal manner. By restricting to "legally regulated"
media the application of the right, the Convention distinguishes those media
which are subject to a uniquely pervasive scheme of legal regulation from
other media which are not subject to such a scheme. Any other conclusion would
require interpretation of Article 14(1)'s "legally regulated" qualification
as merely superfluous or redundant. Thus, the minimum attributes of a "legally
regulated" medium of communication under Article 14 are a substantial,
pervasive regulatory scheme, including a government administered licensing
system. Where such a pervasive scheme of regulation is not present, the medium
may not be considered "legally regulated" within the meaning of
Article 14(1).
From the foregoing, it follows that the provisions of Article 14(1) prohibit
application of a "right of reply" to the press and all print media
not controlled by government. As previously stated, Communications media may
not be made subject to a "right of reply" under Article 14 unless
they are "legally regulated", and such regulation would have to
consist of a pervasive scheme, including government licensing of the medium
in question. Under the provisions of Articles 12 and 13 of the Convention,
however, imposition of a licensing requirement on the free press is contrary
to the fundamental right of free expression, and thus imposition of a "right
of reply" on the press contravenes the provisions of Articles 12, 13
and 14(1).
Although the Court need not decide in this case to what extent a "right
of reply" may be imposed on pervasively regulated media, resolution of
that question must turn in part on the particular circumstances and modes
of regulation which exist in the various jurisdictions of States Parties to
the Convention. No one rule or result is necessarily appropriate for all jurisdictions.
In any event, only the most compelling circumstances can justify imposition
of a "right of reply" even on pervasively regulated, privately operated
communications media.
Article 14(1)'s scope is also restricted by requirements that a person be
"injured" by the statements in question, that the statements be
"inaccurate" or "offensive", and that they be disseminated
to the public "in general", rather than to a discrete portion of
it. As with the restrictive condition that the communications medium be "legally
regulated", the definition and interpretation of these further limitations
on the right must occur in the context of local conditions and laws in the
jurisdictions of the States Parties. Thus, Article 14(1) has provided that
the local laws of the States Parties may establish conditions governing a
"right of reply". Conditions governing such a right which would
be appropriate for one State Party could be totally inappropriate for another.
Indeed, the existence of any form of "right of reply" may be inappropriate,
given local circumstances, in the jurisdictions of one or more States Parties.
Accordingly, Article 14 permits but does not require States Parties to establish
conditions of local law creating a "right of reply". States Parties
are under no obligation under the Convention to enact in their local law a
"right of reply". Because States Parties are not required by the
Convention to enact local laws creating a "right of reply", the
third question posed by the Government of Costa Rica regarding the type of
laws which the Convention would require to create such a right is moot.
CONCLUSION
For the reasons given, the Amici Curiae respectfully urge the court
to refrain in this case from expressing an opinion on the issue, not here
presented, of the substantive merits of an Article 14(1) "right of reply".
Amicus Curiae urge the Court to rule only that the provisions of
Article 14(1) of the American Convention on Human Rights are not "self-executing"
and that States Parties are under no obligation to enact local laws providing
for a "right of reply".
Respectfully submitted
Leonard H. Marks
Richard M. Schmidt, Jr.
J. Brian DeBoice
Cohn and Marks
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036
(202) 293-3860
Counsel for Inter American Press Association, World Freedom Committee, American
Newspaper Publishers Association, Federation Internationale des Editeurs de
Journaux, The Copley Press, Inc., The Miami Herald, Newsweek, USA Today, The
Wall Street Journal, and The International Herald Tribune
Of Counsel:
W. Terry Maguire
Vice President/General Counsel
American Newspaper Publishers
Association
Box 17407, Dulles Airport
Washington, D.C. 20041
(703) 648-1060
(Additional Counsel listed
in Appendix)
April 4, 1986
APPENDIX
Of Counsel:
(continued from front cover)
Harold W. Fuson, Jr.
Vice President and General Counsel
The Copley Press, Inc.
7776 Ivanhoe Avenue
La Jolla, California 92037
(619) 454-0411
Robert B. Back
Richard J. Tofel
Patterson, Belknap, Webb & Tyler
30 Rockefeller Plaza
New York, New York 10112
(212) 541-4000
Alice Neff Lucao
Assistant General Counsel
Gannett Company, Inc.
1100 Wilson Boulevard
Arlington, Virginia 22209
(703) 284-6948
Lee W. Huebner
Publisher
International Herald Tribune
181 Avenue Charles De Gaulle
9200 Neuilly
Paris, France
4637-9300
Diana Daniels
Vice President and General Counsel
Newsweek, Inc.
444 Madison Avenue
New York, New York 10022
(212) 350-4713