Communication Law and Policy in North America

North America consists of 23 countries, including the United States, Canada, Mexico, the Caribbean Island nations, and Central America. The continent also encompasses several territories and possessions such as Greenland. The United States dominates the region, especially in the area of communication law and policy, with Canada next in line. Except for Cuba, all of the countries in the region are democracies, with most of the legal systems based on the American system, English common law, or French civil law. All of the countries have constitutions that protect the right of freedom of expression. The extent of the right in practice, however, varies. In the 2006 Freedom House classification regarding freedom of the press, 14 of the countries are free (61 percent), 7 are partly free (30 percent), and 2, Cuba and Haiti, are not free.

Constitutional Protections

The United States has the oldest constitution on the continent. Protection for freedom of expression falls under the First Amendment, which states that: “Congress shall make no law . . . abridging the freedom of speech, or of the press”. Although the provision originally applied only to Congress, it has been extended to governments at the state and local levels as well. The First Amendment is written in absolute language, but the protection it provides has never been absolute. The level of protection tends to vary depending on societal conditions. As a general rule, however, political speech (speech critical of the government) receives the greatest protection. Commercial speech (speech motivated by profit) receives less protection, and obscene speech receives no protection.

The other North American countries have chosen not to adopt the absolute language of the First Amendment in their constitutions, and build in a method for balancing freedom of expression with other societal interests, rather than leaving the courts to create limits on the substantive definition of freedoms themselves. Freedom of expression, for example, is protected in Canada by Section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter). The section provides that “everyone has the following fundamental freedoms: . . . (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” The Charter also provides in Section 1 that the freedom is subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 1 allows the courts to reach a just result in a particular case without unnecessarily restricting the scope of freedom of expression.

The Mexican Constitution as of 2002 provides in Article 7 that “The freedom to write and publish on any matter is inviolable.” While “no law or authority may establish prior censorship, or require bond from authors or printers, or abridge the freedom of printing,” freedom of the press can be limited by “the respect of private life, of morals, and of public peace”. Similarly, Guatemala’s constitution protects freedom of expression from governmental interference, but also allows for that freedom to be curtailed when its use is disrespectful of another’s privacy or morality (Greene 2007).

Nicaragua’s constitution provides for freedom of the press, but allows for some censorship (Freedom House 2006). Costa Rica, the oldest democracy in Latin America, has what is considered one of the freest press environments in the area (Freedom House 2005). Freedom of communication is guaranteed under Article 24 of the constitution (Freedom House 2006).

Guatemala’s constitution guarantees freedom of expression but restricts press freedom to accredited members of the press (Freedom House 2005). Cuba has the most restrictive constitutional provisions regarding freedom of expression. The constitution prohibits private ownership of media but does allow free speech and press provided they “conform to the aims of a Socialist society”.

American Convention On Human Rights

In addition to individual country constitutions, several of the states in North America are signatories to the American Convention on Human Rights. Under the convention, “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.” The convention specifically provides that “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” (American Convention, Article 32[2]).

The convention is applied and interpreted by the Inter-American Court of Human Rights, which was created in July 1978 with the ratification of the convention (Statute). The court is an autonomous judicial institution seated in San Jose, Costa Rica. It has the power to decide cases involving those states that have formally recognized its jurisdiction. Barbados, Costa Rica, Dominica, the Dominican Republic, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, and Panama have all declared themselves subject to its jurisdiction (Pasqualucci 2006). In addition, any member state of the Organization of American States (OAS) may ask the court for an advisory opinion regarding the interpretation of the convention.

The court has interpreted the right of freedom of expression as having two interdependent dimensions: an individual dimension, which is the right to express oneself, and a social dimension, which is the right to communicate and to receive information (Ivcher Brontein Case 2001; Pasqualucci 2006).

Access to Information

Although constitutional protections for freedom of expression are important, they can be meaningless for journalists without access to information. In the United States, where freedom of the press has long been vigorously protected, the Freedom of Information Act (FOIA) permits any person access to the records of federal executive branch agencies. Under FOIA, government records are presumed open and exemptions to that openness are to be construed narrowly. After the September 11, 2001 terrorist attacks, however, the federal government changed its policy, making the range of the nine exemption categories broader and reducing access. The Homeland Security Act of 2002 further restricted the presumption of openness by expanding the nature of the information that fell under the national security exemption.

Canada also has a federal act regarding access to information. The Access to Information Act allows any individual to apply for access to a government document, and, like its US counterpart, has exemptions to the presumption of openness. Unlike in the United States, however, individuals who believe they have been improperly denied access to a record under the Act can appeal to the Office of the Information Commissioner of Canada. The Information Commissioner is an independent ombudsman appointed by Parliament to investigate complaints under the Act and mediate disputes. The Commissioner has strong investigative powers and annually ranks government agencies on their compliance with the Act.

As with the United States government, the Canadian government has restricted access to information since 2001. The Security of Information Act forbids unauthorized possession or communication of sensitive government information. In 2005, the government extended the Act’s coverage to include a broader number of agencies. The result has been a severe curtailment of information flow to journalists (Freedom House 2006).

In Mexico, the concept of the public’s right to know is relatively new. Until the early 1980s, Mexico was under single-party rule. Criticism of the government was tolerated but only within certain limits and only by those who played by the rules (Sarmiento 2005). As a result, the majority of the country’s press tended to promote the official agenda of the Institutional Revolutionary Party (PRI) rather than serve as watchdogs of the government (Lawson 2002). PRI was framed as being “the only valid representative of the Mexican population as a whole” (Lawson 2002, 126). Thus, there was no need for a right of access to government information. But in the late 1980s and early 1990s, Mexicans began to think more broadly about government and democracy, and journalists began covering the emergence of this new civil society and paying less attention to the PRI. The result was a more democratic election and the passage in 2002 of the Federal Law for Transparency and Access to Information.

Like the Canadian Act, Mexico’s open records law created the Federal Institute for Access to Public Information to ensure that federal executive agencies were following the law in spirit and letter. Agencies in the judicial and legislative branches of government, however, were not subject to the Institute’s oversight. Originally hailed as one of the best open records laws in North America, the law has failed to live up to its promise because of procedural hurdles that hamper its use (Freedom House 2005).

Several of the Caribbean nation states are also new to the concept of freedom of information. Jamaica’s 2002 Access to Information Act provides for freedom of information (Freedom House 2005), as does the Dominican Republic’s 2005 Free Access to Public Information Act. The government of the twin-island state of Antigua and Barbuda fulfilled an election promise to pass freedom of information legislation in 2006. The legislation provides for an information commissioner (Freedom House 2006). While El Salvador is considered a relatively safe place for journalists to comment on their government, the country has no freedom of information legislation (Freedom House 2006). Nor is there such legislation in Barbados (Freedom House 2006). That situation may change, however, since the Inter-American Court has ruled that the right to freedom of expression protected by Article 13 of the American Convention includes the right to request and receive state-held information (Claude Reyes v. Chile 2006).

Broadcast Regulation

Broadcasting in all of the countries is a mixture of private and public ownership with varying levels of regulation, except for Cuba, where the government owns all the electronic media outlets. The United States has a system of private ownership of television and radio stations, but those stations operate on an electromagnetic band that is owned by the public. Broadcasters are licensed by the Federal Communications Commission and are obliged to operate in the public interest. Because they use a public resource, broadcasters are subject to greater regulation over their content than are the print media. For example, broadcasters must limit programming considered “indecent” to particular hours of the day (Middleton & Lee 2007).

Canada has a similar private-ownership broadcasting system, but it also has the public, government-funded Canadian Broadcasting Corporation. The Canadian Radio-Television and Telecommunications Commission (CRTC) grants licenses to and regulates broadcasters.

Internet Regulation

For the majority of the North American countries the percentage of their population with Internet access is extremely small. For that reason, most of the countries have no government restrictions or regulations on Internet access and content. The United States government, on the other hand, has tried to pass laws censoring Internet content, but the courts have ruled those attempts unconstitutional. Consumer protection legislation has been successful, with commercial websites being restricted in the amount of information they can collect from minors (Freedom House 2006).

In Canada, the CRTC has indicated that it will not regulate content on the Internet, although several provinces have enacted consumer protection legislation that affects e-commerce, and the criminal code gives judges wide latitude in deciding what constitutes hate speech on the Internet (Freedom House 2005). Cuba is the only country in the continent that strictly regulates Internet content and access (Freedom House 2006).

Other Restrictions on Freedom of Expression

As indicated, although the constitutions of every North American country protect freedom of expression, that protection is never absolute. Some countries have built restrictions into the constitutional documents themselves; others have laws that make the constitutional provisions meaningless, such as criminal defamation laws and desacato laws, also known as “insult” laws. Desacato laws criminalize “expression which offends, insults, or threatens a public functionary in the performance of his or her official duties” (Inter-American Commission on Human Rights 2002). Such laws are used to intimidate citizens and the media from criticizing the government and can result in self-censorship, effectively eliminating the public’s right to know (Pasqualucci 2006).

The United States has the strongest protections for journalists and others who speak out against the government. Defamation is still a criminal offense in some states, but the laws are rarely used (Middleton & Lee 2007). The US Supreme Court has made it difficult for public officials to bring libel suits civilly, requiring them to prove that the defendant knew the defamatory information was false or recklessly disregarded the truth. And hate speech is generally protected. In recent years, however, there has been an increase in the use of subpoenas to compel journalists to reveal confidential sources. Efforts to enact a federal law that would shield journalists from being compelled to reveal sources stalled, as they had on previous occasions. The District of Columbia and 34 states, however, have some form of “shield” law that protects journalists to some extent in such matters.

The Inter-American Court has not yet addressed the use of contempt laws to jail journalists who refuse to reveal sources although the Inter-American Declaration of Principles on Freedom of Expression specifies that “every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential” (Pasqualucci 2006; Inter-American Commission on Human Rights, n.d., Principle 8).

In Canada, journalists can be held in contempt for failing to reveal a source in a court case. And, unlike in the United States, defamatory libel and blasphemous libel are still criminal offenses under the Canadian Criminal Code (Freedom House 2006). Although the Canadian Supreme Court often looks to its US counterpart for guidance on freedom of expression issues, it has refused to adopt the American libel standard in civil cases brought by public officials, retaining the existing strict liability standard. Plaintiffs in libel actions need only show that the statement negatively affected their reputation and that the statement was made to a third party (Tingley 1999; Hill v. Church of Scientology 1995).

In April 2006, Mexico City’s Legislative Assembly passed a bill directing libel and slander complaints to be dealt with in civil courts, effectively eliminating criminal defamation. The law applies to the Federal District of Mexico City but has yet to be adopted by the other states (Greene 2007).

In Belize, the government may fine and imprison those who question the financial disclosures of public officials. And journalists are subject to libel laws for criticizing politicians (Freedom House 2006). Defamation is a criminal offense in El Salvador, and journalists are frequently prosecuted under the law (Freedom House 2006).

In May 2006, the Supreme Court of Honduras banned the criminal defamation laws that carried a mandatory twoto four-year jail term for defamation of a public official, but subpoenas are still used against journalists who reveal public information (Freedom House 2006). A year earlier, the country abolished its insult laws, which provided for the punishment of anyone who offended the president or other high-ranking government official (Pasqualucci 2006; Greene 2007).

Similarly, Guatemala’s highest court ruled in 2005 that the country’s insult laws were unconstitutional (Pasqualucci 2006; Greene 2007). Costa Rica’s Legislative Assembly also has removed desacato laws from the criminal code, but the country continues to have strict libel laws that include penalties of up to three years imprisonment for insulting a public official (Pasqualucci 2006; Freedom House 2006). In 2004, however, the InterAmerican Court of Human Rights held that the libel conviction of a Costa Rican journalist violated the American Convention on Human Rights (Pasqualucci 2006). In throwing out the conviction, the court concluded that those who “have an influence on matters of public interest have laid themselves open voluntarily to a more intense public scrutiny and, consequently, in this domain, they are subject to a higher risk of being criticized, because their activities go beyond the private sphere and belong to the realm of public debate” (Herrera Ulloa 2004, 129).

St Lucia usually enjoys a high level of freedom of expression. In 2003, however, the government amended the criminal code to include a jail term for anyone publishing false news that harms the public good. Section 361 of the Code states: “Every person who willfully publishes a statement, tale, or news that he or she knows is false, that causes or is likely to cause injury or mischief to a public interest, is guilty of an indictable offense and liable to imprisonment for a term not exceeding two years” (Freedom House 2005).

In Cuba, laws criminalizing “enemy propaganda” and the dissemination of “unauthorized news” effectively restrict freedom of speech. Violation of the country’s insult laws can result in jail terms of between three months and one year and in some situations up to three years. The Law of National Dignity proscribes jail time for “anyone who, in a direct or indirect form, collaborates with the enemy’s media.” The law is aimed at those who send material abroad for publication (Freedom House 2006).

References:

1. Advisory Opinion OC-5/85, 1985 Inter-Am. Ct. H.R. (ser. A) No. 5, pp. 31–32 (November 13, 1985).
2. American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the InterAmerican System, OEA/Ser. L.V/II.82 doc.6 rev.1 at 25 (1992).
3. Claude Reyes et al. v. Chile. Judgment of September 19, 2006, Inter-Am Ct. H.R. (Ser. C) No. 151 (2006).
4. Freedom House (2005). Freedom of the press. At https://freedomhouse.org/report/freedom-press/freedom-press-2005?page=251&year=2005.
5. Freedom House (2006). Freedom of the press. At https://freedomhouse.org/report/freedom-press/freedom-press-2006?page=251&year=2006.
6. Greene, M. (2007). It’s a crime: How insult laws stifle press freedom. Reston, VA: World Press Freedom Committee.
7. Herrera Ulloa, 2004 Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004).
8. Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129.
9. Inter-American Commission on Human Rights (n.d.). Declaration of Principles on Freedom of Expression, approved by the Inter-American Commission. At http://www.oas.org/en/iachr/expression/showarticle.asp?artID=26.
10. Ivcher Brontein Case, Judgment of September 4, 2001, Inter-Am Ct. H.R. (Ser. C) No. 84 (2001). At http://hrlibrary.umn.edu/iachr/C/84-ing.html.
11. Lawson, C. H. (2002). Building the fourth estate: Democratization and the rise of a free press in Mexico. Berkeley, CA: University of California Press.
12. Middleton, K. R., & Lee, W. E. (2007). The law of public communication. Boston, MA: Pearson.
13. Pasqualucci, J. M. (2006). Criminal defamation and the evolution of the doctrine of freedom of expression in international law: Comparative jurisprudence of the Inter-American Court of Human Rights. Vanderbilt Journal of Transnational Law, 39, 379 – 433.
14. Sarmiento, S. (2005). The role of the media in Mexico’s political transition. In A. B. PeschardSverdrup & S. R. Rioff (eds.), Mexican governance: From single-party rule to divided government. Washington, DC: Center for Strategic and International Studies.
15. Statute of the Inter-American Court on Human Rights, O.A.S. Res. 448 (IX-0/79), O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80, Vol. 1 at 98, Annual Report of the Inter-American Court on Human Rights, OEA/Ser.L/V.III.3 doc. 13 corr. 1 at 16 (1980), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser. L.V/II.82 doc.6 rev.1 at 133 (1992).
16. Tingley, C. (1999). Reputation, freedom of expression, and the tort of defamation in US and Canada: A deceptive polarity. Alberta Law Review, 37, 620 – 647.