The institutional dismantling in Latin America of the first and last of our freedoms is increasingly more aggressive and sophisticated. Personal, virtual, political, and judicial intimidation of journalists and the media are followed by reforms developed through a rather distinguishable legislative technique: dismantling the freedom of the press without even mentioning it.
From laws on national security, terrorism, cyberspace, and fake news to regulations on the good name of public officials and obstruction of constitutional functions, governments in several countries are studying and approving reforms that, although not directly referring to freedom of the press, end up undermining the essential values that allow its effective, critical, and independent exercise.
With aims to monitor illicit activities in social networks, the Legislative Assembly of El Salvador approved a few days ago reform to the Code of Criminal Procedure creating the “undercover digital agent.” State espionage thereby institutionalized in El Salvador is now legally attached to the chain of custody, which confers evidentiary value to reports and material collected by such agent as “digital evidence.”
In practice, the powers of this digital agent extend to journalists and media outlets that use social networks or send electronic messages.
The right of the press to investigate is being diluted through laws that do not relate to journalism. While the Bolivian Constitution establishes (Article 107) that the practice of journalism must be regulated by special law (“Ley de Imprenta”), a bill on Illegal Profits and Financing of Terrorism (Article 11) recently approved by the Bolivian Congress prevents invoking professional secrecy before government agencies and courts investigating matters related to finance, insurance, pensions, civil registry, property, or terrorism.
Bill 2630 of 2020 on Freedom, Responsibility, and Transparency in Internet, currently being processed in the Congress of Brazil, mandates the regulation of any information widely disclosed through or by any means (Article 4, Section 7). Similarly, without establishing exceptions in relation to the author or the content of the information, the new Cybersecurity Law of Honduras limits the disclosure of online information if the government considers such information violates national security.
Following a similar trend, the Congress of Nicaragua recently enacted the Cybercrimes Law which ordains the imprisonment of individuals (without distinguishing journalists or media outlets) who “disseminate fake news.” More directly, the Foreign Agents Law of 2020 restricts international funding of media outlets in Nicaragua.
Without exempting journalists or the media, a Decree-Law proposed by the Colombian Ministry of Technologies and Communications on Cyberspace Information Systems and Critical Digital Structures grants special powers to the National Digital Security Committee to regulate these structures. Moreover, using the crimes of slander and libel, an article of the 2021 Anti-Corruption Statute approved by the Colombian House of Representatives, intended to punish with jail and fines those who attempt “to attack or obstruct the constitutional and legal functions of any public official, denouncing false facts about him or her or his or her family.”
Freedom of the press in the region is also being threatened through impunity arising out of crimes against journalists and the discourse that institutionalizes their disappearance. As the U.S. Congress passes legislation to protect the physical integrity of journalists (Jamal Khashoggi Press Freedom Act of 2021) and promote independent press in the world (Global Press Freedom Act of 2021), Mexico, Nicaragua, Honduras, Ecuador, and Venezuela remain indifferent to the persecution, arbitrary detention, and murder of journalists.
Freedom of the press is an inalterable human right. Since its enshrinement (Article 19) in the 1948 Universal Declaration of Human Rights, freedom of the press stands as the right to hold opinions, investigate, and receive and disseminate information “by any means.” More so, since its first constitutional recognition in the Constitution of the United States of America of 1787, freedom of the press appears alongside freedom of expression as a cornerstone freedom, as the First Amendment states, “Congress shall make no law.”
While some states legislate under constitutional powers by omitting (through abstract and ambiguous laws) or restricting (through institutional intimidation) the freedom of the press, they violate the international law that protects it. After all, human rights apply precisely when constitutional rights do not, are restricted, or cease to exist.
The underlying nature of freedom of the press as an inalienable human right reveals the meaning of its original guarantee: restricted freedom of the press is a nonexistent freedom. History is implacable. In the end, freedom of the press is often the last voice standing before losing democracy.
J. Mauricio Gaona is an O’Brien fellow at the Center for Human Rights at McGill University.
