Latin America: Free expression and the law in 2011

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01 Mar 2012



This statement highlights the major legal developments relating to freedom of expression and information in Latin American and Caribbean countries in 2011. They include new laws, bills, rules and decisions made by national Supreme Courts.

The trends were mixed in the region in 2011. On the positive side:

  • The Supreme Court of Bermuda ruled that defamation was unconstitutional.
  • A number of nations took steps towards decriminalising defamation including:
    • Mexico
    • El Salvador
    • Peru
    • Jamaica
  • The Argentina and Mexico Supreme Courts made strong decisions on limiting discrimination in awarding government advertising.
  • Brazil, El Salvador and Guyana all adopted right to information acts, leaving only a few countries in the region without a law.
  • Five countries adopted comprehensive data protection laws giving individuals a right to access, correct and control the use of their personal information held by public and private bodies.  

However, there were also negative trends:

  • A number of countries, including Bolivia and Venezuela, adopted new telecommunications laws giving the governments strong powers over broadcasting and the internet.  
  • Most countries failed to act decisively to improve their legal structures for fighting impunity.

This statement covers these developments in greater detail and explains ARTICLE 19’s positions on the issues.

Constitutional Protection

Almost all the national constitutions across the region recognise freedom of expression. In 2011, only a few countries proposed changes to their constitutions which substantially affect freedom of expression.

  • Brazil: On 30 November, the Senate approved a bill (by a vote of 65 to 7) to modify the Constitution to require journalists to have a college degree in journalism. [i] The bill overturns the 2009 decision of the Supreme Federal Tribunal, which ruled that provisions of the media law were unconstitutional. The new bill was supported by some journalist groups. ARTICLE 19 believes that this proposal is unwise, as it:
    • sets arbitrary limits on who can practice journalism and
    • violates principle 6 of the Inter-American Declaration of Principles on Freedom of Expression.
  • Mexico: In November, the Chamber of Deputies approved a bill to amend Article 73 of the Constitution, making crimes against freedom of expression, information and the press subject to federal – rather than exclusively national - jurisdiction.[ii] The new bill allows federal investigation and, therefore, offers enhanced protection to journalists in states where the local authorities refuse or fail to investigate crimes against the media. ARTICLE 19 welcomed the bill as being necessary to address impunity in states which fail to adequately investigate crimes against journalists.

Media regulation

In 2011, numerous bills to regulate the media and impose new punishments for restricted speech were introduced in the region. Most of the bills were rejected following public opposition.

  • Brazil: In May, the Commission on Constitution, Justice and Citizenship of the Lower House of Congress approved a bill which criminalises the publication of leaked confidential information about official investigations.[iii]
  • Ecuador: In May, a constitutional referendum was held, calling on the National Assembly to create a new council to regulate the media. The referendum was approved by a small majority, though there were allegations of voter fraud.[iv] A new Communication Bill to create a council to regulate the media is now being considered by the National Assembly.
  • Panama: In September, a bill to regulate journalists was introduced.[v] The bill required:
    • required all journalists to be Panamanian citizens and have a university degree in journalism
    • set a salary structure

The bill was withdrawn shortly after its introduction.

  • Peru: In July, the Supreme Court sent a proposal to Congress for a bill that would prohibit the media from publishing information gathered by illegal wiretaps or photographs. The bill recommended sentences of three to six years.[vi] The bill included a public interest defence if illegal wiretaps of photographs are used to prevent or stop a criminal offence. 

Media and Election Restrictions

Media restrictions during elections remained a concern in the region. There were a few developments – none positive - in 2011.

  • Mexico: In March, the Supreme Court rejected a challenge to the 2009 amendment to the Constitution, which prohibits private persons from buying advertising during elections. [vii] Under the law, only the Federal Election Commission is allowed to buy advertising to influence elections.
  • Peru: In February, the National Election Commission issued a decree which required political pollsters to hand over to the Commission personal information about those polled.[viii] This led to concerns that polls would be less reliable if people’s opinions were available to the government. After strong public protest, the regulations were retracted less than a week later. 

Broadcasting laws

In 2011, there was a negative trend regarding the regulation of broadcasting. A number of countries adopted new laws imposing restrictions on broadcasters, both commercial and community-based, leading to concerns about increased government control of the sector.

  • Bolivia: On 28 July, Congress passed the controversial Law on Telecommunications, Information and Communications Technology (Ley General de Telecomunicaciones, Tecnologías de Información y Comunicación)[ix] The law  gives the state majority control of electronic media and redistributes broadcasting licences, setting .  a limit on the percentage of frequencies used by private broadcasters. Under the act:
    • the government will hold 33% of broadcasting licences; the remainder will be divided among:
      • the commercial sector (33%)
      • the community at large (17%)
      • indigenous groups (17%) 
    • interception of telephone conversations is permitted in cases of national security, threats from abroad or disasters.
    • telecommunications providers are obliged to co-operate with authorities by providing information when asked.

In May, President Morales issued a decree ordering the media to be more patriotic and support the country’s suit against Chile in a maritime dispute.[x] The decree also requires broadcasters to play military hymns on Mondays and Fridays.

  • Brazil: In October, a new administrative rule on community radios was issued[xi]. The rule updates the administrative procedures for obtaining a community radio licence and regulates financial support.
  • Paraguay: In March, Congress overrode the veto of President Lugo and adopted a new law restricting community broadcasting.[xii] The law amends the Telecommunications Act to: 
    • prohibit community broadcasters from broadcasting advertising
    • limit their signal strength and times of broadcast. 

The bill was supported by commercial broadcasters.

  • Venezuela: In February, the amended Law on Social Responsibilities on Radio, Television and Electronic Media was published in the Gaceta Oficial.[xiii] The law:
    • requires all media to broadcast a variety of mandatory content, including all government messages and speeches.
    • creates numerous regulatory bodies controlled by the government rather than independent bodies.
    • creates new sanctions for a variety of vaguely worded offences including “encouraging anxiety among the citizenry” and “disregarding legitimate authorities”.
    • contains broad provisions for state control over the internet, with all electronic media being regulated in the same way as traditional broadcasting. 

In November, the Law on Communication for People’s Power” regulating community radio was introduced.[xiv] This law will provide funding to community stations, under the management of the vice president.

Information and Communication Technologies

The regulation of information and communications technologies has been an area of increased controversy in 2011. As mentioned above, Ecuador and Venezuela adopted new laws on telecommunications, which imposed restrictions on the internet based on older regulatory models. There was also growing controversy over limits to the internet in order to protect intellectual property. On a positive note, Brazil considered one of the most progressive bills on internet regulation anywhere in the world.

  • Brazil: In October, a new bill on internet rights was introduced, following two years of public consultation.  The law includes many positive provisions including:
    • limiting the liability of ISPs
    • protecting user privacy
    • promoting network neutrality

ARTICLE 19 has welcomed the bill as a progressive recognition of human rights on the internet which should be adopted.

Congress is also considering a bill on cybercrime that would require computer providers to keep records on their users’ activities for 3 years.[xv] ARTICLE 19 has raised concerns about the broad scope of this law in creating new criminal penalties.

In June, a decree established the conditions for the Broadband National Plan.[xvi]  Among other measures, the decree:

  • authorises Anatel (Brazilian telecommunications agency) to develop standards for broadband
  • promotes the availability of the service to rural areas
  • promotes free access of the service to all public schools in rural areas.

Civil society organisations have criticized the lack of commitment to universalise the service, as well as its quality criteria which were adopted later.

  • Colombia: In April, the “Lleras” Law - about the liability of internet service providers and intellectual property - was introduced into the Colombian Parliament.[xvii] The bill:
    • requires ISPs to remove content within 72 hours of a complaint by an intellectual property holder, without prior review by a judge.
    • permits judges to order blocking of sites.

The bill was introduced in order for Colombia to be in compliance with the US-Colombia Trade Promotion Agreement. The bill was shelved by the Senate in November.

  • Mexico: In June, the Mexican Senate adopted a resolution calling on the executive not to sign the controversial global Anti-Counterfeit Commercial Agreement (ACTA). ACTA requires nations to adopt new measures to filter or otherwise limit access to web sites.[xviii]  ARTICLE 19 welcomed the resolution and calls on the Mexican government to formally oppose the treaty.

In August, the Mexican state of Tabasco's Congress considered an amendment to the criminal code to punish false alarms which create “social alarm”.[xix] Over a dozen other Mexican states are considering similar bills. ARTICLE 19 has strongly opposed these laws as they would criminalise harmless or unintentional speech.

Protection of Journalists, Human Rights Defenders and Bloggers

The safety of journalists and others commenting or reporting on areas of public interest is one of the top concerns in the region. In 2011, dozens of journalists, bloggers and others have been murdered or attacked because of their work. There were, however, a few positive legislative developments during the year.

  • Mexico: In November, the Chamber of Deputies approved a bill amending Article 73 of the Constitution. This places crimes against freedom of expression, information and the press under federal jurisdiction, rather than exclusively state jurisdiction.[xx] This allows federal investigations and, therefore, offers enhanced protection to journalists in states where the local authorities refuse or fail to investigate crimes against the media.
  • Brazil: In April, the Commission on Constitution, Justice and Citizenship of the Chamber of Deputies approved a bill which established a Protection Program for Human Rights Defenders.[xxi] The bill is expected to be approved by the full Chamber in the near future. ARTICLE 19 welcomed this bill as necessary to fight the growing culture of impunity in Brazil.

Official Advertising

There has been growing opposition to the discriminatory awarding of government advertising which indirectly influences the editorial independence of opposition media. In 2011, there were major decisions in the Argentina and Mexico Supreme Courts against the practice. 

  • Argentina: In March, the Supreme Court ruled that governments could not offer official advertising in a discriminatory manner.[xxii]
  • Mexico: In July, the Supreme Court ruled that government bodies cannot discriminate against community radio stations in their distribution of advertising.[xxiii] This prohibits local authorities  from promoting their interests through large radio networks and  limiting funding to smaller community-oriented ones. 

Defamation and Privacy

Developments relating to freedom of expression, honour and personal life were mostly positive in 2011. The Inter-American Court of Human Rights issued a decision in November, which balances freedom of expression and personal privacy[xxiv] The decision sets out useful standards for:

  • evaluating issues relating to the privacy of public figures
  • determining the public interest in the disclosure of the information.


Mexico, Bermuda and El Salvador all decriminalised defamation. The legislatures in Peru and Jamaica made positive progress.

However, the high courts in Chile and Colombia upheld criminal penalties for defamation. Also, in November, the Inter-American Court heard a case relating to criminal defamation.[xxv]

  • Mexico: On 29 November, the Senate voted 81-0 to eliminate the two provisions of the 1917 press crimes act which criminalised defamation, libel and slander.[xxvi] The law was approved and published in the Official Diary in January 2012.
  • Bermuda: In August, the Supreme Court ruled that criminal defamation violates the Constitutional right to free expression.[xxvii]
  • El Salvador: In September, the Legislative Assembly approved a bill to eliminate criminal defamation, replacing it with civil fines and the suspension of journalists.[xxviii] The law was published in the Official Diary in December 2011.[xxix]
  • Peru: In July, Congress adopted a bill which amended the criminal code to eliminate imprisonment for criminal defamation.[xxx] Criminal penalties were replaced with fines and community service. However, the bill was not signed by President Garcia.
  • Jamaica: In June, a Joint Select Committee of Parliament, which has been reviewing defamation laws since 2007, submitted a report to Cabinet. It recommended reform to the defamation laws, including decriminalisation. 
  • Colombia: In May, the Supreme Court ruled that criminal defamation is constitutional.[xxxi] The Court found that the jurisprudence of the Colombian courts had adequately defined the crimes and that they were created to protect another fundamental right - the right to honour - and as such were established to pursue a legitimate goal. The Court also affirmed that the use of criminal provisions was not disproportionate, as they were needed as a deterrent.
  • Cosra Rica: In June, Parliament voted to shelve a long-standing project, a Draft Law on Freedom of Speech and Press to reform:
    • the criminal code and criminal procedure law
    • the Law on Radio and Television
    • the 1902 Press Law.[xxxii]

The bill would have brought needed reform to the archaic press laws, including eliminating provisions on criminal defamation and improving defences for libel charges. 

  • Panama: In January, a bill which would have created new criminal penalties for insulting the president and other officials was introduced - and withdrawn a week later. President Martinelli announced that he would veto the bill if it were adopted.

National Security

There is growing concern over the use of national security laws to limit freedom of expression and access to information. A number of countries have adopted or are considering laws which would have a wide-reaching impact on the public’s ability to access information. On a positive note, Jamaica opposed the trend by proposing to eliminate the colonial-era Official Secrets Act.

  • Colombia: In June, a new intelligence bill was approved by Congress.[xxxiii] The bill: 
    • allows for official secrets to be held for up to 45 years before they can be made public 
    • allows long prison sentences for anybody “leaking” information 
    • sets limits on wiretapping  

This law follows a 2009 decision by the Supreme Court which found that a previous law was unconstitutional.[xxxiv]

In October, the Administrative Security Department (DAS,) which had for years committed illegal wiretapping against opposition politicians, journalists and the Supreme Court, was shut down. 

  • Jamaica: In March, a Joint Select Committee of Parliament released a report recommending changes to the Access to Information Act.[xxxv] The committee recommended repealing the Official Secrets Act and replacing it with a more limited law. This would make Jamaica one of the few countries in the world which has taken this step and would be very positive for access to information.
  • Mexico: In May, a bill to revise the National Security Act in Mexico, which gave broad new powers to the military to deal with “obstacles to national security”, was debated and then stopped in the Chamber of Deputies.[xxxvi] It was considered that the bill would be used against public protests and facilitate surveillance by the military

Freedom of Information/Data Protection

In 2011, there have been significant positive developments relating to the right to information in the region. A number of countries, including Brazil, El Salvador and Guyana, adopted new laws on the right to freedom of information, while others including Costa Rica and the Bahamas took steps to adopt new laws. Most countries in the region now have either laws or national regulations giving a right of access.

  • Brazil: In October, after 8 years of debate, the Brazilian parliament finally approved the Law on Access to Information.[xxxvii] The bill was signed by President Dilma Rousseff in November. The law obliges all public bodies in Brazil to adopt procedures for publishing information and receiving and responding to requests within 180 days. ARTICLE 19 welcomed the final adoption of the bill and urges the government to provide adequate resources and efforts to fully implement it.

President Rousseff also signed a bill creating a truth commission to investigate the crimes of the military dictatorship.[xxxviii]

  • El Salvador: In March, Congress approved the Public Information Access Law, a comprehensive right to information law . The law was  initially approved in December 2010 but was sent back to Congress after President Mauricio Funes recommended seven amendments.[xxxix]
  • Guyana: In September, the Parliament of Guyana approved the Access to Information Bill.[xl]The bill:
    • gives right of access to information held by public bodies
    • requires that government bodies publish information on their activities
    • creates a Commissioner of Information to act as a “clearing house” for requests and publication of information.
  • Jamaica: In March, a Joint Select Committee of Parliament released a report recommending changes to the Access to Information Act.[xli] Proposed changes include:
    • making the Access to Information Unit a statutory body
    • strengthening the Appeal Tribunal
    • new rules on publication schemes
    • a public interest test for some exemptions, including Cabinet records after 10 years. 
    • repealing the Official Secrets Act and replacing it with a more limited law.

Unfortunately, a proposal to create an information commission was rejected.

  • Mexico: In November, the Supreme Court ruled that Article 14 of the Federal Law of Transparency and Access to Public Government Information should be re-interpreted. The Court ruled that preliminary investigations into facts that may constitute serious violations of human rights cannot now be exempt from release, and thus are deemed public information, in accordance with the provisions of article 6 of the Constitution.[xlii]
  • Other Jurisdictions: A number of other jurisdictions also continued to discuss bills relating to freedom of information, including:
    • Costa Rica
    • Bahamas
    • Dominica
    • British Virgin Islands. 

The RTI bill in Argentina has languished after being approved by the Senate in 2010. 

Data protection

There have been significant developments relating to data protection in Latin America and the Caribbean in 2011. Five countries – Colombia[xliii], Costa Rica[xliv], Peru[xlv], St Lucia[xlvi], and Trinidad and Tobago[xlvii] all adopted Data Protection Acts. These acts regulate the collecting, use and processing of personal information by governments and private organisations. Of particular importance is the fact that these laws give individuals the right to demand copies of their information from private organisations including banks, hospitals and telecommunications companies. Brazil and Chile are also considering new legislation.

Freedom of Assembly

Closely related to the right of freedom of expression is the right of individuals to protest. In 2011, the Brazilian Supreme Court issued two important decisions limiting the ability of authorities to restrict the issues that can be protested. In Chile, the new conservative government offered a bill to impose new penalties in the wake of extensive student protests.

  • Brazil: In June, the Supreme Court ruled a decision by authorities to prohibit the annual marijuana march (citing a 2006 anti-drug law which prohibits the promoting of drugs) to be a violation of the freedom of expression. The Court ruled that the provision could not prohibit public discussion and advocacy to reform the drug laws.[xlviii]

In November, in a related case, the Supreme Court ruled that the provision was unconstitutional.[xlix]

  • Chile: In October, the Chilean government introduced a bill "ley antitomas" in Congress, which:
    • criminalises public protests that interfere with the public infrastructure.[l]
    • requires that the media hand over video records of protests without a court order.

It was approved by the Public Safety Committee in December and remains before Congress.


While there was some progress a few areas – especially freedom of information, data protection, official advertising, and decriminalization of defamation, and a positive decision at the Inter-American Court of Human Rights, there were many setbacks and disappointments during the year. Of particular note is the failure of most countries to address impunity and attacks on journalists. Equally of concern were new proposals to limit freedom of expression in broadcasting and information and communications technologies, especially the Internet.

ARTICLE 19’s recommendations

  • Countries must adopt legal systems which ensure that crimes against journalists are adequately investigated and prosecuted.
  • The decriminalisation of defamation needs to be fully embraced by all countries.
  • The right to information needs to be fully adopted and implemented. All countries in the region are obliged by the Reyes v Chile case to recognise the right of access to information.
  • Freedom of expression for ICTs needs to be better recognised. New laws on ICTs should not adopt standards based on broadcasting or other regulatory models which are inappropriate.

Restrictions on media, including provisions requiring registration, licensing or academic qualifications for journalists, should be reformed.

[i] Proposta de Emenda à Constituição 33/2009.

[ii] Gaceta Parlamentaria, año XIV, número 3388-II, viernes 11 de noviembre de 2011.

[iii] Projeto de Lei 1947/07


[v] Anteproyecto de Ley número 65 que regula el escalafon salarial de los periodista.

[vi] Proyecto de ley Que Modifica el Artículo 162° del Código Penal, Referido a la Interceptación, Interferencia y Difusión de Comunicaciones Privadas

[vii] Amparo en Revisión 2021/2009, SCJN,  28 March 2011.

[viii]Jurado Nacional de Elecciones, Resolución N.° 038-2011-JNE, 11 de febrero de 2011.

[ix] Ley General de Telecomunicaciones, Tecnologías de la Información y Comunicación. Proyecto de ley Nº 0474/2011-2012.

[x] Decreto Supremo 859 del Derecho a la Recuperación Marítima (13/V/11).

[xii] Ley Nº 4179/11. Que modifica los artículos 57, 58, 70, 73, 98 y 100 de la Ley 642/95 de Telecomunicaciones”.

[xiii] Ley de Responsabilidad Social en Radio, Televisión y Medios Electrónicos.

[xiv] Proyecto de Ley de Comunicación para el Poder Popular.  (LCPP).

[xv] PL 84/1999


[xvii] Proyecto de Ley de “Por el cual se regula la responsabilidad por las infracciones al derecho de autor y los derechos conexos en Internet”



[xx] Gaceta Parlamentaria, año XIV, número 3388-II, viernes 11 de noviembre de 2011.

[xxii] E. 80. XLV. Editorial Perfil S.A. y otro c/ E.N. —Jefatura Gabinete de Ministros

[xxiv] Fontevecchia & D’Amico v. Argentina, Case No. 12.524. Serie C No. 238, 29 November 2011. http://

[xxvi] Proyecto de decreto por el que se derogan los artículos 1° y 31 de la Ley sobre Delitos de Imprenta.

[xxix] Decreto No 836. Reformas al Código Penal  Diario Oficial, 7 December 2011.

[xxxii] Proyecto de Ley de Libertad de Expresión y Prensa,

[xxxiii] Proyecto de Ley número 263 de 2011 Senado, 195 de 2011 Cámara: “Por medio de la cual se expiden normas para fortalecer el marco jurídico que permite a los Organismos que llevan a cabo actividades de inteligencia y contrainteligencia cumplir con su misión constitucional y legal, y se dictan otras disposiciones”.

[xxxiv] C-913-10.

[xxxv] Report of the Joint Select Committee to Consider and Report on the Operation of “The Access to Information Act, 2002” relative to the Review of the Legislation as Provided by the Act, March 2011.


[xxxvii] Lei de Acesso à Informação - LEI Nº 12.527, DE 18 DE NOVEMBRO DE 2011.

[xxxviii] Lei da Comissão da Verdade

[xxxix] Ley de Acceso a la Información Pública, El Decreto No. 534 del 30-03-2011.

[xl] Bill No. 10 of 2011, Access to Information Bill 2011.

[xli] Report of the Joint Select Committee to Consider and Report on the Operation of “The Access to Information Act, 2002” relative to the Review of the Legislation as Provided by the Act, March 2011.

[xlii] Amparo en revision, 168/2011, Suprema Corte de Justicia de la Nación, 31 Nov 2011.

[xliii] Ley estatutaria No. 184/ 10 Senado, 046/10 Cámara . Modified by Constitutional court decision SENTENCIA C-748/11

[xliv] Ley No. 8968 de Protección de la Persona frente al Tratamiento de sus Datos Personales de 7 de Julio de 2011.

[xlv]  Ley No 29733 Ley de Protección de Datos Personales.

[xlvi] Data Protection Act No. 11 of 2011

[xlvii] Data Protection Act 2011. Act No. 13 of 2011.

[xlviii] ADPF 187, Supremo Tribunal Federal

[xlix] ADI 4274, Supremo Tribunal Federal