| Legality (1) | Legitimate Grounds (2) | Necessity (3) | Proportionality (4) |
Intent (5) |
Actual, Real and Effective Possibility (6) | Violence (7) | |||||
| Restrictions must be previously established by law *1* | For reasons of general interest (general welfare) *2* | In accordance with the purpose for which such restrictions have been established *3* | Rights & reputation of others | National security, public order, public health or morals | Necessary in a democratic society (compelling public interest) *4* | Only way to achieve protection | Proportionate to the interest that justifies it | Appropriate for accomplishing legitimate purpose |
Clear intention to commit a crime *5* |
Actual, real & effective possibility of achieving that objective *6* | Incitement to violence, understood as incitation to commit a crime, rupture of public order, or national security *7* |
| The three-prong test to determine the validity of measures implementing article 13.2 regarding the establishment of restrictions on freedom of expression: “Freedom of expression is not an absolute right; instead, it may be subject to restrictions, as Article 13 paragraphs 4 and 5 of the Convention provide. Article 13(2) of the American Convention provides for the possibility of establishing restrictions on freedom of expression where it states that abusive exercise of the right to freedom of expression shall be subject to subsequent imposition of liability. However, beyond what is strictly necessary, such restrictions are not to limit the full scope of freedom of expression or become direct or indirect methods of prior censorship. In order to determine subsequent liabilities, three requirements must be met: 1) the restrictions must be previously established by law; 2) they must be intended to ensure the rights or reputation of others or to protect national security, public order, or public health or morals; and 3) they must be necessary in a democratic society.” See I/A Court H.R., Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of July 2, 2004. Series C No. 107, ¶ 120. | |
| The three-prong test to determine the validity of measures implementing article 13.2 is also applicable to determine the validity of measures implementing article 13.5 regarding the prohibition of advocacy that constitutes incitement. The Inter-American Commission on Human Rights has established the following: “Paragraph 5 [hate speech and incitement to commit a crime] makes no similar exception to paragraph 2, […] it follows that hate speech is governed by paragraph 2’s imposition of subsequent liability. […] Hate speech should be regulated like the other areas of expression provided for in paragraph 2.” See Inter-American Commission on Human Rights. Annual Report Of The Special Rapporteur For Freedom Of Expression 2004. Chapter VII: Hate Speech And The American Convention On Human Rights, ¶ 38. | |
| 1 | Restrictions must be previously established by law: “In relation to the requirements with which a restriction in this regard should comply, first, they must have been established by law to ensure that they are not at the discretion of public authorities.” See I/A Court H.R., Case of Claude Reyes et al. v. Chile. Merits, Reparations and Costs. Judgment of September 19, 2006. Series C No. 151, ¶ 89 to 91. “The grounds for imposing subsequent liability must be expressly, previously and strictly limited by law.” See I/A Court H.R., Case of Palamara Iribarne v. Chile. Merits, Reparations and Costs. Judgment of November 22, 2005. Series C No. 135, ¶ 79. |
| 2 | For reasons of general interest (general welfare): “Such laws should be enacted ‘for reasons of general interest’.” See I/A Court H.R., Case of Claude Reyes et al. v. Chile. Merits, Reparations and Costs. Judgment of September 19, 2006. Series C No. 151, ¶ 89 to 91. “That the word ‘laws’ in Article 30 of the Convention means a general legal norm tied to the general welfare, passed by democratically elected legislative bodies established by the Constitution, and formulated according to the procedures set forth by the constitutions of the States Parties for that purpose.” “From that perspective, one cannot interpret the word ‘laws,’ used in Article 30, as a synonym for just any legal norm, since that would be tantamount to admitting that fundamental rights can be restricted at the sole discretion of governmental authorities with no other formal limitation than that such restrictions be set out in provisions of a general nature.” “The requirement that the laws be enacted for reasons of general interest means they must have been adopted for the ‘general welfare’ (Art. 32(2)), a concept that must be interpreted as an integral element of public order (ordre public) in democratic states, the main purpose of which is ‘the protection of the essential rights of man and the creation of circumstances that will permit him to achieve spiritual and material progress and attain happiness’ (American Declaration of the Rights and Duties of Man […], First Introductory Clause.” See I/A Court H.R., The Word “Laws” in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, ¶ 38, ¶ 26 and ¶ 29. “It is possible to understand the concept of general welfare as referring to the conditions of social life that allow members of society to reach the highest level of personal development and the optimum achievement of democratic values.” See I/A Court H.R., Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, ¶ 66 |
| 3 | In accordance with the purpose for which such restrictions have been established: “The concept that those restrictions which are permitted must be applied ‘with the purpose for which such restrictions have been established’ was already recognized in the Draft Convention on Human Rights drawn up by the Inter-American Council of Jurists (1959). That Draft stated that such restrictions ‘shall not be applied with any other purpose or design than that for which they have been established’ (Inter-American Yearbook on Human Rights, 1968, Washington, D.C.: General Secretariat, OAS, 1973, at 248).” See I/A Court H.R., The Word “Laws” in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, ¶ 28. |
| 4 | Regarding the final part of the test, the Court has ruled: “The restrictions imposed must be necessary in a democratic society; consequently, they must be intended to satisfy a compelling public interest. If there are various options to achieve this objective, that which least restricts the right protected must be selected. In other words, the restriction must be proportionate to the interest that justifies it and must be appropriate for accomplishing this legitimate purpose, interfering as little as possible with the effective exercise of the right.” See also Case of Claude Reyes et al. v. Chile, ¶ 91; Case of Palamara Iribarne v. Chile, ¶ 85. |
| 5 | “The imposition of sanctions for the abuse of freedom of expression under the charge of incitement to violence (understood as the incitation to the commission of crimes, the rupture of public order, or of national security) must have as a prerequisite actual, certain, objective, and convincing proof that the person was not simply expressing an opinion (however harsh, unjust, or disturbing it may be), but rather that he or she had the clear intention to commit a crime and the actual, real, and effective possibility of achieving that objective. If this were not the case, it would allow the possibility of sanctioning opinions and all the States would be able to suppress any thought or expression critical of the authorities that, like anarchism or radical opinions contrary to the established order, question even the very existence of current institutions. In a democracy, the legitimacy and strength of institutions take root and strengthen due to the vigor of public debate about their functioning and not by its suppression.” See Report “Democracy and Human Rights in Venezuela.” Inter-American Commission on Human Rights (2009), ¶ 360. See also Annual Report Of The Special Rapporteur For Freedom Of Expression 2004. Chapter VII: Hate Speech And The American Convention On Human Rights, ¶ 5, and Case of Palamara Iribarne v. Chile, ¶ 79: “Criminal Law is the most restrictive and severe means of imposing liability for illegal conduct.” |
| 6 | “The imposition of sanctions for the abuse of freedom of expression under the charge of incitement to violence (understood as the incitation to the commission of crimes, the rupture of public order, or of national security) must have as a prerequisite actual, certain, objective, and convincing proof that the person was not simply expressing an opinion (however harsh, unjust, or disturbing it may be), but rather that he or she had the clear intention to commit a crime and the actual, real, and effective possibility of achieving that objective. If this were not the case, it would allow the possibility of sanctioning opinions and all the States would be able to suppress any thought or expression critical of the authorities that, like anarchism or radical opinions contrary to the established order, question even the very existence of current institutions. In a democracy, the legitimacy and strength of institutions take root and strengthen due to the vigor of public debate about their functioning and not by its suppression.” See Report “Democracy and Human Rights in Venezuela.” Inter-American Commission on Human Rights (2009), ¶ 360. See also Annual Report Of The Special Rapporteur For Freedom Of Expression 2004. Chapter VII: Hate Speech And The American Convention On Human Rights, ¶ 5, and Case of Palamara Iribarne v. Chile, ¶ 79: “Criminal Law is the most restrictive and severe means of imposing liability for illegal conduct.” |
| 7 | “The imposition of sanctions for the abuse of freedom of expression under the charge of incitement to violence (understood as the incitation to the commission of crimes, the rupture of public order, or of national security) must have as a prerequisite actual, certain, objective, and convincing proof that the person was not simply expressing an opinion (however harsh, unjust, or disturbing it may be), but rather that he or she had the clear intention to commit a crime and the actual, real, and effective possibility of achieving that objective. If this were not the case, it would allow the possibility of sanctioning opinions and all the States would be able to suppress any thought or expression critical of the authorities that, like anarchism or radical opinions contrary to the established order, question even the very existence of current institutions. In a democracy, the legitimacy and strength of institutions take root and strengthen due to the vigor of public debate about their functioning and not by its suppression.” See Report “Democracy and Human Rights in Venezuela.” Inter-American Commission on Human Rights (2009), ¶ 360. See also Annual Report Of The Special Rapporteur For Freedom Of Expression 2004. Chapter VII: Hate Speech And The American Convention On Human Rights, ¶ 5, and Case of Palamara Iribarne v. Chile, ¶ 79: “Criminal Law is the most restrictive and severe means of imposing liability for illegal conduct.” |
