By PAULA ROKO

On May 3, 2020, as part of World Press Freedom Day and just a few months into an unprecedented health emergency, the UN Secretary-General stated that disinformation had become the “second pandemic.” More recently, a resolution of the United Nations Human Rights Council described disinformation as “a threat to democracy.” In the Inter-American sphere, the Inter-American Commission on Human Rights (hereinafter, IACHR) highlighted that the region is at a turning point, characterized in large part by a widespread deterioration of public debate fueled by disinformation. Although there is currently no jurisprudence in the Inter-American system that directly analyzes disinformation on the Internet, it is possible to find some insights in contentious cases, advisory opinions, and substantive reports from the Inter-American Court of Human Rights (hereinafter, the Court) that shed light on the standards that should guide potential legal disputes on this issue. This document analyzes some of the various standards that the Inter-American Commission and the Court have developed when studying the application of Article 13 of the American Convention, which could be significant for analyzing disinformation in the region. It focuses on states’ international obligations, both to act and to refrain from action concerning disinformation, as derived from Inter-American jurisprudence. The document is based on the premise that any executive, legislative, or judicial state measure that attempts to address this issue must consider a protective view of the right to freedom of expression due to the predominant role this right plays in democratic societies. As noted by the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Irene Khan, “The right to freedom of opinion and expression is not part of the problem; it is the objective and the means for combating disinformation.” The paper will first provide the conceptual framework for disinformation. It will then analyze standards on the right to freedom of expression emerging from: (i) contentious cases of the Inter-American Court; (ii) advisory opinions of the Inter-American Court; (iii) substantive reports of the Inter-American Commission; and (iv) thematic reports of the Inter-American Commission, which, as soft law instruments, have provided the first legal reflections on the subject within the Inter-American human rights system. The development of the various standards and their application to disinformation will be organized thematically, for which eleven (11) relevant categories have been selected for study. The work also systematizes—as conclusions and recommendations—the main guidelines or directives the Inter-American human rights system provides for states in their approach to this issue.

CELE Research Paper No. 63, 42p.