NUMBER 7 JANUARY - JUNE 2007
THE CONSTITUTION AND INFORMATION*
Original Text (Spanish) PDF
I. Homage to Professor Pedro J. Frias. II. Historical outline. III. The right to information. IV. Some international aspects. V. Legal framework in force. VI. Frustrated attempts at legislating on the right to information. VII. Some constitutional guarantees of the right to information. VIII. Conscience clause. IX. Some comments.
I. HOMAGE TO PROFESSOR PEDRO J. FRIAS
I want to honor one of the most important Latin American constitutional scholars of the 20th century: Professor Pedro J. Frias, who has written an important legal work. His concept of federal systems has inspired numerous scholars who have analyzed this topic. Pedro J. Frias is a dedicated legal researcher and a distinguished professor who has built a school around his wise teachings.
In addition to this, Pedro J. Frias is a good and generous man who knows how to give of himself to others. He always academically helps whoever asks for assistance and has the corresponding academic merits.
I value my friendship with Pedro J. Frias for all its worth: almost three decades of constant dialog, the abundant benefits I have received from his wisdom and affection in difficult times. Pedro J. Frias should feel proud -though he is humble by nature- and satisfied with the life he has built and that has tendered extraordinary benefits to his family, his University, his disciples and students, the legal science, his friends, the dignity of the attorney, Argentina and Latin America.
II. HISTORICAL OUTLINE
A. The freedoms of expression, of writing and of the press were compiled, recognized and protected since the origins of Mexican constitutional law.1 Thus, Article 29 of the Elementos Constitucionales [Constitutional Elements] of 1811, drawn up by Ignacio Lopez Rayon, stated: "There shall be absolute freedom of the press for purely scientific and political issues so that the latter may observe the aim of illustrating and not attacking established legislation".2
As can be seen, religious matters were excluded in this freedom. It was the shadow of the Colony on the ideals of liberty. In its last dying breath, the Colonial past had already recognized the freedom of the press in 1810, according to a decree by the General and Extraordinary Courts of Cadiz. However, this freedom was not in effect in the New Spain.
These freedoms of expression and of the press were expressly dealt with in Articles: 371 of the Constitution of Cadiz of 1812; 40 of the Constitution of Apatzingan of 1814; 50 of the Federal Constitution of 1824; Clause VIII of the First Law of the Constitution of 1836; 9, 10, 11 and 12 of the Organic Bases of 1843; 6 and 7 of the Constitution of 1857.3
Throughout this long period, various laws and decrees on the so-called freedom of the press, as well as the presentation of reform bills and dissenting opinions on this matter, were issued.
From that period, one of the oldest articles is an example, perhaps, of the prevailing school of thought on the matter: the First Base of the Plan for the Constitution of May 16, 1823. Among the rights of the citizens mentioned: "1. That of freedom, which is that of thinking, speaking, writing, publishing and doing that which does not offend the rights of others".
From 1810 to the triumph of the Republic in 1869, constitutional documents responded to various political and philosophical concepts. However, in terms of the freedoms of expression and of the press, it is possible to find many similarities among them. With the inconveniences of generalizations, it is possible to state that the similarities were the following:
a) The freedom of expression and its most important manifestations such as the right to write and to print were recognized as one of the fundamental rights with special importance.
b) Prior censure was prohibited in many of these constitutional documents.
c) During the War of Independence and the first decades of the free Mexico, there were restrictions on those freedoms that impaired other human rights. The example par excellence was the limitations for religious reasons, "dogmatic reasons" some of these documents said.
d) These freedoms were not unlimited, but had to be compatible with the other freedoms -nowadays we would say, with other human rights-. Among those mentioned were the respect to citizens, privacy and the rights of third parties, as well as that of not disturbing the public order or instigating any crime.
e) Regulating these freedoms and rights was remitted to specific laws, some of which were issued.
B. The principal and most important debate on the freedom of the press happened in Mexico during the Constitutional Congress of 1856-1857. There were two controversial topics: a) the limitations Article 14 of the draft of the Constitution specified for said freedom: the respect of privacy, morals and public peace, and b) the oversight of a court by a group of judges that would know of the crimes of the press.4
The prevailing spirit in said Constitutional Congress was that of philosophical liberalism. The speeches were very beautiful and represented one of the high points in Mexican parliamentary debate.
Francisco Zarco stated that:
So many restrictions are odd in a section that is called the rights of man. It seems to be the commission, when it states a great truth, when it proclaims a principle, when it recognizes a right, becomes afraid, wants to erase it with a finger and therefore later establishes all kinds of restrictions.5
In turn, Guillermo Prieto said that:
If the freedom of the press is proclaimed, why clip the eagle's wings when it is going to fly high into the clouds? Why insist on stopping the flash of lightning? Why invent bonds instead of guarantees? Why place a kind of constable next to each right to keep it under surveillance, spy on it and martyrize it?6
However, Zarco himself accepted that "the good of society demands certain restrictions on the press", although these had to be very meticulous.7
This specific aspect of the corresponding article was passed by sixty votes against thirty-three.
The ideas of that Constitutional Congress on the freedoms of expression and of the press were given form in Articles 6 and 7 of the Mexican Constitution of the middle of last century. They were ratified in the present Constitution and are basically still in force in the same constitutional articles of the Mexican Constitution of 1917.
C. Article 6 of the Constitution of 1857 said: "The expression of ideas shall not be subject to any legal or administrative inquiry, unless it offends good morals, infringes the rights of others, incites to crime or disturbs public order".
Said article did not undergo any reforms while that constitution was in force and the current one incorporated it word-for-word, even with the same number.8
D. Since 1917, Article 6 of the Constitution has only undergone one amendment to add another sentence.
On December 6, 1977, a decree that modified 17 articles of the Constitution was published in the Federal Official Gazette. Among these was an amendment to Article 6, in order to add the following statement: "Freedom of information will be guaranteed by the State".
Hearings were held at the Ministry of the Interior and resulted in the so-called political reform of 1977. Regarding this matter, the difference -according to the speakers- was acknowledged between the freedom of expression as a constitutional right and the right to information as rights of the citizenry of its recipients as outlined in the model of the primacy of social interest, and that would guarantee the ideological pluralism of society.9 The State's obligation of informing the nation clearly and profusely was also manifested,10 as was the situation that existed -exists?- of a pseudo-monopolistic control of information by substantial private, national and foreign economic interests.
In the Chamber of Deputies, the relationship of the right to information and the democratic and electoral game was stressed since it is only possible for one who is informed to knowingly choose and not one who is influenced or confused. Therefore, the right to information is called for by means of the State in order to make democracy possible.11
In the opinion of the Senate commissions, the connection between this right of the citizenry and democracy was stressed as a way of life since, in dictatorial regimes, the community is given manipulated, incomplete information that is conditioned to the interests of certain groups or persons, or else the possibility of knowing the truth in order to freely participate in political life is hindered. In the debates of that legislative chamber, it was reiterated that the right to information implies overcoming the exclusively profit-driven concept of the means of communication.12
Since 1977, as I will mention below, there have been many attempts to regulate the last sentence of Article 6 of the Constitution in order to make the guarantee or human rights it embodies effective. This has not been attained because under the pretense of defending the "freedom of expression", certain political, economic, trade union and personal interests have had enough power to bring those projects to a standstill. Those most affected by this is Mexican society. Those who have mainly benefited from this are the interests mentioned above. Once again, the private interests of a few are placed above those of society at large.
III. THE RIGHT TO INFORMATION
A. In 1948, with the Universal Declaration of the Rights of Man, the fundamental guarantee of the right to information is born.
The right to information is the fundamental guarantee that every person has: to seek, receive and impart information.
From this definition -which is derived from the Universal Declaration of 1948- the three most important aspects can be inferred contained in said guarantee:
The right to seek information,
The right to impart, and
The right to receive information.
The right to seek information includes the right i) to have access to public archives, records and documents and ii) to decide which means is read, heard or watched.
The right to impart information includes the i) freedoms of expression and of the press and ii) the composition of communication societies and companies.
The right to receive information includes the right i) to receive truthful and timely information, ii) which should be complete, that is, the right to have all news reported and iii) have a universal nature, that is, that information is for all people without exclusion.13
B. Of course said rights, freedoms and rights cannot be without limits and must be compatible with other human rights to prevent the violation of the rights of third parties and of society itself.
The right to information is the freedom of expression that extends its scope to perfect itself, to define the rights that truly make it effective, and to incorporate aspects of the scientific and cultural evolution of our times that need to be taken into account in order to strengthen it, but essentially to guarantee truthful and timely information to society as an indispensable element of a democratic and plural State.
In other words, the right to information includes a series of rights and freedoms recognized in universal and regional declarations of human rights since 1948 and in Constitutions. Furthermore, it deals with guaranteeing its effectiveness, strengthening them and extending them. Therefore, new institutions and principles were created. It can be thought that it is something like a first circle that contains the freedom of thought, a second circle that encompasses the first and contains the freedom of expression, a third circle with the freedom of the press and a larger fourth circle, around the other three, which is the right to information.
C. The right to information includes some freedoms that have a purely individual nature and others with a social one. Among the first, we can mention the freedoms of expression and of the press. Among the second are the right of readers, listeners and spectators to receive truthful, objective and timely information, as well as access to public documents. However, the right to information permeates all its elements and mechanisms with high social content.
D. Thus, the right of information can be defined as the set of legal norms that regulate and protect the freedoms, guarantees, rights and limitations that make up the right to information. In other words, the right to information is the object studied in the right of information.
This young field does not disregard aspects that, without being legal in nature, are very important in the field of information, such as those regarding codes of ethics and the power that many owners of the means of mass communication accumulate.
IV. SOME INTERNATIONAL ASPECTS
The right to information forms part of the principle international declarations, conventions and covenants.
Article 19 of the Universal Declaration of Human Rights, which I have mentioned above, is the starting point for this new international school of thought.
Article 19(2) of the International Covenant of Civil and Political Rights of 1966, states: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice".
The content of Article 13(1) of the American Convention on Human Rights of 1969, which entered into force in 1978, is very similar to the article transcribed in the previous paragraph.
The Universal Declaration of Human Rights of 1948, which was the result of a resolution of the General Assembly of the United Nations, is currently part of international positive law, an aspect that is no longer debated.14
In 1980, Mexico ratified both the American Convention and the International Covenant.15
The first part of Article 133 of the Mexican Constitution of 1917 states that: "This Constitution, the laws of the Congress of the Union that emanate therefrom, and all treaties that have been made and shall be made in accordance therewith by the President of the Republic, with the approval of the Senate, shall be the supreme law of the whole Union".
This paragraph contains the principle of constitutional supremacy and the hierarchy of norms within the Mexican legal system. For the aims of this essay, I am interested in stressing that according to the Mexican Constitution, the international treaties ratified by Mexico and that are in agreement with the Constitution, are part of Mexico's internal legal system and as such are applicable in national territory.16
Recently -on December 16, 1998- Mexico recognized the contentious jurisdiction of the Inter-American Court of Human Rights.17
The above is very important because Articles 6 and 7 of the Mexican Constitution should be interpreted according to the new schools of thought for human rights contained in the mentioned international instruments and in the jurisprudence that emanate from them. They are, I repeat, part of Mexico's internal legal system. The right to information in Mexico cannot be solely observed through the norms issued by the Mexican Congress, but must also be completed with those contained in the international instruments that Mexico has ratified.
The recent recognition Mexico has made of the contentious jurisdiction of the Inter-American Court of Human Rights is very important for the protection and defense of all human rights in Mexico because its fundamental jurisprudence comes to extend this protection -especially in terms of the right to information- and because it will be possible to turn to this jurisdiction -complying with the requirements of the case- when the norms and legal interpretation of the above-mentioned American Convention is not respected internally. Thus, the defense of the right to information has notoriously broadened in Mexico.
V. LEGAL FRAMEWORK IN FORCE
A. The right to and of information is regulated in Mexico mainly -not in its entirety- by the following provisions:
a) Articles 6 and 7 of the Constitution.
b) Ordinary laws and norms among which it is possible to mention:
- The Law of the Press.
- The Federal Radio and Television Law.
- General Means of Communication Law.
- Federal Cinematography Law.
- Federal Telecommunications Law.
- Publication and Illustrated Magazine Regulations.
c) The international treaties ratified by Mexico according to the provisions contained in Article 133 of the Constitution.
d) The legal decisions in the internal and external spheres. With the acceptance of the contentious jurisdiction of the Inter-American Court of Human Rights, it is expected that they will play an important role in protecting and defending the right to information.
B. This legal framework is outdated in certain aspects -but much better than it seems at first glance- for properly protecting the right to information, a statement that is especially certain in terms of ordinary norms. One example -but the most important one- will instruct us on it: the Law of the Press of 1917.
This Law was issued by Venustiano Carranza in April 1917 through the use of extraordinary powers to legislate. This law clearly stated that it would remain in force "whilst the Congress regulates Articles 6 and 7 of the Constitution". It is a transitory and provisional law while Congress legislated on this issue. Carranza stated the causes for which he was issuing that Law in detail. His concepts were very exacting. I could say that Carranza's idea was that for the good of the country it was necessary to establish some of the rules of the game because the legal void benefited no one and harmed everyone.18
However incredible this may seem, there has been no legislation on this since 1917 and the Law of the Press is still in force, exactly as the Mexican Supreme Court of Justice has correctly recognized it.19
The Law of the Press is completely outdated and at variance with the development Mexican society and the means of mass communication. However, the Supreme Court is right in reaffirming its legal effect. Deep down, it is exactly the same as Carranza's argument: a legal void would be worse since it brings about the domination of the strongest and foresees chaos encroaching on social peace.
C. In Mexico, the practice of individuals and lawyers going to court in order to make use of their rights derived from the right to information or to determine exactly the compatibility of this right with others, such as the right to a private life, does not exist.
The reasons behind this attitude are many: the deficient legislation on this matter which many of the cases presented have not done well, the lack of lawyers specialized in this issue, its politicization which has become controversial, the economic cost of a trial and -last, but not least- that the individual faces one of the greatest powers of our times with very little protection.20
However, there are some important court decisions that come from collegiate circuit courts, though still on general aspects such as the State having the obligation to protect the right to information and should therefore not hinder the dissemination of ideas through means of mass communication nor become the custodian of their quantity or quality. Another ruling ratifies the inalienable right of individuals to demand information.21
VI. FRUSTRATED ATTEMPTS AT LEGISLATING
ON THE RIGHT TO INFORMATION
A. In view of the panorama described, the only logical thing would be to update the legislative framework and to have cases on this matter presented so that the courts could examine them and interpret the laws, and to have precedents and jurisprudence established. As a general rule, this does not happen.
In Mexico, when the right to information was included in the Constitution in 1977, debate has been growing on whether to legislate on matter, whether the regulatory laws of Article 6 of the Constitution on this should be issued. This debate is similar to that which has already taken place in several and various countries.22 There is nothing new under the sun. The only difference is that in Mexico we are behind in this respect by at least forty years.
There have been several attempts at regulating Article 6 of the Constitution since the reforms of 1977. So far, all of them have failed. I will set forth the first and last of them.
B. The Coordinating Office of Social Communication for the Presidency headed by Luis Javier Solana during the Jose Lopez Portillo administration brought together an extensive interdisciplinary group of specialists that carried out an extensive and voluminous study which served as the basis for drafting a bill to regulate Article 6 of the Constitution.
A summary of this project was published -by one of the constant newspaper leaks- by Proceso magazine on September 28, 1981. Immediately, criticism of the project was extremely harsh. Some 475 newspaper articles were written, most of them with old-fashioned virulence. One example of this was the Café Político column of El Heraldo on September 29th, one day after Proceso's publication, that stated: "The project... drafted by foreign experts… insolently contravenes the Constitution and offers ominous prospects for the freedom of expression".
There were some means of mass communication and journalists that did agree with this regulation, but they mostly kept silent. The authors of the bill -except for one- did not defend it.
Some political parties of the opposition also agreed with the project and said so, but weakly.
The debate continued. On October 14, 1981, President López Portillo gave a speech in which he really leaned towards not legislating on this matter. Proceso magazine thought the debate had ended because the political decision of forgetting this project had been taken and everything indicated it was so. However the El Día newspaper continued to insist on the need for such a regulation.
PRI presidential candidate Miguel de la Madrid, Solana and Deputy Fidel Herrera, the president of the Commission de Cine, Radio y Television of the Chamber of Deputies, insisted that it should be legislated. During December and January, a truce was agreed upon. In February 1982, Solana was dismissed from his position. It was more than clear that the federal Executive Branch would not send any bill regulating said matter to Congress for consideration.23
Thus, the first attempt to have a regulatory law was frustrated. It was a pity because the project was a good one and a good starting point for discussion in Congress, as well as to improve and surpass it.
C. The LVI legislature of the Chamber of Deputies created the Special Commission on Social Communication in February 1995. The main purpose of this commission was to present bills to update legislation on this matter. The real results were almost null, but some documents and preliminary drafts were drawn up.
The LVII legislature of that Chamber reconsidered the work carried out by its predecessors, whose initiatives in the matter were considered bills that had not been scrutinized by any legislative commission.
On May 26, 1998, the federal Executive and Legislative branches established a legislative agenda made known to the federal congress of the time. The issue of means of mass communication was included in this agenda.
The Chamber of Deputies RTC Commission studied and reviewed the bills presented to it and again called upon a wide range of institutions, media personalities and specialists to expound their points of view. An internal seminar and two international conferences on the matter were organized.
On June 17, 1998, this commission took the decision to review the three existing bills. In doing so, on September 10th, by unanimous decision of the Commission, a sub-commission was formed to review the bill for the Federal Law of Social Communication. This sub-commission was made up of nine deputies, three from each of the main political parties: the PRI, the PAN and the PRD. When 60% progress had been made in reviewing said bill, attacks from various newspapers, radio stations and television stations began "presenting the initiative that had been presented a year and a half before as a novelty".24
Once again, an extensive debate on this issue was carried out. Several means of mass communication, journalists, analysts, academic institutions, labor unions and non-governmental organizations supported the idea of legislating on this issue. The RTC Commission published a book entitled La reforma de medios. Voces en torno a la inciativa de Ley Federal de Comunicación Social [The Media Reform. Voices on the Federal Law of Social Communication],25 which is a testimony of this new debate.
The result: once again the process to legislate on means of mass communication was brought to a standstill.
D. The resistance in Mexico against legislating matters of communication or the right to information is not unique to Mexico, but has also presented itself in other nations, because more than the private interests that some mass media want to protect -one should never generalize- and that are sometimes unspeakable, there is a real problem because, as I have already pointed out, it is an especially difficult and complex matter that has historically oscillated between two extremes: libertinism on one hand and censure and repression on the other. Freedom of expression and its present-day manifestation as the right to information need to be completely guaranteed, protected and made consistent with other human rights. Censure, under no circumstance. Repression, never. But libertinism, neither.
Freedom of expression and the right to information. A thousand times yes, with responsibility, ethics and respect towards the other human rights.26
In Mexico, those who have violently opposed legislating on this matter -which has lately lost some supporters- have primarily argued that this legislation will undermine freedom of expression and democratic and plural life. They argue that legislation would take the form of a "gag law"; it would run the risk of canceling radio and television concessions; it would aim at controlling and repressing means of mass communication.
The above arguments are made both in good faith and conviction, and in bad faith and to defend certain interests.
In good faith. There are media personalities that are sincerely convinced of an old idea: that regarding means of mass communication, the best law is the one that does not exist. They are concerned that the law could be used to impair the legitimate rights to and of information. Most of them do not know much about what has happened in other parts of the world, especially in more advanced countries.
Moreover, some radio and television concessionaires are concerned that this law could be the excuse for canceling radio and television concessions after having invested large amounts of money in said stations. They have been intentionally frightened into opposing any bill. Therefore, they prefer the status quo that keeps them in a vulnerable position before the Executive Branch, to possible legislation that would guarantee their rights. It seems that they are guided by the old saying "a bird in hand is worth more than ten in the bush" on this point.
In bad faith. They defend personal interests and do not want the current system that benefits them with libertinism, corruption, legal irresponsibility and ethics to change. Simply look at some journalists or editorialists -I repeat, one cannot generalize- the life styles they lead: residences that millionaires from other countries would envy, luxury cars, spectacular parties, Pharaonic trips. How is it possible to live this way on their taxed income? They have self-appointed themselves the defenders of the "freedom of expression" in Mexico. This is the same situation that happens -and that unfortunately has become generalized in Mexico- of the thief that cries: "catch the thief". The highest point of cynicism is that some of these super-thieves use this statement in a critical sense, leaving an ironic aftertaste. Indeed, it is something that must be lived in order to experience it.
E. On this point, it is indispensable to better know more about reality and comparative law, and to objectively analyze the evolution of the right to information in more advanced countries with consolidated democratic systems. Democracy itself is strengthened when the rights, freedoms and obligations of the means of mass communication are clear-cut and there is no confusion whatsoever.
I have no doubt that Mexico will some day have good and suitable legislation on the right to information to strengthen and protect the freedom of expression, and for it to be consistent with the respect to other human rights, but essentially to strengthen the Mexican democratic system.
In this case, the same words Francisco Zarco used when the article on the freedom of cult was declared "without the possibility of voting on it" in the Mexican Constitutional Congress of 1856-1857, can be applied. "The issue is pending. A matter of time! Sooner or later the principle must be conquered and it has already had a victory by only being discussed".
And so it happened. It is not possible to go up against history. It is not possible to use democracy, ethics, society, or law as a defense to precisely undermine them and for the interests of a few to prevail over those of all the rest. Readers, listeners and spectators, we also have rights and freedoms, mainly in receiving truthful and timely information that respects the public's human rights.
VII. SOME CONSTITUTIONAL GUARANTEES
OF THE RIGHT TO INFORMATION
A. For decades in the 20th century, Mexico was a country that distinguished itself for its avant-garde legal tendencies, for its openness to new ideas and for creating institutions that had a positive influence on the world and especially on Latin America. The most significant example is found in the field of social rights and in the constitutional declaration of these rights in the Mexican Constitution during the second decade of the last century.27
After the Second World War, legal processes and institutions underwent vertiginous advances to face the serious problems that many countries in Europe, both winners and losers, faced. It was necessary to strengthen the protection of human rights, imparting justice, agile and cost-effective procedures to attain the defense of fundamental guarantees.
The ideas and institution already existed, but after the World War II, more countries began to accept them. This happened, for example, with the constitutional courts, the Councils of the Judiciary, the ombudsman, a better defense of human rights, proportional representation and electoral guarantees. Mexico has gone on to accept many of these institutions with difficulty, delays and only partially. It seems that it is difficult to incorporate ourselves, with conviction, to the important contemporary legal schools of thought. It has even been the case that after Mexico has accepted an institution like the Council of the Judiciary, it later retracts itself after years and the institution is reduced to dust, though out of prudence o pity only the letterhead is left, since after a counter bill, its characteristics are far from those that define a Council of the Judiciary.28
In other words, today Mexico is found in one of the last cars on the legal train of the last decades of the 20th century, along with most Latin American countries. This statement especially applies to the matter of the right to information.
In view of this, I will examine some examples that help in grounding the above statement.
B. Journalists' privilege is regulated in the most diverse countries and in different ways. Ernesto Villanueva alludes to the countries that i) widely regulate it: Argentina, Austria, Bolivia, Brazil, Cape Verde, Colombia, Estonia, Finland, France, Germany, Haiti, Indonesia, Italy, Lithuania, Macedonia, Malaysia, Mozambique, Nigeria, Paraguay, Peru, Portugal, the United States -in some states-, Uruguay, Venezuela and Yemen; ii) that nominally regulate it: Albania, Andorra, Belarus, Jordan, Moldavia, the Philippines, Russia, Spain, Sweden and the United Kingdom, iii) and to a limited degree: Algeria, Egypt and Ecuador.29
This right is also found constitutionally in: Argentina -where it also refers to the right to reply and to rectification-; Brazil, Cape Verde, Colombia, where it also refers to the access to information; and Spain.
C. The access to information is also now found in several countries as a constitutional guarantee, as stated in the previous paragraph.
In the United States of America, it began to develop in 1946. Twenty years later, the Freedom of Information Act was promulgated. This act designs a balance between public interest in accessing documents and the private interest of privacy.30 This law was amended in 1974. The US Supreme Court of Justice has ruled on cases of special importance.
This right is recognized and regulated in countries such as Sweden and Finland (1951), Denmark and Norway (1970), Germany (1976), Holland (1978), France (1979), Canada (some provinces in 1980).31
Thirty Constitutions currently guarantee this important right.32
D. The right of reply in Mexico is very badly regulated in the venerable Law of the Press of 1917, even though Mexico has ratified Article 14 of the American Convention on Human Rights, which is more precise and protective, and is therefore part of Mexican internal law.
Twenty-two Constitutions recognize this essential guarantee.33
This right of reply, or however else other legal systems may call it, is found embodied in Article 1 of the Spanish Organic Law 2/1984, which states that "any person, individual or legal entity, has the right to rectify the information divulged, by any means of social communication, on acts that refer to him, that he considers inaccurate and the dissemination of which can cause him harm".
From this article, I wish to highlight two aspects: it refers to any means of social communication and not only the traditional one of the written press and refers to information he "considers inaccurate". Therefore, the injured party is not obligated to prove the inaccuracies.
On the other hand, there are countries, like France, where the right to reply acquires certain distinct aspects depending on the means of mass communication it is dealing with.34
E. The conscience clause will be dealt with below with more precision. I have opted to study it a bit more in depth than the other examples mentioned on the institutions of the right to information because it still has a way to go in its evolution and because it is completely unknown in the Mexican legal system.
VIII. CONSCIENCE CLAUSE
A. The conscience clause is the right the communicator has of terminating his work relationship with the communication company and receiving indemnification equivalent to at least that of dismissal by at the employer's discretion, when a notable change takes place in the company's ideological orientation or when the company affects his reputation or moral dignity.
B. The precedents of this clause is found in the norms of Austria (1910), Hungary (1914), Germany (1926), Czechoslovakia (1927), and in Italian jurisprudence since 1901. It is also found in the "International Labor Office Report" of 1928 on the labor conditions of journalists.
However, in 1935, France is the country that defines this institution by including it in its Labor Code -Article L.761.7- and with the approval of the Statute of Journalists through a law passed in March of that same year. With these provisions, France became the point of reference for studying, understanding and even criticizing the conscience clause.
We find precedents at a constitutional level in Sweden in 1976, Portugal in 1976 -though not precise ones- and especially in Spain, in its Constitution of 1978, Article 20.1.d) that recognizes said clause as a fundamental right. In Latin America, Paraguay is the country that embodied this right to the highest legal position in 1992.35
Of course it is right to include this clause, as well as other central aspects of the right to information in the State's supreme laws since nowadays the right to information constitutes one of the bases for a democratic State. However, countries that do not contemplate a new Constitution, in order not to reform the one in force, should include these institutions in its ordinary legislation, which can be just as efficient for these aspects as if they were contained at a constitutional level. This is the experience of comparative law.
C. Spanish Professor Marc Carrillo wrote a few lines that summarize the ends that are sought through the conscience clause: safeguard ideological freedom, the right of opinion and the journalist's professional ethics.
Marc Carrillo has a point, but as it even can be inferred from his classic essay on this topic, there are other kinds of reasons that transcend the journalist's personal rights and freedoms.
The reasons for having a conscience clause are principally:
The communication company is generally private in nature, but fulfills a function of public interest simply by providing truthful and timely information. The law must ensure compliance to this is observed.
Due to the communication company's interest in being profitable, the communicator is often pressured into providing news quickly, sometimes without enough time to verify it and without the necessary informative precision.
The communicator's special influence on society in the make-up of public opinion.
The right to information is one of the pillars of a democratic society. It is a right that goes beyond individual guarantees and primarily exists to reinforce them.
The communicator's exercise of the right to information is tied in with public interest, with the interest of society.
The communicator, on exercising his profession, should not be intellectually or morally forced, but should enjoy freedom.
The communicator should not be subdued by the owner nor by the director of the media company. Nor should his work be hindered by orders that are detrimental to truthful, objective and timely information. And lastly,
The communicator's dignity must always be respected.36
D. In France, any labor contract with a professional journalist must contain a conscience clause.
The collective convention of journalists points out that while he has the right to freedom of opinion, it should not under any circumstances harm the communication company he works for. As a cross-entry to this obligation - states Franceschini - the journalist is granted the conscience clause.37 I believe this author forgot all the reasons of public and social interest that form its main foundation, without forgetting protection to the dignity of the journalist.
Article L.761-7 of the French Labor Code points out three premises for the journalist to be able to terminate his labor contract within the framework of said clause:
Assignment of the newspaper or magazine to another owner,
Cessation in the publishing for any reason whatsoever, and
Significant change in the character or tendency of the media company, should said change go against the journalist's honor, reputation or moral interest in general terms.
Generally, in cases a) and c) indemnification is obtained and if not, in the case of c) the premises referred to in this clause must be proven in court.38 The termination of a contract is ascribable to the owner or director of the communication company.
The first two cases or premises are of an objective nature. The first premise has not actually posed any major problems of interpretation although doctrine has sometimes questioned it.
The second premise highlights a labor law of a general nature, except in cases of force majeure, an exception that does not apply to journalists. In 1935, this second premise was very important because at that time closing of a company was not a cause for labor indemnification.
It is really the third premise that makes up the true conscience clause and presents problems of interpretation.
To exercise it, it is necessary to fulfill two conditions:
A significant change in the newspaper or magazine's tendency, that is, a modification that is tangible enough that it is not only perceived by the communicator, but also by the public. One example of this significant change is the shift of the newspaper or magazine's political slant.
The onslaught of the journalist's honor, reputation or moral interest. This demand is a subjective appreciation that is difficult to assess and depends on each specific situation. Generally, French jurisprudence deems this requirement proven if it has really made the significant change referred to above. It is enough to prove not injury, but an eventual harm, the possibility of suffering moral damage.
In the beginning, this conscience clause was confined to political communicators, but French jurisprudence has extended it to encompass all professional journalists.39 Furthermore, Article L.761-2 of the Labor Code establishes three other requirements for its implementation:
That journalism be his main, regular and remunerated profession.
From which the bulk of his income for living is obtained, and
That he work in a communication company.
The professional journalist is assimilated: the redactor-translator, the typist-redactor, the editor (ex proofreader), the artist and the graphic reporter.40
E. The premises of French legislation on the conscience clause are now completely insufficient. Remember that this legislation is from 1935 and that it was born more out of a concern for journalists' labor protection than for the right to information, which is the focus held by Constitutions and the laws that regulate it.
The conscience clause established in the Spanish Constitution was regulated on June 20, 1997, when the Official Gazette of the Spanish State published the Organic Act Concerning the Conscience Clause of Information Professionals.
Before this Organic Law, under the precept of Article 53(1) of the constitution itself, the rights and liberties in the second chapter of the present Title I -Guarantees and Fundamental Rights- are binding on all public authorities. As a result, these rights -among which is the conscience clause- are directly applicable without the need for a corresponding law. This provision should be kept in mind in Mexico for the interpretation of Article 6 of the Constitution.
Over a period of twenty years, various parliamentary groups presented four bills for regulating the conscience clause to the Spanish Congress of Deputies. These bills have interesting grounds for the application of said clause on the communicator's side. These grounds are related to the third French premise. Among them, we can mention:
Refusing to perform communicative activities that go against the ethical principles and information professionals or fundamental aspects of their convictions.
If the journalist's work is substantially modified, the journalist cannot publish under his name or pseudonym without express and prior consent.
When working conditions change, implying serious damage to the journalist's professional and deontological integrity.
Unfortunately, the Organic Law of 1997 did not comprise all of these ideas.
Marc Carrillo points out additional ones:
The arbitrary transfer from the information section or means of communication if the publishing house is the owner of a chain of publishing houses.
Media company decisions that by nature could undermine the communicator's professional interests, causing him to suffer coercion.41
This last motive is very broad and can cover a variety of situations that escape a list of motives. A paragraph of this kind will always be sound in the law. I can think of other grounds, such as:
A report or editorial that the communicator has not done and that is presented in his name without his consent, regardless of whether he agrees with the content; or worse still, if he is not.
Instructions in the sense that he back or attack certain institutions or persons.
Orders to illegitimately or illegally come into possession of documents or information.
The conscience clause is an important institution of the right to information, although it should go on perfecting and overcoming its shortcomings. In certain cases, the communicator's use of the conscience clause can be considered a blessing to the communication company. Since for an amount of money that generally does mean much to the company, the company will get rid of an "uncomfortable" or "scrupulous" communicator that inconveniences that company and represents an example the company owner or director does not want.
On the other hand, for the communicator, the clause in question helps him to redeem his honor and professional ethics, but in exchange for losing his job, especially in these difficult times in the job market.
It is undoubtedly necessary to rethink the conscience clause to strengthen it and for it to better and better comply with the ends for which it was created. Its existence in itself is an important step in shaping the right to information.
In Mexico, the conscience clause is little known, even among the communicators or journalists. It is just beginning to be studied by some academics. Of course, there is no norm whatsoever on this issue and, as far as I know, no labor contract of a communication company includes one.
Mexico is greatly lagging behind in terms of right to information is immense. A comprehensive democracy does not and will not exist if the right to information is not fully guaranteed, and with it, the rights and obligations of the readers, listeners and spectators, the communication companies and information professionals. In a democratic society, no one can be irresponsible and suppress the rights of others.
IX. SOME COMMENTS
More than leading to conclusions, the aspects developed in this essay on the right to information in Mexico take me to make some observations in the hope of contributing some realistic and practical suggestions to stimulate and strengthen the right to information in Mexico.
A. Mexico is currently located in the circle of the freedom of expression and has not been able to move into that of the right of information that protects a series of guarantees in order to really make freedom of expression truly effective for the people and society of our times. The right to information is found in various international instruments, in Constitutions and in the laws of countries with a stronger democratic system.
Mexico was an avant-garde country in terms of legal institutions. Nowadays, it is even difficult for Mexicans to accept new schools of legal thought. Even though there are many examples of this, one that stands out is all that deals with the right to information, a field in which its institutions and principles are plainly unknown or are found legislatively speaking taking its first steps, badly regulated or not regulated enough.
B. Many of the principles of the right to information are human rights -or also called: fundamental rights- and as such, new Constitutions include them.
In Mexico, the constitutional basis already exists and is more than enough. It is not expedient to continue amending the Mexican Constitution more often. The institutions and principles of the right to information can well be included in one or several regulatory laws and organic laws of Article 6 of the Constitution.
C. The situation currently found in Mexico in terms of the right to information -very old legislation that is not enough and is remiss in many aspects- does not benefit anyone. Not society, communication companies or communication professionals. On the contrary, it is in everyone's best interest to receive truthful and timely information, especially in the case of society and each individual reader.
Although legislating on the right to information is a politically difficult and delicate problem and it has been so in the most diverse countries, in Mexico today, the situation should not be as thorny. We have the examples of the more democratic countries of Western Europe.
The worst policy on this is to stop doing something and letting it go by because then a few communication companies -those that are ethically repugnant- and some communicators -the corrupt ones and liars- are able to impose their personal interests on those of society at large. At the same time, they vilify the entire sector of the means of mass communication. Therefore, in many countries, they begin losing credibility, as pointed out in studies and surveys.42 With this basis, I have stated that the having the rules of the game -legal norms- will also benefit the media and communicators.43
D. Mexico's legal framework for the right to information is deficient. Of course it is, but much less than what is generally believed due to the international treaties, agreements, covenants and conventions Mexico has ratified and form part of Mexico's internal legal system.
Furthermore, the right to information is a constitutional guarantee that has not been regulated. It is true, but when a human right is included in a Constitution, it is not possible to annul it with the excuse that the Legislative Branch has not fulfilled its obligation because it would be as if the Legislative Branch were on a lower rank than one of the established branches. It would be as if the constitution were inferior to the law.
There is an isolated Supreme Court opinion from 1985 -Second Chamber- that goes against my previous statement, but it also goes against the main schools of thought in the comparative constitutional law of our times and I trust it will be modified.44
As a result, those norms -treaties and constitutional provisions- as well as the corresponding principles should allow for the proper jurisdictional defense and protection of the right to information. The real problem in Mexico lies elsewhere: lawyers and judges do not use the norms and principles that some can argue and others apply. I repeat: Article 6 of the Constitution specifically recognizes the right to information and the international treaties Mexico has ratified.
Moreover, there is the attitude of the person whose rights have been violated and harmed. Mexico is not in the habit of defending the rights and freedoms of expression, of the press, of information, of private life or honor through jurisdictional venues. The reasons are many: the economic cost of a trial, the time needed, the ensuing scandal and that a lone individual stand up against a powerful company or trade union, which are true powers, just as I have stated, and among the strongest in our times. The campaign against the plaintiff can end up more damaging that the original violation of his rights and freedoms.45 Then, the damage and harm are not done exclusively to the individual whose rights have been violated, but to all of society and its desire to perfect the democratic system.
How unfortunate the society in which truthful and timely information with ethical sense and responsibility does not exist as a general rule. How unfortunate the society in which a person or group of persons is legally irresponsible. This society will then have a weak and insufficiently democratic system.
E. In summary, I believe Mexico can take important steps toward strengthening its right to information. Among them, I list the following:
For this right to be better known. It is necessary to discuss it more. Universities could organize discussions, round tables and seminars to make its scope known.
Begin creating the practice of getting people whose rights and freedoms are violated in these aspects to go before jurisdictional venues to defend themselves and for non-governmental organizations to back those in need of legal, economic or social assistance.
That lawyers assert before the courts the scope of Article 6 of the Constitution in that it states that "the right to information shall be guaranteed by the State", as well as the international treaties ratified by Mexico.
That the judges begin to establish legal precedents and that the most important cases may reach the Supreme Court of Justice. Courts can and should play an extremely important role in defending these rights and freedoms and all human rights in general.
That when necessary, and after having exhausted all the internal remedies, to turn to international bodies, such as the Commission, and if necessary, the Inter American Court of Human Rights, and
As has happened in other countries, the corresponding legislation should be issued with a "legal margin" which consists of court rulings and jurisprudence.
Of course, I would rather it be legislated once and for all and on all the aspects on the right to information46 and I have so stated. However, after reflecting on the frustrated attempt to legislate it in 1998, I think it would be more realistic to gradually legislate those aspects as judges apply them and interpret the corresponding norms, as well as other matters on which consensus is attained, as in the case of the access to public documents.
The only inadmissible thing would be to stop taking action, the legal paralysis, the scorn towards the protection of human rights and placing some rights on an inferior level than others.
It is necessary to know how to defend human dignity in its most diverse aspects. It is necessary to know how to defend the democratic system and the rights, freedoms and guarantees that it implies and protects.
* Translated by Carmen Valderrama Ramos.
** Researcher at the Legal Research Institute.
1 I wish to thank the significant comments Drs. Sergio López-Ayllón and Ernesto Villanueva made on this essay. Any error this essay may have is the sole responsibility of the author.
2 Derechos del Pueblo Mexicano. Antecedentes, origen y evolución del articulado constitucional, Mexico, Camera de Diputados del Congreso de la Union, 52nd Legislature, 1985, Vol. II, Articles, pp. 6-20.
3 Castaño, Luis, La libertad de pensamiento y de imprenta, Mexico, UNAM, Coordinación de Humanidades, 1967, pp. 18-42.
4 Cueva, Mario de la, "La Constitución de 5 de febrero de 1857", El constitucionalismo a mediados del siglo XIX, Mexico, UNAM, 1957, Vol. II, pp. 1290-1292.
5 Zarco, Francisco, Crónica del Congreso Extraordinario Constituyente 1856-1857, Mexico, El Colegio de México, 1957, p. 311.
6 Ibidem, p. 314.
7 Gómez de Lara, Fernando and others, Estudio sobre la libertad de prensa en México, Mexico, UNAM and the Constitutional Court of Guatemala, 1997, p. 27. Francisco Zarco's ideas are very clear on this. See op. cit., pp. 298-301 and 310 and 311: "…on voting against Article 13, I have been far from opposing the principle that expressing ideas should never be subject to legal or administrative inquiries… Do you want restrictions? I want them too, but prudent, fair and reasonable ones… I wish that instead of speaking vaguely on morals, obscene writings would be prohibited… Instead of speaking vaguely on public peace, I would like it to be decisively said that writings that directly incite rebellion and disregard of the law be prohibited…".
8 Tena Ramírez, Felipe, Leyes fundamentales de México. 1808-1964, Mexico, Porrúa, 1964, pp. 61-69.
9 Reforma Política I. Gaceta Informativa de la Comisión Federal Electoral. Audiencias públicas, Mexico, Federal Electoral Commission, 1977, Vol. I, with the participation of Humberto Lira Mora, p. 243.
10 Reforma Política I, op. cit., with the participation of Jaime González Graf, p. 286.
11 Reforma Política III. Gaceta Informativa de la Comisión Federal Electoral. Reformas a la Constitución, Mexico, Federal Electoral Commission, 1978, Vol. III, with the participation of Eduardo Andrade Sánchez, p. 47.
12 Carpizo, Jorge, Estudios constitucionales, Mexico, UNAM-Porrúa, 1998, p. 360.
13 Escobar de la Serna, Luis, Manual de derecho de la información, Madrid, Dykinson, 1997, pp. 54-60, 380 and 381. López-Ayllón, Sergio, El derecho a la información, Mexico, Miguel Ángel Porrua, bookseller-editor, 1984, pp. 160 and 161. Villanueva, Ernesto, Régimen jurídico de las libertades de expresión e información en México, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 1998, pp. 34-36.
14 La conquête des droits de l'homme. Textes fondamentaux, Paris, Le Cherche-Midi, Editeur, 1988, pp. 139-147.
15 See Villanueva, Ernesto, op. cit., p. 21; López-Ayllón, Sergio, Derecho de la información, Mexico, UNAM-McGraw-Hill, 1997, p. 13.
16 Carpizo, Jorge, op. cit., pp. 16-24. In terms of the last opinion held by the Supreme Court of Justice, it was established when sitting en banc ruled on the Amparo in Review 1 475/98 -National Air Traffic Controllers Union- on May 11, 1999, which textually states: "INTERNATIONAL TREATIES ARE HIERARCHICALLY PLACED ABOVE FEDERAL LAWS AND BELOW THE FEDERAL CONSTITUTION. In doctrine, the question regarding the hierarchy of the norms of our law has persistently been posed. It is unanimous that the Federal Constitution is the fundamental norm and even though in principle the expression "…(they) will be the Supreme Law of the entire union…" seems to indicate that not only the constitution is supreme, the objection is overcome by the fact that laws must emanate from the Constitution and be enacted by a legally established body, such as the Congress, and that treaties must be in accordance with the constitution. This clearly indicates that only the Constitution is the supreme law. Jurisprudence and doctrine have found different solutions for the problem regarding the hierarchy of other norms in the system, among which the following stand out: supremacy of federal law over local law and the same hierarchy of both, in their open and honest variations, and with the existence of "constitutional laws", and the one in that supreme law is the one deemed constitutional. Nonetheless, this Supreme Court of Justice believes that international treaties are found on a second level, immediately under the Constitution and above federal and local law. This interpretation of Article 133 of the Constitution comes from the fact that these international commitments are assumed by the Mexican State as a whole and they commit all its authorities before the international community. This explains why legislators have empowered the President of the Republic to sign international treaties in his role as Chief of State and likewise, the Senate is involved as a representative of the will of the federal states and by means of its ratification binds its authorities. Another important aspect to consider in this hierarchy of treaties is the one regarding the fact that in this matter there is no limitation of competence between the Federation and federal states. That is, federal or local competence is not taken into account in the contents of the treaty, but that by express mandate of Article 133 itself, the President of the Republic and the Senate can obligate the Mexican State in any matter, regardless of the fact that for other effects it may be under the jurisdiction of the federal states. As a result of the above, the interpretation of Article 133 leads one to consider federal and local law in third place within the same hierarchy in view of that which is set forth in Article 124 of the Constitution, which orders that "The powers that are not expressly conceded by this Constitution to federal officials are understood to be reserved to the States". It is not overlooked that in its previous structure, this Supreme Court had adopted a different position in opinion P. C/92, published in the Gazette of the Weekly Federal Court Report, number 60, corresponding to December 1992, page 27, under the heading: "FEDERAL LAWS AND INTERNATIONAL TREATIES HAVE THE SAME NORMATIVE HIERARCHY". However, this Court sitting en banc deems it fitting to discard said criteria and take on the one that considers treaties to have a higher hierarchy even above federal law".
17 García Ramírez, Sergio, "Admisión de la competencia contenciosa de la Corte Interamericana de Derechos Humanos. El caso de México", México y las declaraciones de derechos humanos, Héctor Fix-Zamudio (coord.), Mexico, UNAM-Inter-American Court on Human Rights, 1999, pp. 143-155, See Fix-Zamudio, Hector, México y la Corte Interamericana de Derechos Humanos, Mexico, Comisión Nacional de los Derechos Humanos, 1999, p. 161.
18 Carpizo, Jorge, "Derecho a la información, derechos humanos y marco jurídico", Liber Amicorum Hector Fix-Zamudio, San Jose, Costa Rica, Inter-American Court of Human Rights and European Union, 1998, p. 513.
19 Weekly Federal Court Report, Mexico, Fifth Epoch, Vol. XXXIX, No. 6, court precedents of October 18 to 25, 1933, Supreme Court of Justice of Mexico (no date); p. 1525: "The Law of the Press, issued by the First Head of the Constitutional Army, April 9, 1917, cannot be thought of as a law of a purely constitutional nature, but rather a regulatory one for Articles 6 and 7 of the Constitution since it had already been issued when the Law was promulgated. This Law would have lacked grounds if it had only been done in such a way that it had been in force for the non-extendible term of 17 days. So much so that on promulgating said Law, it was said that it would enter into force until Congress (which was to be instated on the following May 1st) regulated articles six and seven of the General Constitution of the Republic and since said Law of the Press has not been derogated or amended, nor has any other law been issued, it is clear that it should be considered in full force". This opinion currently forms part of jurisprudence, as can be verified in Jurisprudencia. Apéndice 1917-1988, G-Q, second part, chambers and common precedents, Supreme Court of Justice of Mexico, Mexico, 1989, pp. 1536-1537, Jurisprudence No. 939: "The Law of the Press of April ninth of the year one thousand nine hundred seventeen, which is currently in force, establishes in its article…".
In that same volume, Court Precedent 1071, pp. 1703-1704 is published. This opinion cited it with more profusion: "Pre-constitutional Legislation. It has legal force and must be complied with, as long as the current Constitution is not refuted or is not expressly derogated".
20 Carpizo, Jorge, "El poder: su naturaleza, su tipología y los medios de comunicación masiva", Boletín Mexicano de Derecho Comparado, Mexico, new series, year XXXII, No. 95, 1999, pp. 351-356: "The mass media is a power because it has the instruments and mechanisms that give it the possibility of imposing itself; because it conditions or can condition the conduct of other powers, organizations or individuals independently of their will or their resistance".
21 López-Ayllón, Sergio, Derecho de la información..., cit., p. 13.
22 See Bollinger, Jr., Lee C., "Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media", Michigan Law Review, Ann Arbor, Michigan, Vol. 75, No. 1, November 1, 1976, pp. 30-33 and 38; Schauer, Frederick, "The Role of the People in First Amendment Theory", California Law Review, Berkeley, Vol. 74, No. 3, May 1986, p. 782.
23 López-Ayllón, Sergio, first work cited, pp. 106-119.
24 Corral Jurado, Javier, "Breve historia de un intento legislativo", Diálogo y Debate de Cultura Política, Mexico, year 2, No. 8, 1999, pp. 15-18.
25 See La Reforma de medios. Voces en torno a la Iniciativa de Ley Federal de Comunicación Social, México, Chamber of Deputies, 1998, pp. 173. Among some of the contributors in this book are: Raúl Trejo Delarbre, Carlos Medina Plascencia, Javier Corral Jurado, Porfirio Muñoz Ledo, Federico Reyes Heroles, Francisco José Paoli Bolio, Sergio Sarmiento, Raymundo Rivapalacio, Carlos Castillo Peraza, Rafael Cordera Campos, Marco Levario Turcott, José Antonio Crespo and Santiago Creel.
26 Carpizo, Jorge, Derecho a la información..., cit., p. 512.
27 Carpizo, Jorge, La Constitución mexicana de 1917, Mexico, Porrúa-UNAM, 1998, pp. 293-297.
28 See Carpizo, Jorge, "Reformas constitucionales al Poder Judicial federal y a la jurisdicción constitucional, del 31 de diciembre de 1994", Boletín Mexicano de Derecho Comparado, Mexico, new series, year XXVIII, No. 83, 1995, pp. 807-842, and especially, "Otra reforma constitucional: la subordinación del Consejo de la Judicatura Federal", Cuestiones Constitucionales. Revista Mexicana de Derecho Constitucional, No. 2, p. 13. Also see Fix-Zamudio, Héctor, "Órganos de dirección y administración de los tribunales en los ordenamientos latinoamericanos", Memoria de El Colegio Nacional, Mexico, El Colegio Nacional, 1992, pp. 43 and 44. Also by this author, see Los problemas contemporáneos del Poder Judicial, Mexico, UNAM, 1986, pp. 37-40.
29 Villanueva, Ernesto, El secreto professional del periodista. Concepto y regulación jurídica en el mundo, Madrid, Fragua Editorial, 1998, pp. 29 and 29. Escobar de la Serna, Luis, op. cit., pp. 251-253 and 256-258.
30 See "Applying the Freedom of Information Act's Privacy. Exemption to Requests for Lists of Names and Addresses", Fordham Law Review, New York, Vol. LVIII, No. 5, 1990, pp. 1033-1051.
31 López-Ayllón, Sergio, Derecho a la..., cit., p. 180. The various aspects of this right that are regulated in Mexico can be seen in this same work, pp. 20-23.
32 Villanueva, Ernesto, Derecho comparado de la información, Mexico, Chamber of Deputies and Universidad Iberoamericana, 1998, pp. 30 and 31.
33 Ibidem, pp. 33-34, and also his book entitled Régimen jurídico de las…, cit., pp. 168-177.
34 See Bilger, Philippe and Prévost, Bernard, Le droit de la presse, Paris, Presses Universitaires de France, 1995, pp. 12-17.
35 Carrillo, Marc, La cláusula de conciencia y el secreto profesional de los periodistas, Madrid, Cuadernos Civitas and Gerneralitat de Catalunya, 1993, pp. 23, 127-129 and 151-153. Capseta Castella, Joan, La cláusula de conciencia periodística, Madrid, McGraw-Hill, 1998, p. 1. Escobar de la Serna, Luis, op. cit., pp. 278-280. Villanueva, Ernesto, Derecho comparado..., cit., pp. 32 and 33.
Article 29 of the Constitution of Paraguay of 1992 is entitled "On the Freedom of the Exercise of Journalism" and in one of its provisions it stipulates that "In performing of their duties, journalists of mass communication media organizations will not be forced to act against the dictates of their conscience or to reveal their sources of information". Translator's note: http://www.oefre.unibe.ch/law/icl/pa00000_.html.
36 Carrillo, Marc, op. cit., pp. 132-138, 154-155 and 165 and 166. Capseta Castella, Joan, op. cit., pp. 100 and 101. Escobar de la Serna, Luis, op. cit., pp. 285 and 286.
37 Franceschini, Laurence, Droit de la Communication, Paris, Hachette, 1996, p. 100.
38 Les droits et les devoirs du journaliste, Paris, CFPJ Editions, 1995, p. 35.
39 For the legal analysis and scopes of the three premises or cases of the conscience clause in French legislation, see Capseta Castella, Joan, op. cit., pp. 102-118. Franceschini, Laurence, op. cit., pp. 23 and 24. Carrillo, Marc, op. cit., pp. 143-147.
40 Capseta Castella, Joan, op. cit., p. 107.
41 Carrillo, Marc, op. cit., pp. 164 and 165.
42 Pigeat, Henri, Médias et déontologie. Regles du jeu ou jeu sans regles, Paris, Presses Universitaires de France, 1997, pp. 13, 48, 192 and 193. Halimi, Serge, Les nouveaux chiens de garde, Paris, Liber-raisons d'agir, 1997, p. 102.
43 Carpizo, Jorge, Derecho a la información..., cit., p. 510.
44 Weekly Federal Court Report, Eighth Epoch, Appellate Court, Vol. X, August, 2nd court precedent, 1/92, Registry No. 206,435, Mexico, 1992, p. 44: "INFORMATION. RIGHT TO, ESTABLISHED BY ARTICLE 6 OF THE FEDERAL CONSTITUTION. The addition of Article 6 of the Constitution, in the sense that the right to information shall be guaranteed by the State, was brought about by means of the presidential bill of October fifth, nineteen seventy-seven, as well as by the decision of the United Commissions of Legislative Studies and First Constitutional Issues of the Chamber of Deputies. Thus, it is concluded that: a) The right to information is a social guarantee, associated with freedom of expression, which was established based on the so/called 'Political Reform' and that consists in that the State allows that, through the various means of communication, the diverse opinions of political parties be regularly expressed, b) That the exact definition of the right to information is left to ancillary legislation; and c) That it was not for the purpose of establishing an individual guarantee with which any citizen may request and obtain certain information from State bodies whenever he deems convenient. Regarding this last point, it does not mean that the authorities are exempt from their constitutional obligation of informing, under the form and terms established by ancillary legislation; but it does not surmise that the citizens have the right before the State to obtain information in cases and through systems that are not set forth by the corresponding norms. In other words, the right to information does not create the individual's right to arbitrarily choose the means through which he requests to know certain information on the activities carried out by the authorities, but that this right should be exercised in the manner that has been legally established". Amparo under review 10556/83, Ignacio Burgoa Orihuela. April 15, 1985, unanimously with four votes, speaker: Atanasio González Martínez, secretary: Mario Pérez de Leon E.
45 Carpizo, Jorge, El poder: su naturaleza…, cit., pp. 355-356.
46 Carpizo, Jorge, Derecho a la información..., cit., p. 518.