Proposal
for a formulation of the Right to Communicate1
Considering
that:
All
humans are gifted, above any other living being, with the ability to
emit and receive signals, and thus acquire on birth the inalienable
right to communicate and dialogue with other intelligent beings.
The
free exercise of this right to conscious relationships converted them
into political creatures, gifted with languages and able to multiply
within social structures the intellectual, moral and emotional
capacities of each person.
The
incapacity or impossibility of communicating prevents the formation
of any model of community life.
All
of society is the reflection of its own communicant flows and of how
citizens exercise within it their communication rights.
Any
impediment, imposed by some people on others, to the exercise of this
right, is a transgression against the relational nature of human
beings.
Individual
and social communication rights have equal dignity and should be
harmoniously conciliated.
The
growing complexity of both present social structures and
techno-communicant extensions of humans have instigated citizens and
social groups to delegate the exercise of part of their own
communication rights to substitutes. This delegation has come about
with almost no order, rationality nor justice, and many of such
rights have been abusively confiscated by ideological or market
forces, interested in reducing the capacity for dialogue of human
beings in order to secure their dominion.
The
full devolution of such rights and a retribution for delegation of
communications in substitutes –on consensual bases that
guarantee greater pluralism, more democracy and freedom- could only
occur through a social contract in communication among all people.
We
propose the following formulation of the right to communicate:
The
human right to communicate is a sine qua non condition for
each person to participate in democratic life of the peoples, states
and the international community, as well as to exert their right to
development. This right includes the full and integral exercise of
the following rights or liberties:
1.
The right to freedom of opinion
It
consists in the inalienable power of people to formulate and emit
their own judgements about any public or private matter, without this
resulting in any of their rights being affected and/or restricted; in
this sense it is an absolute right, since it is inadmissible to
legally admit any sort of retaliation to a person's opinions.
2.
The right to freedom of expression
It
consists in people using any means, channel, form or style of
expression to externalize their ideas and creativity about any matter
or person, whether public or private, without any legitimate
possibility of their being submitted to forms of control or previous
censorship. But in all cases, acts of expression are subject to the
legal consequences that could arise from abuse of this freedom, as
long as that abuse has previously and expressly been typified in the
juridical order of each State; and that this typification be coherent
with the constitutional order and universal mandate of States to
guarantee the full and integral exercise of human rights.
3.
The right to freedom of dissemination
It
is the right that juridical and natural persons have to undertake
communication activities in equal legal conditions2
and without suffering illegitimate restrictions, be they legal,
political, economic, technical or of any other kind that could
prevent, diminish and/or condition:
-
the development of such activities
-
the constitution of enterprises or entities dedicated to
communication activities; and
-
the normal functioning of such enterprises or entities.
4.
Freedom of information
It
is the non-restrictable power of all people or enterprises3
to carry out communication activities to access, produce, circulate
and receive all types of information, except in two cases:
a)
Such information as is expressly protected by a previously stipulated
reserve clause in the legal framework. Such a clause must satisfy
the condition of being legitimate and legally valid for its
application, in order to be deemed in accordance with law.
b)
That information whose dissemination would directly infringe a
person's right to intimacy.
5.
The right to access and use of media and information and
communications technology
It
consists in the inalienable power of people, families, enterprises,
geographical areas, countries, to freely access and use media and
information and communications technologies in the production and
circulation of their own content as well as for reception of content
produced by other people, with the aim of achieving sustainable and
equitable development, centered on the rights and needs of human
beings.
In
matters pertaining to the right to communicate, the legitimacy of a
norm or disposition of any kind that establishes limits to the
exercise of this right or generates obligations for States and
natural or juridical persons under their jurisdiction, will depend on
their having been drawn up and approved under strict observation of
prescribed procedures. And they must be absolutely coherent with
International Human Rights Instruments, and the Constitutions and
laws of States that give them equal or greater protection.

1
This
is a working document that presents our PROPOSAL, for consideration,
on the content of the right to communicate; it therefore should not
be understood that the definitions included in this document are
identical to those in international instruments or laws in each
country. Drawn up by Antonio Pasquali and Romel Jurado, June 2002.
(Provisional translation from the Spanish).

2
We
should note that the use of actions of positive discrimination that
allow a certain human grouping, in a situation of social
disadvantage, to facilitate their exercise of this freedom, does NOT
constitute an infraction of the principle of legal eqality.

3
We
use the term "enterprise" in its more general sense, that
is, the attempt or intention to undertake something; and not in its
economic sense that relates it exclusively to the commercial field.