Costa Rica

73 General Assembly
Salt Lake City, Utah

In August the executive branch sent to Congress two proposed laws with troubling provisions related to press freedom and freedom of expression.

The proposed law on access to public information proclaims good intentions but establishes exceptions to the right to access information in cases not currently exempted, such as monetary and fiscal policies "prior to implementation." It also allows for material to be removed from the public realm "due to a provision in a special law."

These procedures could prove even more cumbersome than the current ones. Costa Rica, through use of the recourse known as amparo, has achieved very open access to public information, although the speed with which requests are processed is less than ideal. The proposed change does not guarantee the same degree of access and could result in much lengthier processes in the form of administrative proceedings.

The proposed law on freedom of expression and freedom of the press contains significant technical and legal errors, such as the contradictory elimination of the "truth test" even as truthfulness has not been eliminated as a requirement for exonerating a reporter. The way the article is worded leads to confusion, because it is titled "exclusion from offense" but it describes actions that "are not punishable"; in other words, it confuses grounds of justification (whereby an action is no longer illegal) with grounds of exculpation (whereby an illegal action does not give rise to criminal liability, such as a situation where someone is acting under coercion).

The proposal takes Costa Rica's legal framework away from the Sullivan doctrine or the ex ante establishment of truthfulness in the Spanish legal system, with the unfortunate effect of casting doubt on progress achieved in case law over the years.