similar component in the cases of Ricardo Canese v. Paraguay (judgment of August 31,
2004), Palamara Iribarne v. Chile (judgment of November 22, 2005) and Kimel v.
Argentina (judgment of May 2, 2008).
15.
In the case of Ricardo Canese v. Paraguay, the Court stipulated that “it is legitimate
for anyone who feels that his honor has been harmed to have recourse to the judicial
mechanisms established by the State to protect it” (para. 101), referring back to the case
law of the European Court of Human Rights, since the latter “has maintained consistently
that, with regard to the permissible limitations to freedom of expression, it is necessary to
distinguish between the restrictions that are applicable when the statement refers to a
private individual and, on the other hand, when it refers to a public persons such as a
politician” (para. 102). Taking these elements into account, in the Canese case, the InterAmerican Court determined that “in the case of public officials, of individuals who perform
functions of a public nature, and of politicians, a different threshold of protection should be
applied, which is not based on the condition of the person in question, but on the public
interest of the activities or actions of a certain individual (para. 103).
16.
The same reasoning and analysis was used in the case of Palamara Iribarne v. Chile,
which concerned a book written by Mr. Palamara Iribarne on aspects of the military
institution in which he worked. In the opinion of the Inter-American Court the distribution of
the book could not be obstructed, because the victim could not be prevented from
exercising his freedom of expression, and he should have been able to distribute the book
using any appropriate method to ensure that his ideas and opinions reached the largest
audience, and that this audience could receive this information” (para. 73). The Court
reiterated its case law in the sense that, with regard to public officials, the scope of
protection of their right to honor is different. Thus, the Court established that “statements
concerning public officials or other persons who perform functions of a public nature enjoy,
in the terms of Article 13(2) of the Convention, greater protection that provides an opening
for a broad discussion, essential for the functioning of a truly democratic system. These
criteria apply in this case with regard to the critical opinions or statements of public interest
expressed by Mr. Palamara Iribarne in relation to the actions of the Magallanes Naval
Prosecutor during the criminal proceedings against him in the military jurisdiction for the
offenses of disobedience and failure to comply with military obligations” (para. 82).
17.
The case of Kimel v. Argentina also involved a “conflict between the right to freedom
of expression regarding issues of public interest and right of public officials to have their
honor protected” (para. 51). Developing the concept of the weighing up exercise, in this
case the Court established that “it is imperative to ensure the exercise of both rights. In this
regard, the prevalence of either of them in a particular case will depend on the
considerations made as to proportionality. The solution to the conflict arising between some
rights requires examining each case in accordance with its specific characteristics and
circumstances, considering the existence and extent of the elements that substantiate the
considerations regarding proportionality” (para. 51).
18.
In this Judgment, the Court has been obliged to recall some aspects of the content
and meaning of the decision adopted in the Kimel case because, during the processing of
this case, there were those who maintained that, in the Kimel judgment, the Inter-American
Court had determined that defining defamation and libel as offenses was incompatible with
the Convention. The Inter-American Court has never established this. In the present
Judgment, the Court sets out its consistent case law on this matter (para. 133) emphasizing
that it is not appropriate to attribute to the Court that, in the Kimel or any other case, it
established that defining defamation and libel as offenses could be, per se, contrary to the
Convention.
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