he published did not contain insults or references to the personal life of the judge who
prosecuted him, but rather was restricted to the analysis of this judge’s work in the judicial
case he was hearing. Indeed, in the said judgment, the Court placed on record that “Mr.
Kimel reconstructed the judicial investigation of the massacre and, on this basis, issued a
value judgment on the performance of the Judiciary during the last military dictatorship in
Argentina” and that “Mr. Kimel did not use excessive language and based his opinion on the
events verified by the journalist himself” (para. 92).
6.
In this Judgment in the case of Mémoli v. Argentina, the Inter-American Court has
had to examine a case with very different characteristics to the Kimel case as regards the
dimension of the rights in conflict; despite this, it underscores, once again, the interrelation
of the exercise of journalism with the exercise of freedom of expression (para. 120).
Nevertheless, it is clear to the Court that freedom of expression is a right that corresponds
to everyone and not only to journalists, so that it is not correct to assimilate – or restrict –
the right to freedom of expression to the rights of journalists or the exercise of the
profession of journalism, because everyone has this right, not only journalists or those who
express themselves through the mass media.
7.
Indeed, everyone has the right to freedom of expression, not only journalists or the
mass media. In the exercise of this right, consequently, not only journalists are bound by
the Convention to ensure respect for the rights or the reputation of others, respecting the
right to honor, but so does everyone who makes use of this right to freedom of expression.
Despite this, based on the facts of the case, in this Judgment the Court places emphasis on
the duty of the journalist to verify the events on which he bases his opinions, acting with
“fairness and diligence in crosschecking sources and seeking information” (para. 122). And
this is why, in the same paragraph, the Court recalls that journalists must exercise their work
respecting the principles of “responsible journalism.”
8.
The provisions that protect the right to freedom of expression are components of a
vast system of juridical and human rights. In this context, the complementary and dialectic
relationship between each right may eventually lead to collisions and conflicts that must be
processed and decided by law, as appropriate, so that the exercise of these rights does not
lead to excesses in some rights that eventually affect the exercise of others. This gives rise to
an essential component of rights, which is that, in general, they are not and cannot be
considered “absolute,” insofar as there are other rights with which they must co-exist and
coordinate.
9.
Thus, in its consistent case law, the Inter-American Court has reiterated that, since it
is not absolute, the right to freedom of expression established in Article 13 of the
Convention, right may be subject to the subsequent imposition of liability (subparagraph 2)
or to restrictions (subparagraphs 4 and 5). This principle is repeated in the Judgment (para.
123), which, in its findings, never refers to “restrictions” but, specifically, to the
“subsequent imposition of liability,” which is not a synonymous concept. Indeed, as
emphasized in Article 13(2) of the Convention, if the exercise of freedom of expression
interferes with other rights guaranteed by the Convention, the subsequent imposition of
liability may be claimed for the abusive exercise of this right. If this was not possible, the
Convention would be proposing the “absolute” nature of this right which is legally and
conceptually unsustainable. This is precisely the specific area of this Judgment in which the
Court has taken great care not to equate “the subsequent imposition of liability” and
“restrictions,” because they are different concepts. The core of this Judgment is a situation in
which what is in question is, specifically, the subsequent liability in relation to an alleged
infringement of “respect for the rights or reputations of others” subparagraph (a) of Article
13(2)).
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