41.
At the time of the facts, Article 1071 bis of the Civil Code established:
[a]rbitrary interference in the lives of others, by posting pictures, broadcasting
correspondence, mortifying others because of their habits or feelings, or in any way disturbing
their privacy, and the fact was not a criminal offense, will be forced to stop such activities,
unless they have already ceased, and to pay a compensation that shall be equitably
established by a judge, according to the circumstances; in addition, the latter may, at the
request of the aggrieved, order the publication of the sentence in a newspaper or periodical, if
this measure is appropriate for an adequate compensation.
C. Considerations of the Court
1. Right to freedom of thought and expression and to private life
42.
Regarding the contents of freedom of thought and expression, the Court has
pointed out that those who are protected by the Convention not only have the right to
seek, receive, and disseminate ideas and information of any kind, but also to receive
information and be informed about the ideas and information disseminated by others. 35
43.
Notwithstanding, freedom of thought and expression is not an absolute right.
Article 13(2) of the Convention, which prohibits prior censorship, provides for the
possibility of placing restrictions on freedom of thought and expression by imposing
subsequent liability for abuse of this right. These restrictions in no way should restrict,
beyond what is strictly necessary, the full exercise of freedom of thought and
expression or become either a direct or indirect mechanism of prior censorship. 36
44.
In its jurisprudence, the Court has established that media plays an essential
role as vehicles for the exercise of the social dimension of freedom of expression in a
democratic society, which is why it is vital that the media is able to gather the most
diverse information and opinions. The media, as essential instruments of freedom of
thought and expression, are required to discharge their social function responsibly. 37
45.
Given the importance of freedom of thought and expression in a democratic
society and the great responsibility it entails for professionals in the field of social
communications, the State must not only minimize restrictions on the dissemination of
information, but also extend equilibrium, to the greatest possible extent, to the
participation in the public debate of different types of information, fostering
informative pluralism. Consequently, equity must regulate the flow of information.
Under these terms the protection of the human rights of those who confront the power
of the media and the attempt to ensure the structural conditions that allow the
equitable expression of ideas can be explained. 38
35
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts.
13 and 29 of the American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985.
Serie A No. 5, para. 30, and Case of Tristán Donoso V. Panamá. Preliminary Exception, Merits, Reparations
and Costs. Judgment January 27, 2009. Serie C No. 193, para. 109.
36
Cf. Case of Herrera Ulloa V. Costa Rica. Preliminary Objections, Merits, Reparations and Costs.
Judgment July 2, 2004. Serie C No. 107, para. 120, and Case of Tristán Donoso V. Panamá, supra note 35,
para. 110.
37
Cf. Case of Ivcher Bronstein V. Perú. Merits, Reparations and Costs. Judgment of February 6, 2001.
Serie C No. 74, para. 149, and Case of Herrera Ulloa V. Costa Rica, supra note 36, para. 117.
38
Case of Kimel V. Argentina. Merits, Reparations and Costs. Judgment of May 2, 2008. Serie C No.
177, para. 57.
17