46
f)
Examination of the case leads to the conclusion that a subsequent
imposition of liability has been applied to Mr. Canese’s statements that is
incompatible with the Convention. The complaint against the alleged victim
was filed by the CONEMPA partners, even though they were not mentioned
individually in the statements made by Ricardo Canese. “[W]ithin the context
of the treaty[,] an action for the offense of slander and injuria can never be
filed, if the attribute that these offenses are intended to protect has not been
clearly harmed;”
g)
Article 13 of the Convention prohibits restricting freedom of expression
by indirect methods or means. The punitive measures resulting from certain
statements could, in some cases, be considered an indirect means of
restricting freedom of expression. The inhibiting effect of the punitive
measure can generate self-censorship in the individual who wishes to speak
out, which produces almost the same effect as direct censorship: “opinions do
not circulate.” Such cases are limited to statements on matters of public
interest;
h)
The criminal categories of libel, injuria and slander are intended to
protect rights guaranteed by the Convention. The legally protected attribute
of honor is embodied in Article 11 of the Convention; thus, it cannot be
asserted that the criminal categories of libel and injuria violate the
Convention. However, in cases where the punitive measure sought involves
matters of public interest or political statements in the context of an electoral
campaign, the right embodied in Article 13 of the Convention is violated,
because there is no imperative social interest that justifies the punitive
measure, or because the restriction is disproportionate or constitutes an
indirect restriction. It should be established that statements made in the
context of matters of public interest, such as an electoral campaign, are not
punishable. In such cases, civil proceedings can be instituted, provided that
the standard of actual malice is satisfied; in other words, it is necessary to
prove that, by disseminating the information, the author intended to cause
harm or knew full well that he was disseminating false information. A punitive
measure resulting from statements of public interest is incompatible with the
provisions of Article 13(3) of the Convention. There are other less restrictive
means by which individuals involved in matters of public interest may defend
their reputations from unfounded attacks;
i)
The statements disseminated by Mr. Canese referred to a matter of
public interest, because they took place in the context of an electoral
campaign, with regard to a candidate to the presidency of the Republic, who
was a public person, and to a matter of public interest. “The sentence
imposed on Mr. Canese[,] as a result of the proceedings filed against him by
the partners of CONEMPA[,] sought to have an intimidating effect on any
debate involving public persons on matters of public interest, and became an
indirect means of restricting freedom of expression;”
j)
The partners of CONEMPA have voluntarily become involved in matters
of public interest, such as their activities with the Itaipú project;
k)
The sanction imposed on Mr. Canese for the statements made in the
context of an electoral campaign represented an “unnecessary” means of
restricting his freedom of expression. Moreover, “the protection of the
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