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Slander and injuria should be decriminalized for “all types of citizens,” with no
distinction made between “ordinary citizens” and public officials.
Offenses against honor “are used in exactly the same way” as the offense of
disrespect or contempt for authority (desacato). The difference consists in
whether the act takes place in the public or private sphere. In the practice,
offenses against honor do not protect honor, because, when a trial is
conducted, the slander and injuria become “public knowledge,” since they are
publicly repeated before each instance of the proceeding. These offenses
protect “all public officials,” their business partners, and their entrepreneurial
friends.
Essentially, the inhibiting effect of prosecuting an individual for the offenses of
slander and injuria occurs with the initiation of the proceeding. It is quite
common for political leaders not to continue with actions because they know
that the inhibitory effect has been achieved; what interests them is the
“intimidating effect of the complaint.”
There are different points of view concerning the decriminalization of the
offenses of injuria, slander and libel. Those who are against decriminalization
of these offenses are generally individuals exercising public functions or some
scholars who consider the rule of intent to be sufficient, and that including the
actual malice principle is a foreign “implant.”
There are situations when, in the face of political or financial power, the
journalist is the weak factor in the equation; and there are other situations
when, to the contrary, the media is the strong factor in the equation, in the
case of the ordinary individual. The ordinary individual’s right to honor can be
strengthened by the right of reply. In the case of reparations for possible
restrictions to the freedom of the press and freedom of expression, in addition
to the right of reply, there is also civil reparation. Furthermore, in most of
“our countries”, public officials appoint the judges and “hold the key to [their]
removal.” Consequently, equality before the law between an ordinary
individual and a public official who files a complaint against this individual is
not perfect, as it should be; they are not equal before the courts.
The American Convention does not establish that States have an obligation to
decriminalize offenses against honor. The Convention establishes the right of
reply. Nevertheless, to the extent that criminalization is not necessary to
preserve democratic public order, “it should yield”; in other words, it does not
respond to a social imperative, and there are other less overpowering
recourses to protect the rights and guarantees included in the Convention.
This criminalization exists “in almost all the countries in the region.”
He is aware of the penal reforms carried out in Paraguay, which are an
important step forward. The penal legislation in force in Paraguay that
categorizes slander “could be sufficient to resolve this case, but it is not
sufficient to resolve the general problem we have described, which occurs in
Paraguay and in the rest of the countries in the region.” It is insufficient
because it does not differentiate between the ordinary individual and the
public official, which is the minimum that could be added to the norm.