104. Although it is not essential, it is worth recalling that the doctrine explains that
the distinction in relation to the greater seriousness of slander with respect to insult,
is due to the fact that the first affects two legal rights, that is, honor due to injury
and personal freedom due to danger, since the false accusation of a crime is likely to
at least generate an investigation and prosecution.
105. As can be seen, the principle of strict legality in the legislation in force at the
time of the processing was in no way affected and, with respect to the editors, it is a
question of fact and evidence to determine whether they can be considered coauthors or participants (necessary or simple accomplices). Expecting that they are
invariably safe from any responsibility would amount to establishing an undue
privilege of total impunity for damage to the honor and freedom of any inhabitant,
since there is always the simple case of an article signed by any unknown person
inclined to do so or who is paid to do so. What has been said is also current in
comparative legislation, doctrine and jurisprudence.
IV.1.b. Non-essential requirement for the express provision of
justification
106. It is known that there is a current that proposes the abolition of the criminal
offenses of crimes against honor, to proceed to resolve the conflict resulting from
these injuries through civil justice. The question is debatable and in general, in Latin
America this line has not been followed nor has this Court ruled on the matter, which
is correct, given that it is up to each State to decide its own criminal policy criteria,
as long as they do not violate the American Convention or other human rights
instruments.
107. Comparative legislation shows that in some of our countries impunity for these
crimes has been expressly established by law when they are motivated by issues that
are in the public interest (for example, Articles 109 and 110 of the Argentine criminal
code). The convenience of these provisions is debatable, but the important thing is
not whether or not it is legally established, but rather that the judges do not impose
penalties when the journalistic activity is intended to criticize or expose issues that
are of public interest, which is no more than the exercise of a right recognized by
Constitutions and international law. The legal order is not a normative chaos, but
rather judges must understand it with the coherence of a system and, therefore, they
must take for granted that no infra-constitutional provision can be interpreted outside
the framework imposed by the norms of the highest hierarchy.
108. Nor does the legal recognition of these provisions solve all the problems, since
ultimately a constitutional and internationally recognized right is at stake, that is, in
each case it will be necessary to weigh values such as an official’s right to honor, on
one hand, and the right of expression and criticism when it is in the public interest
on the other. Whether or not impunity is expressly enshrined in the law, journalistic
criticism in matters of public interest is always the exercise of a right and, therefore,
it is a question that does not refer to the categorization of the conduct, but to its
justification, taking into account that the legitimate exercise of a right is always the
essence of all the causes of justification.
109. The impunity of journalistic activity in these cases does not emerge from
criminal law, but from constitutional and international law. To claim that criminal law
embodies all justifications or all reduction of the typical prohibitions resulting from
the entire legal order, would be as absurd as considering that the offense of homicide
violates legality because it does not elaborate with unless it is in legitimate defense,
the offense of injury because it is not limited by unless it is practiced by a doctor for
17
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents