communicates and the right to honor of the person affected. 168 Furthermore, the State
has the obligation to provide a judicial remedy so that any person who considers that
his honor has been harmed can demand protection. 169
108. Finally, as regards the proportionality and necessity of the measure, the Court
has understood that any restriction imposed on the right to freedom of expression must
be proportionate to the interest that justifies it, and closely tailored to the
accomplishment of that legitimate purpose, interfering as little as possible with the
effective exercise of that right. 170 Thus, it is not sufficient to have a legitimate purpose,
the measure in question must also respect the principles of proportionality and necessity
in restricting freedom of expression. In other words, [in this] “this last step of the
examination, it is discussed whether the restriction is strictly proportionate, in a manner
such that the sacrifice inherent therein is not exaggerated or disproportionate in relation
to the advantages obtained from the adoption of such limitation.” 171
109. It is important to note that the European Court of Human Rights, in interpreting
Article 10 of the European Convention, concluded that "necessary," while not
synonymous with "indispensable," implied "the existence of a 'pressing social need'" and
that for a restriction to be "necessary" it is not enough to show that it is "useful,"
"reasonable" or "desirable." 172 This concept of “imperative social need” was endorsed by
the Inter-American Court in its Advisory Opinion OC-5/85. 173
110. Below, the Court will examine the compatibility with the American Convention of
the subsequent liabilities established for the presumed victims, taking into account the
aforementioned standards, and the State's acknowledgment of responsibility. To do this,
the Court will refer to the nature of the statements published in the article “NO to lies”,
and then study whether the measure in this particular case is compatible with the
American Convention.
A.2.4. Classification of the statements in the article “NO to lies”
111. The Court recalls that the State recognized that “the Ecuadorian bodies handed
down a criminal sentence of three years of imprisonment and a civil penalty (…) due to
the publication of an opinion article on a matter of public interest” (supra, par. 19).
Accordingly, it acknowledged that “the criminal sanction imposed on Emilio Palacio Urrutia
and the directors of El Universo newspaper, as well as the civil reparation ordered within
the aforementioned criminal proceeding, did not respond to a social interest imperative
justifying them, and were therefore unnecessary and disproportionate and, although they
were not executed, they could have had an intimidating effect on the parties in the case”
(supra, par. 19).
168
107.
169
107.
Cf. Case of Kimel v. Argentina, supra, par. 51, and Case of Álvarez Ramos v. Venezuela, supra, par.
Cf. Case of Mémoli v. Argentina, supra, par. 125, and Case of Álvarez Ramos v. Venezuela, supra, par.
Cf. Case of Herrera Ulloa v. Costa Rica, supra, par. 123, and Case of Álvarez Ramos v. Venezuela,
supra, par. 108.
170
171
108.
Cf. Case of Kimel v. Argentina, supra, par. 83, and Case of Álvarez Ramos v. Venezuela, supra, par.
172
Cf. ECHR. Case of The Sunday Times v. The United Kingdom, Judgment of April 26, 1979, par. 59.
173
Cf. Advisory Opinion OC-5/85, supra, par. 46.
38