intimidating critics, the “Protection of Public Law Act” 14 was enacted. One of the purposes of
the law is to discourage lawsuits that seek to limit freedom of expression in matters of public
interest, and thus reduce the risk of participation in such matters. To achieve this, said law
establishes mechanisms that allow a judge to dismiss this type of lawsuit when it is noticed
that it refers to a matter of public interest, except in the exceptions that the norm itself
provides. These exceptions refer, inter alia, to cases where the judge finds that the damage
suffered by the plaintiff could exceed the public interest of the expression that generated
it. 15
16.
The judgment addresses the problems raised by the SLAPP suits at three different
points that it is important to highlight and understand in an interrelated manner. In the first
place, the Judgment made a general consideration regarding the need for the protection that
freedom of expression offers to journalists, so that they can gather, collect and disseminate
their ideas. The importance of protecting journalists is essential not only for the individual
protection of the freedom of expression of those who carry out journalistic activities, but
also for those who receive the message that it transmits, that is, in its social dimension. In
this way, the judgment affirms that the SLAPP lawsuits directed against those who speak
publicly, constitute a threat to freedom of expression, and therefore constitute an abusive
use of judicial mechanisms that must be regulated and controlled by the States. 16
17.
In relation to the foregoing, the duty to create alternative mechanisms to criminal
proceedings is established so that public officials obtain a rectification or response when
their honor or good name has been injured. The aforementioned protection is directly linked
to the Álvarez Ramos precedent and can be understood as a protection for the exercise of
journalism in the logic of anti-SLAPP laws, to the extent that it prohibits the use of criminal
law to claim protection for the honor or good name of public officials, and establishes that
civil penalties must be proportionate. This is one more protection for freedom of expression,
which may be especially relevant in cases where the authorities use judicial mechanisms to
silence political opponents, which excludes the possibility of criminal sanctions in certain
cases. In the Court's words:
This Court also considers that media pluralism and diversity constitute substantial
requirements for an open and free democratic debate in society. This requires the
following: (A) on the part of the State, compliance with the duty to respect and adopt
decisions and policies that guarantee the free exercise of freedom of expression and
freedom of opinion of the media. Similarly, establish, for the protection of the honor
of public officials, alternatives to the criminal process, for example, rectification or
response, as well as the civil pathway. This includes renouncing the use of
stigmatizing speeches or practices against those who speak publicly and all types of
harassment, including judicial harassment, against journalists and people who
exercise their freedom of expression, and (B) it is up to the media to contribute to
the strengthening of the democratic and participatory system, respectful of human
rights, in accordance with the principles of the Democratic Rule of Law (contained in
the Democratic Charter), in a context of plural and diverse media without
discrimination or exclusions, as the Court has stated from Advisory Opinion OC-5/85.
In short, the particular interests of its owners must not constitute an obstacle to the
debate that implies indirect restrictions on the free circulation of ideas or opinions. 17
14
Cf. Protection of Public Participation Act, 2015, S.O. 2015, c. 23 - Bill 52
15
Cf. Protection of Public Participation Act, 2015, S.O. 2015, c. 23, 137.1 (4) (b).
16
Cf. Palacio Urrutia et al. v. Ecuador. Merits, Reparations and Costs. Judgment of November 24, 2021, par. 95.
17
Cf. Palacio Urrutia et al. v. Ecuador. Merits, Reparations and Costs. Judgment of November 24, 2021, par. 96.
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