54
c)
even when motivated by public order or the general welfare,
limitations on freedom of expression and on human rights in general, “cannot
degenerate to the point that they end up draining those rights of all content.”
There is a classic conflict between freedom of expression and protection of
privacy. However, the principle of proportionality must be strictly observed in
this area, since otherwise freedom of expression could be weakened; and
d)
the Commission has established that the right to freedom of
expression and information is one of the principal mechanisms society has to
exercise democratic control over persons charged with public affairs.
102(2) With regard to the alleged violation of Article 13 by the conviction under
criminal law and by the fact that Mr. Mauricio Herrera Ulloa was found guilty on four
counts of the crime of publishing offenses constituting defamation, the alleged
victims’ representatives pointed out that:
a)
they fully concur with the Commission’s contention that the Costa
Rican courts’ conviction of Mr. Herrera Ulloa constitutes a violation of his
freedom of expression.
The conviction does not fit either precondition
established in Article 13(2) of the Convention for subsequent imposition of
liability, one of which is protection of reputation; but this is not the protection
of honor and reputation of which Article 11 of the Convention speaks;
b)
the criminal law on defamation, calumny and offense, invoked to
convict Mr. Mauricio Herrera Ulloa, is expressly contemplated in the legislation
for protection of the honor, reputation and privacy of persons. However, to
prosecute, convict and punish a person under criminal law, for conduct
involving statements on issues of public interest is a violation of Article 13 of
the Convention, as there is no pressing social need that justifies punishment
under criminal law;
c)
the State must refrain from censoring news of public interest that
concerns the conduct of public officials or private citizens voluntarily engaged
in public affairs, and must provide that information to its citizens;
d)
because of the nature of their functions, public officials are subject to
public scrutiny and must be more tolerant of criticism, which means that the
degree of protection of privacy and reputation that they enjoy is different
from that enjoyed by private citizens. Costa Rican journalists and the media
could not turn a blind eye to the controversy reported in the Belgian press
involving diplomat Przedborski, a public figure alleged to have been
implicated in acts of corruption. Journalists and the media had a professional
responsibility to inform the public about the controversy unleashed in the
Belgian press surrounding that diplomat;
e)
Mr. Herrera Ulloa, as a journalist, and “La Nación”, as a newspaper,
aroused public discussion about a public official, which is a pressing social
need within a democratic society. The liabilities that the State subsequently
imposed upon them overstep the boundaries of Article 13(2) of the
Convention;
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