5.
In light of the principles of fragmentation and minimum criminalization, I find it
necessary to insist on the absolute exceptionality of the use of criminal measures, based on
the parameters of suitability (adequacy), necessity and proportionality, as reflected in
paragraphs 71 and 72 of the judgment in this case, in order not to restrict freedom of
expression excessively. Hence, I consider it relevant to emphasize that this does not mean
that rights such as honor are left without any legal protection. Nor can it be deduced from
this inference that journalists enjoy unlimited protection, as pointed out in paragraph 68 of
the judgment, owing to the need for meticulous harmonization in situations in which human
rights and fundamental collective values clash. Thus, the safeguard of honor and possible
limitations of freedom of expression – in situations that entail the dissemination of information
of public interest – should give priority to measures other than the criminal jurisdiction.
6.
Therefore, in this concurring opinion, I will make observations obiter dicta on the use of
criminal measures to limit the right to freedom of expression. In particular, I will address the
conflict between substantive aspects of article 7 of the Printing Act – the applicability of which
is in dispute in Costa Rica’s domestic jurisdiction – with the Convention and with the case law
of this Court.
7.
First, I will set out my considerations on article 7 of the Printing Act of Costa Rica,
starting with general observations on the existence and use of criminal measures to restrict
freedom of expression and thought under domestic law. Then, I will address the two aspects
that are particularly problematic and that have been stressed in the judgment: these are the
existence of an aggravated form of the offense of libel and the possibility of imposing objective
liability pursuant to article 7 of the Printing Act.
II.
Establishment and use of criminal measures as instruments to restrict the
right to freedom of expression
8.
The interaction between criminal law and the right to freedom of expression is a
recurrent issue on the agenda of the inter-American system of human rights (“inter-American
system”).
9.
The Court had its first opportunity to address aspects of the right to freedom of
expression in its Advisory Opinion OC-5/85 (1985), which referred to the compatibility with
the Convention of compulsory membership in a professional association for journalists in
Costa Rica. When discussing the content of Article 13 of the Convention, the Court underlined
important standards that define the individual and the collective dimension of the right to
freedom of expression and the importance of the requirements of the legality, legitimacy of
purpose, and necessity of its restriction. On the specific issue on which it was consulted, the
Court also indicated that the possibility of individual liability for the dissemination of
information and ideas by those who were not registered as journalists –even criminal liability
– was a restriction of their freedom of expression that raised concerns about its compatibility
with the Convention. Thus, even though this was in embryonic form, the advisory opinion
represented an important step towards establishing some of the first caveats about the
expansive use of criminal law in the area of public communication.
10. Despite the paradigmatic nature of OC-5/85, it was in the exercise of its contentious
function that this Court found fertile ground for developing its case law on the correct
interpretation of the scope of the protection of freedom of the press, in particular, and of
freedom of expression, in general, in order to delimit the way such communication rights
could be restricted by Member States.