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.

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