journalists not only should not be less, but rather should be more, owing to the collective
(and instrumental) importance of their work in a democratic society. And it is the professional
activities of the press that counteract the selective suppression of the circulation of
information considered embarrassing for the State by introducing critical discourse on the
exercise of public functions that are potentially aberrant.
64. It should be pointed out that limitations to press freedom have particular characteristics
when compared to limitations to freedom of expression in its individual perspective. Any
measure that seeks to restrict the free functioning of the media has an institutional effect in
addition to affecting organs and actors that are essential for the proper functioning of the
democratic rule of law: newspapers and journalists. Electoral accountability in modern
societies and the expectation that institutional conditions exist for the effective alternation in
power depend on the electorate receiving a considerable amount of information; without this,
the voter may have to make his decision in the dark.
65. This significant institutional element refers us back to the need to ensure the full
effectiveness of what this Court calls the social dimension of the right established in Article
13 of the American Convention: “the right of everyone to know the opinions, reports and news
imparted by third parties.” 49 Without this knowledge, the official truth may easily take root,
and the tendency is that the unpredictable nature of the electoral process – a crucial sign of
the modern democratic system – will be jeopardized by a deferential attitude and even by
a sort of Caesarian cult in relation to the authorities, due to uninformed deliberative
procedures.
66. Returning to a dogmatic analysis, it is sufficient to recall the restrictive test used by this
Court in previous cases to reach this conclusion. In the previously mentioned case of Herrera
Ulloa v. Costa Rica, the Court concluded that subsequent liability for the exercise of freedom
of expression was in keeping with the Convention when: (i) it was expressly established by
law; (ii) its purpose was to protect the rights or reputation of others, and (iii) it was necessary
for the functioning of a democratic society. 50
67. That said, analyzing the liability mechanism in article 7 of the Costa Rican Printing Act,
I note that the criteria of legality and appropriate purpose appear to have been met, because
the purpose was to safeguard the right to honor. However, we must ask ourselves whether
the legal provision meets the requirement of necessity.
68. In other words, is there an essential social need – an expression used by the Court –
that would justify the imposition of a harsher sanction for offenses against honor when they
are committed through the press? I consider that the case file does not reveal the existence
of this justification. Taking into account that a general criminal offense has been defined to
suppress such offenses (articles 145 and 146 of the Criminal Code), as well as a civil offense
(article 1045 of the Civil Code), I consider that, in that context, the establishment of a criminal
sanction linked to the exercise of a fundamental right departs from the principle of strict
necessity established by this Court’s case law. It would also suppose an unacceptable element
of non-isonomy because the fact that the person emitting the message is exercising press
freedom professionally would be a reason to increase their levels of protection and not to
subject them to stricter criminal control: the infamous strong arm of the State Party’s punitive
powers.
49
IACtHR. Advisory Opinion 05/1985, §32. Similarly: “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile.
Judgment of February 5, 2001, §66, and Granier et al. v. Venezuela. Judgment of June 22, 2015, §136.
50
IACtHR. Case of Herrera Ulloa v. Costa Rica. Judgment of July 2, 2004, §120.