58
Republic, “were necessarily important in a democratic society, working towards a
participative and pluralist power structure, a matter of public interest.”
94.
In this case, when making the statements for which he was sued, Mr. Canese
was exercising his right to freedom of thought and expression in the context of an
electoral campaign, with regard to a presidential candidate who is a public figure, on
matters of public interest, by questioning the competence and suitability of a
candidate to assume the presidency of the Republic. During the electoral campaign,
Mr. Canese, as a presidential candidate, was interviewed about the candidacy of Mr.
Wasmosy by journalists from two national newspapers. When publishing Mr.
Canese’s declarations, the newspapers “ABC Color” and “Noticias” played an
essential role as vehicles for the exercise of the social dimension of freedom of
thought and expression,127 because they sought and transmitted to the electorate
the opinion of one of the presidential candidates about another, which ensured that
the electoral had more information and different opinions before it took a decision.
4)
Restrictions to freedom of thought and expression allowed in a democratic
society
95.
The Court considers that is it important to underscore, as in previous cases,
that the right to freedom of expression is not an absolute right, but may be
restricted, as established in paragraphs 4 and 5 of Article 13 of the Convention and
in Article 30 thereof. Moreover, in paragraph 2 of the said Article 13, the American
Convention indicates the possibility of establishing restrictions to freedom of
expression through the subsequent imposition of liability in cases of an abusive use
of this right. However, this should in no way limit, more than strictly necessary, the
full scope of freedom of expression and become a direct or indirect means of prior
censorship.
96.
Owing to the circumstance of the instant case, the Court considers it
necessary to examine in detail whether, in order to impose subsequent liability on
Mr. Canese for his statements, the requirement of necessity in a democratic society
is met.128 The Court has indicated that the “necessity” and, hence, the legality of
restrictions imposed on freedom of expression under Article 13(2) of the American
Convention, depend upon showing that the restrictions are required by a compelling
public interest. If there are various options to achieve this objective, the one which
least restricts the protected right should be selected. Given this standard, it is not
enough, for example, to demonstrate that a law performs a useful or desirable
purpose; to be compatible with the Convention, the restrictions must be justified by
reference to collective purposes which, owing to their importance, clearly outweigh
the social need for the full enjoyment of the right that Article 13 guarantees and do
not limit the right established in this Article more than is strictly necessary. In other
words, the restriction must be proportionate to the interest that justifies it and
closely tailored to accomplishing this legitimate objective, interfering as little as
possible with the effective exercise of the right to freedom of expression.129
127
Cf. Case of Herrera-Ulloa, supra note 15, para. 117; and Case of Ivcher-Bronstein, supra note
114, para. 149.
128
129
Cf. Case of Herrera-Ulloa, supra note 15, para. 120.
Cf. Case of Herrera-Ulloa, supra note 15, paras. 121 and 123; Compulsory Membership in an
Association prescribed by Law for the Practice of Journalism, supra note 114, para. 46; see also Eur. Court
H. R., Case of The Sunday Times v. United Kingdom, supra note 120, para. 59; and Eur. Court H. R., Case
of Barthold v. Germany, supra note 120, para. 59.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos