14
offensive or disruptive to authorities or a sector of society.
68
requirements of pluralism inherent in a democratic society.
As the Court has stated, these are the
59.
Notwithstanding its enormous importance, freedom of expression is not an absolute right.
Article 13.2 of the Convention, which prohibits prior censorship, also provides for the possibility of establishing
restrictions on freedom of expression in response to abusive exercises of this right. These restrictions are of an
exceptional nature and should not limit, beyond what is strictly necessary, the full exercise of freedom of
69
expression, nor become a direct or indirect method of censorship. As opposed to other rights enshrined in
the Convention, the right to freedom of expression regulates in detail its possible limitations.
60.
In this regard, both the Commission and the Inter-American Court have consistently held
that any measure restricting freedom of expression must fulfill three requirements, as set forth in Article
13.2, in order to be consistent with the American Convention, to wit: (1) the limitation must be established
formally and materially by law; (2) the limitation must be aimed at fulfillment of objectives authorized by the
Convention; and (3) the limitation must be suitable to achieve the intended objective, necessary in a
democratic society for the achievement of the purposes sought by it, and strictly proportional to the aim
70
pursued.
61.
In the instant case, the parties agree that the criminal conviction for the crime of slander
imposed on Carlos and Pablo Memoli entailed a restriction on their right to freedom of expression. They
disagree, however, as to whether this restriction was consistent with the American Convention. As indicated
71
in its Admiisibility Report in the instant case, the Commission’s task in this case is not to act as an
appeals court reviewing the domestic decisions that declared the petitioners guilty, but to assess whether
the criminal conviction of Carlos and Pablo Memoli represented a subsequent imposition of liability in
accordance with Article 13.2 of the Convention, or whether on the contrary it violated the terms of that
provision. In order to examine this question, the IACHR shall refer to the criteria set forth in the preceding
paragraph.
68
IA Ct. of HR, Case of Ivcher Bronstein Vs. Peru. Merits, Reparations and Costs. Judgment Corte IDH, Case Ivcher
Bronstein Vs. Peru. Merits, Reparations and Costs. Judgment February 6, 2001. Series C No. 74, pars. 151-52, available at:
http://www.corteidh.or.cr/docs/casos/articulos/Seriec_74_esp.pdf; IA Ct. of HR, Case of Kimel Vs. Argentina. Merits, Reparations
and Costs. Judgment May 2, 2008. Series C No. 177, par. 87, http://www.corteidh.or.cr/docs/casos/articulos/Seriec_74_esp.pdf; IA
Ct. of HR, Case of Ricardo Canese Vs. Paraguay. Merits, Repartions and Costs. Judgment August 31, 2004. Series C No. 111,
par. 83, available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_111_esp.pdf. Also see Annual Report of the InterAmerican Commission on Human Rights, 2009 Annual Report of the Special Rapporteurship for Freedom of Expression, pgs. 236238, pars 6-10, available at: http://www.cidh.oas.org/annualrep/2009sp/RELE%20ESP%202009.pdf.
69
Cfr. IA Court of HR, Case of Herrera Ulloa Vs. Costa Rica. Preliminary Objections, Merits, Reparation and Costs.
Judgment July 2, 2004. Series C No. 107, par. 120, available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_107_esp.pdf;
IA Ct. of HR, Case of Ricardo Canese Vs. Paraguay. Merits, Repartions and Costs. Judgment August 31, 2004. Series C No. 111,
par. 95, and IA Ct. of HR, Case of Palamara Iribarne Vs. Chile. Merits, Reparations and Costs. Judgment November 22, 2005,
Series C No. 135, par. 79, available at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_135_esp.pdf; IA Ct. of HR, Case of
Kimel Vs. Argentina. Merits, Reparations and Costs. Judgment May 2, 2008. Series C No. 177, par. 54. Also see Annual Report of
the Inter-American Commission on Hman Rights, 2009 Annual Report of the Special Rapporteurship for Freedom of Expression, pg.
258, pars. 68 and 69, available at: http://www.cidh.oas.org/annualrep/2009sp/RELE%20ESP%202009.pdf
70
Cfr. IA Ct. of HR, Case of Uson Ramirez Vs. Venezuela. Preliminary Objection, Merits, Reparations and Costs.
Judgment
November
20,
2009.
Series
C
No.
207,
par.
49,
available
at:
http://www.corteidh.or.cr/docs/casos/articulos/seriec_207_esp.pdf; IA Ct. of HR, Case of Kimel Vs. Argentina. Merits, Reparations
and Costs. Judgment May 2, 2008. Series C No. 177, par. 56 and IA Ct. of HR, Case of Tristan Donoso Vs. Panama. Preliminary
Objection, Merits, Reparations and Costs.
Judgment January 27, 2009. Series C No. 193, par. 56, available at:
http://www.corteidh.or.cr/docs/casos/articulos/seriec_193_esp.pdf. Also see Annual Report of the Inter-American Commission on
Human Rights, 2009 Annual Report of the Special Rapporteurship for Freedom of Expression, pg. 258, pars. 68 and 69, available
at: http://www.cidh.oas.org/annualrep/2009sp/RELE%20ESP%202009.pdf.
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IACHR. Report No. 39/08, Petition 56-98. Admissibility, Carlos and Pablo Mémoli, Argentina, July 23, 2008, para. 55,
available at: http://www.cidh.oas.org/annualrep/2008sp/Argentina56-98.sp.htm.