therapeutic purposes, that of theft because unless starving or in a state of need is
not added, or that of seizure for not making explicit unless it is in exercise of the
right of retention.
110. In any case, this Court has made it clear, especially from the case of Kimel v.
Argentina 32, that weighing up circumstances and values always prevails, without
automatic resolution with the aforementioned legal formulas, since, for example, it
cannot be considered that the justification for the injury to an official's honor takes
place in the face of an extremely insignificant or trivial public interest, as is also the
case when weighing the limit of any other cause of justification (such as an absolutely
disproportionate defense, that of the electrification of a fence so that the child does
not steal a flower).
IV.2. Public Interest: the weighting of values
IV.2.a. The weighting of values in general
111. In normal situations, it is necessary to protect journalism against punitive
power when it comes to accusations directed at the authorities, for the sake of the
right to criticize and publicly denounce, because this results in the proper functioning
of the administration and institutions in general.
112. This protection is particularly essential when it comes to the possible
commission of crimes of bribery, use of information, favor, illicit enrichment and other
analogous crimes that are usually included in the vague characterization of
corruption.
113. Here, two legal values are in opposition: the right to freedom of expression
and criticism, and the official’s right to the honor. As in any situation in which two
positive legal values converge, it is necessary to weigh them in each case, as this
Court has done in its case law. In short, what this weighting should establish in each
case, is the limit to the legitimate exercise of the right of denunciation and journalistic
criticism enshrined in the constitutions and international law.
114. This, as was pointed out, is what occurs in normal situations, but the situation
is not normal in a large part of our region, where there is no plurality of media, but
instead, due to the media market deregulation, there are cases of oligopoly or
monopoly which would not be, and are not, admissible in any country in the northern
hemisphere.
115. In these abnormal situations, the monopolistic or oligopolistic concentration
of print, radio, television and virtual media often allows communication to be
distorted and a company or business or economic group to set up a completely
distorted created reality.
116. The highly respectable opinion of the majority of the Court itself points to this
disadvantage, and it is appropriate to point out that in these extremes there is the
paradox that invoking freedom of opinion is likely to harm freedom of opinion itself,
since the media monopoly has in its hands the ability to organize silence regarding
events of public interest and their protagonists.
117. But it is necessary to point out that, in the abnormal situation of media
monopolies and oligopolies, the problem goes beyond respect for freedom of opinion
32
I/A Court HR., Case of Kimel v. Argentina, Judgment of May 2, 2008, Merits, Reparations and Costs.
Series C No. 177.
18
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