30
.
105. Freedom of expression, especially in matters of public interest “is a cornerstone
angular in the existence itself of a democratic society.”72 Not only must it be guaranteed in
what refers to the diffusion of information or ideas that are received favorably or that are
considered as inoffensive or indifferent, but also in what refers to those that result
unpleasant for the State or any sector of the population. These are the demands of
pluralism, which imply tolerance and a spirit of openness, without which there cannot be a
democratic society. Any condition, restriction, or punishment in this subject must be
proportionate to the legal purpose sought. 73 Without an effective guarantee for freedom of
expression, the democratic system is weakened and pluralism and tolerance suffer losses;
the mechanisms of citizen control and complaints may become ineffective and, in short, a
fertile ground for them to enroot authoritarian systems is created. 74
106. Despite all the aforementioned, the freedom of expression is not an absolute right
and may be subject to restrictions,75 especially when it interferes with other rights
guaranteed by the Convention.76 Given the importance of freedom of expression in a
democratic society and the responsibility it implies for social communication media firms
and for those who professionally exercise these tasks, the State must minimize the
restrictions to information and balance, as much as possible, the participation of the
different movements present in the public debate, promoting informative pluralism. The
protection of the human rights of whoever faces the power of the media, who must exercise
the social task it develops with responsibility,77 and the effort to ensure structural conditions
that allow an equal expression of ideas78 can be explained in these terms.
107. The effective exercise of freedom of expression implies the existence of conditions
and social practices that favor it. It is possible that this freedom be illegally restricted by
regulatory or administrative acts of the State or due to conditions de facto that place those
who exercise it or try to exercise in a direct or indirect situation of risk or greater
vulnerability due to acts or omissions of state agents or individuals. Within the framework of
its obligations to guarantee the rights acknowledged in the Convention, the State must
abstain from acting in such a way that favors, promotes, fosters, or deepens that
72
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism. (Arts. 13
and 29 American Convention on Human Rights). Advisory Opinion OC-5/85, supra note 71, para. 70. See also
Case of Herrera Ulloa V. Costa Rica, supra note 71, para 112; Case of Ricardo Canese V. Paraguay, supra note 71,
para. 82; Case of Kimel V. Argentina, supra note 71, paras. 87 and 88; and Case of Apitz Barbera et al. (“First
Court of Administrative Disputes”) V. Venezuela, supra note 31, para. 131.
73
This is how the Inter-American Democratic Charter acknowledges that: “Transparency in government
activities, probity, responsible public administration on the part of governments, respect for social rights, and
freedom of expression and of the press are essential components of the exercise of democracy.” Cf., also, Case of
Ivcher Bronstein V. Peru, supra note 71, para. 152; and Case of “The Last Temptation of Christ” (Olmedo Bustos et
al.) V. Chile, supra note 71, para. 69.
74
Cf., in similar terms, Case of Herrera Ulloa V. Costa Rica, supra note 71, para. 116.
75
Cf. Case of Herrera Ulloa V. Costa Rica, supra note 71, para. 120; Case of Apitz Barbera et al. (“First
Court of Administrative Disputes”) V. Venezuela, supra note 31, para.131; Case of Kimel V. Argentina, supra note
71, para. 54; Case of Ricardo Canese V. Paraguay, supra note 71, para. 95; Case of Palamara Iribarne V. Chile.
Merits, Reparations, and Costs. Judgment of November 22, 2005. Series C No. 135, para. 79.
76
Cf. Case of Kimel V. Argentina, supra note 71, para. 56; and Case of Apitz Barbera et al. (“First Court of
Administrative Disputes”) V. Venezuela, supra note 31, para. 131.
77
78
Cf. Case of Herrera Ulloa V. Costa Rica, supra note 71, paras. 117 and 118.
Cf. Case of Kimel V. Argentina. Merits, supra note 71, para. 57. The Tribunal has stated that “the plurality
of means of communication, the prohibition of any monopoly with regard to them, whichever the form they wish to
adopt, is indispensable.” Cf. The Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism. OC-5/85, supra note 71, para. 34.