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and criminal penalties have the same chilling effect on freedom of expression.
That civil sanction is a violation of the freedom of expression guaranteed
under Article 13 of the Convention, as no civil wrongdoing was committed;
and because the penalty is disproportionate;
e)
according to the doctrine of actual malice, publication of news on the
activities of a public official that fall within the domain of public interest, can
only lead to imposition of civil liability if it can be proved that it was made
with malice, with full knowledge that the information being spread was false
or with reckless disregard for whether it was true or false;
f)
the general rule is that the accessory follows the fate of the principal;
therefore, the civil damages ordered are a result of the criminal conviction;
“both will be undone by the judgment that the Inter-American Court
eventually delivers”;
g)
Article 1(2) of the Convention does not state, either directly or
literally, that legal persons are always and necessarily precluded from the
Convention’s sphere of application. Every situation will have to be examined
for the context in which the matter occurred in order to determine, in
accordance with the object and purpose of the Convention, when the principal
interest at stake involves the rights of a “human being,” which is what the
Convention recognizes;
h)
in certain situations, violation of Convention-recognized rights also
involves violation of legal persons’ rights, or can only happen through the
violation of the rights of certain legal persons; and
i)
“La Nación” was held jointly and severally liable for the sole reasons
that it is the business that owns the newspaper that published the convicted
journalist’s articles. That civil award is a violation of freedom of expression
and is manifestly disproportionate in the instant case.
102(6)
With regard to the order to take down the existing link at the “La Nación
Digital” website between the surname Przedborski and Mr. Mauricio Herrera Ulloa’s
articles that were the cause of the criminal complaint and civil suit, and the order to
establish a link between those articles and the “Now, Therefore” portion of the
judgment of conviction, the alleged victims’ representatives argued that:
a)
the order to eliminate the link constitutes interference and a form of
State censorship of the news, in violation of Article 13 of the Convention. The
order to create another link with the operative part of the guilty verdict is a
restriction on freedom of expression, as it dictates what the content of the
news will be, which is not within the limits permitted under Article 13 of the
Convention; and
b)
the direct effect of the orders given in the judgment of conviction is
prior censorship, which presupposes control and veto power over news before
it is disseminated; thus, the individual whose expression has been censored
and society as a whole are prevented from exercising their right to freedom of
expression and information. The orders also impair the journalist’s right to
impart information on issues of legitimate public interest that are available in
the foreign press.
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