rendered in the cases Herrera-Ulloa v. Costa Rica (para. 120), Ricardo Canese v.
Paraguay (para. 95) and Palamara-Iribarne v. Chile (para. 79). It should also be
remembered that, in accordance with the provisions of the Inter-American
Democratic Charter (Article 4), freedom of expression and of the press is one of the
fundamental components of the exercise of democracy. Being a right to which all
individuals are entitled, the right to freedom of thought and expression may not be
restricted or matched with the rights of journalists or with the exercise of the
journalistic profession, as it is a right which is enjoyed by all individuals and not
only by journalists through the mass media.
6.
The Court has repeatedly held in its case law that this right may be subject
to subsequent liability and restrictions, as provided for in Article 13 of the
Convention (subparagraphs 2, 4 and 5). In this regard, the Court has pointed out
that such restrictions have an exceptional nature and must not limit the full
exercise of freedom of thought and expression beyond what is strictly necessary so
that they do not become a direct or indirect means of prior censorship.
7.
In fact, the exercise of the right to freedom of thought and expression is
limited by other fundamental rights. In this regard, the right to have one’s honor
respected is the main legal reference when considering such limitations. This right
is specially protected by the Convention in the same Article 13, as it provides that
the exercise of the right to freedom of thought and expression must “ensure
respect for the rights or the reputation of others” (Article 13(2)). In much the same
manner as all individuals are entitled to the right to freedom of thought and
expression and not only journalists or the mass media, in accordance with the
Convention, not only journalists must ensure the respect for the rights or the
reputation of others, respecting the right to have one’s honor respected, but also all
individuals who exercise such right to freedom of thought and expression.
8.
The State must ensure to all individuals who consider that their right to have
their honor respected has been impaired, the availability of the appropriate judicial
mechanisms so that the pertinent responsibilities be determined and punishment be
imposed. Should the State fail to do so, it would be held to have international
responsibility. In this judgment, the Court has clearly established the obligations of
the State regarding this matter in its capacity as guarantor of all fundamental
rights. Along these lines, it is relevant that the Court has reiterated its case law,
according to which the State has “a key role in trying to determine responsibilities
and impose sanctions as may be necessary to achieve such purpose. Resorting to
civil or criminal proceedings will depend on the considerations discussed below”
(para. 75). Such is, therefore, the specific corollary of the State’s duty to ensure
the rights enshrined by the Convention.
9.
In the exercise of the right to freedom of thought and expression, the mass
media are not the only party involved, but, certainly, an essential one. In its case
law, the Court has determined that the mass media play an essential role as
“vehicles for the exercise of the social dimension of freedom of expression in a
democratic society.”1 Notwithstanding, the Court has ruled that, “… it is vital that
[the media] are able to gather the most diverse information and opinions. The
media, as essential instruments of freedom of thought and expression, are required
to discharge their social function responsibly.”2
10.
In this judgment, the Court has noted the need to protect the human rights
of those who “face the power of the media” (para. 57). It has further established
1
Cf. Case of Herrera-Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs.
Judgment of July 2, 2004. Series C No. 107, para. 117.
2
Cf. Case of Herrera-Ulloa, supra note 1, para. 117.