Limitations to rights
9.
Article 29(d) of the Convention establishes that “No provision of this Convention shall
be interpreted as […] excluding or limiting the effect that the American Declaration of the
Rights and Duties of Man and other international acts of the same nature may have.”
Consequently, Article XXVIII of the Declaration is applicable, according to which “The rights
of man are limited by the rights of others, by the security of all, and by the just demands of
the general welfare and the advancement of democracy.”
10. Specifically, in relation to freedom of thought and expression, Article 13(2) of the
Convention establishes the following:
2.
The exercise of the right provided for in the foregoing paragraph shall not be subject to prior
censorship but shall be subject to subsequent imposition of liability, which shall be expressly
established by law to the extent necessary to ensure:
a)
b)
respect for the rights or reputations of others; or
the protection of national security, public order, or public health or morals.
In other words, in the case of freedom of thought and expression there are specific limits
that – respecting the requirements that it is “subject to subsequent imposition of liability”
“expressly established by law” – explicitly establish the need to ensure “respect for the
rights or reputations of others.” Meanwhile, the Convention does not include any provision
that establishes specific limits to the right to honor or reputation and to dignity. Moreover, it
would be very difficult, if not impossible, to imagine a situation in which the exercise or
enjoyment of this right could affect another right, in a way that would entail the application
of the general limitation indicated in paragraph 8.
11.
Nevertheless, in its previous judgments, the Court has understood that in certain
precisely defined cases, the right to honor must cede to freedom of thought and expression,
owing to the importance of the latter for a democratic society. In the following paragraphs,
the elements that, in specific circumstances (which, as will be seen, are not present in the
instant case) entail the prevalence of one right over the other are analyzed.
The weighing up between the two rights
12.
The Court initiated its reasoning by proclaiming the equivalence of the two rights and
the need to weigh them and to harmonize them. For example, in one case it stated the
following:
The Court recognizes that both freedom of thought and expression and the right to have
one’s honor respected, as enshrined by the Convention, are fundamental rights. It is,
therefore, imperative to ensure the exercise of both. In this regard, the prevalence of
either of them in a particular case will depend on the considerations made as to
proportionality. The solution to the conflict arising between some rights requires
examining each case in accordance with its specific characteristics and circumstances,
considering the existence of elements and the extent thereof on which the considerations
regarding proportionality are to be based. 5
And, further on in the same judgment, it stipulated:
5
Case of Kimel v. Argentina, supra, para. 51.
3