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American System. The classification and penalization of slander are not
necessary in a democratic society; they are disproportionate and constitute
an indirect means of restricting freedom of expression and information;
d)
The Court must establish specific standards that are consistent with
the Convention as regards laws that restrict freedom of expression in the
Americas;
e)
The “reduced penalization” proposed by the Commission limits the
non-penalization assumptions to questions referring to public individuals in
relation to matters of public interest and maintains the criminal classification
of offenses against honor. Moreover, it suggests that an investigation must
be initiated to determine whether a public individual or a matter of public
interest is involved, which produces effects that harm freedom of expression.
In this respect, despite the existence in Paraguay of a clear and precise clause
ordering the judge not to penalize matters related to “public considerations,”
according to Article 377, paragraph 3, of the former Penal Code, the judge of
first instance convicted Mr. Canese;
f)
The need for subsequent imposition of liability required by the
Convention is violated by the penalization of slander, because there are less
restrictive means, such as civil sanctions and regulation of the right to
rectification or reply, which can protect the honor of the individual. The legally
protected attribute of honor that the Convention attempts to safeguard may
be protected by less stigmatizing means than penal laws. By restricting
democratic debate unnecessarily, the requirement of need is not observed;
g)
If it is determined that there has been an abuse in the exercise of the
right to freedom of expression that violates the honor of a person, civil
proceedings allow this to be fully and promptly compensated. The right to
rectification or reply is embodied in Article 28 in fine of the Paraguayan
Constitution, which “appears to suggest civil proceedings as the most
appropriate way to protect the right to freedom of expression.” The Civil Code
also allows reparation of the possible harm caused to the right to honor of an
individual, as a result of inexact publications, considered slanderous or
defamatory, by a pecuniary compensation for damages;
h)
The application of civil sanctions could also be an indirect means of
restricting freedom of expression if certain essential elements are not fulfilled.
These include: differentiation between matters that are of public interest and
those that are not; differentiation between public and private individuals, and
also distinction between statements of fact and value judgments, because the
latter cannot be verified. Otherwise, civil sanctions can have an intimidating
effect on the defendant in a civil case;
i)
The statements made by Mr. Canese occurred in the context of the
public debate on matters of public interest that involved two presidential
candidates. This is the kind of public debate that the Convention tries to
encourage. Also, the restriction of information in an electoral context “has
been classified as a specific form of electoral fraud;”
j)
“[E]ven if there had been some excess or lack of precision in [Mr.
Canese’s] statements, if the language had been offensive, or if his opinions
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