authorities that had qualified that the said matter under analysis had overstepped the range
of opinion for the purpose of slandering, and that there was an animus injuriandi or malice.
Similarly, the Court noted that the weighting carried out by the domestic authorities between
freedom of expression and the right to honor was adequate, justifying the imposition of the
criminal sanction. 4 It should be noted that the case does not refer to opinions expressed on
the action of public officials, nor on matters of public interest, but rather in actions between
individuals. These elements, although not decisive, influence the assessment of the specific
case.
10.
This case differs from the way in which the Court has classified the imposition of
subsequent liabilities in most of its case law, since it reiterates, following the same analysis
as in the case of Álvarez Ramos v. Venezuela, the criterion under which an opinion article,
produced by a journalist regarding the acts of a public official carrying out their duties, cannot
be subject to a criminal sanction (par. 120). In this way, the judgment affirms that in the case
of the article "NO to lies", since it is an opinion article criticizing the actions of then President
Rafael Correa Delgado, regarding facts of well-known public interest, the existence of criminal
proceedings and a sanction constitutes per se a violation of the right to freedom of expression
in terms of Article 13 of the American Convention.
11.
The position taken by the majority in this case, despite the fact that it may be motivated
by noble intentions to expand the protection of freedom of expression in the region, has a
series of difficulties that it is pertinent to point out. In the first place, Article 13(2) of the
Convention does not exclude the possibility of a criminal sanction to ensure "respect for the
rights or reputation of others", or "the protection of national security, public order or public
health or morals”. What it expressly prohibits is prior censorship, which is a characteristic of
the broad protection of freedom of expression, but which cannot be extrapolated to other
aspects without disrupting the meaning of said protection. Of course, the excessive use of
criminal law to establish subsequent liability results in a violation of freedom of expression.
This is not the case when it is used as a means to protect relevant legal interests (such as
other rights), in accordance with the very conditions established by the Convention.
12.
The precedents of the Court prior to the case of Álvarez Ramos have been consistent
in that the classification of the crime of libel and slander must comply with the principle of
legality and minimal intervention and criminal law as ultima ratio. In addition, that the use of
criminal law for the protection of other rights must be analyzed with special caution, taking
into account the intent of the person who issued the opinions, the characteristics of the
damage caused, and the degree of protection given to certain statements (for example, those
of public interest that involve the acts of authorities) in order to qualify whether the use of
criminal law is legitimate. These conditions are analyzed when evaluating the need for the
measure and when the proportionality of the sanction is assessed. It has also been recognized
that the burden of proof rests with the decision maker. Thus, the Court has been able to give
greater protection to speeches of opinion which have a public interest, and which refer to the
authorities, without establishing an absolute rule that prohibits the imposition of said
sanctions.
13.
In addition to the norm, and most of the Court's case law, it is important not to lose
sight of the possibility of criminal sanctions being applied in the case of the most serious
violations of other fundamental rights (such as the honor and dignity) being of special
relevance to maintain a healthy balance between the different rights recognized by the
American Convention. It is important to keep in mind that opinions, even when referring to
issues of public interest, can cause serious damage to fundamental interests for a public
4
Cf. Case of Mémoli v. Argentina. Preliminary Exceptions, Merits, Reparations and Costs. Judgment of August 22,
2013, Series C No. 265., par. 129-149.
3
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