15.
In the case of Ricardo Canese v. Paraguay, the Court stipulated that “it is legitimate
for anyone who feels that his honor has been harmed to have recourse to the judicial
mechanisms established by the State to protect it” (para. 101), referring back to the case law
of the European Court of Human Rights, since the latter “has maintained consistently that,
with regard to the permissible limitations to freedom of expression, it is necessary to
distinguish between the restrictions that are applicable when the statement refers to a private
individual and, on the other hand, when it refers to a public persons such as a politician”
(para. 102). Taking these elements into account, in the Canese case, the Inter-American
Court determined that “in the case of public officials, of individuals who perform functions of a
public nature, and of politicians, a different threshold of protection should be applied, which is
not based on the condition of the person in question, but on the public interest of the
activities or actions of a certain individual (para. 103).
16.
The same reasoning and analysis was used in the case of Palamara Iribarne v. Chile,
which concerned a book written by Mr. Palamara Iribarne on aspects of the military institution
in which he worked. In the opinion of the Inter-American Court the distribution of the book
could not be obstructed, because the victim could not be prevented from exercising his
freedom of expression, and he should have been able to distribute the book using any
appropriate method to ensure that his ideas and opinions reached the largest audience, and
that this audience could receive this information” (para. 73). The Court reiterated its case law
in the sense that, with regard to public officials, the scope of protection of their right to honor
is different. Thus, the Court established that “statements concerning public officials or other
persons who perform functions of a public nature enjoy, in the terms of Article 13(2) of the
Convention, greater protection that provides an opening for a broad discussion, essential for
the functioning of a truly democratic system. These criteria apply in this case with regard to
the critical opinions or statements of public interest expressed by Mr. Palamara Iribarne in
relation to the actions of the Magallanes Naval Prosecutor during the criminal proceedings
against him in the military jurisdiction for the offenses of disobedience and failure to comply
with military obligations” (para. 82).
17.
The case of Kimel v. Argentina also involved a “conflict between the right to freedom
of expression regarding issues of public interest and right of public officials to have their
honor protected” (para. 51). Developing the concept of the weighing up exercise, in this case
the Court established that “it is imperative to ensure the exercise of both rights. 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 and extent of the elements that substantiate the considerations
regarding proportionality” (para. 51).
18.
In this Judgment, the Court has been obliged to recall some aspects of the content
and meaning of the decision adopted in the Kimel case because, during the processing of this
case, there were those who maintained that, in the Kimel judgment, the Inter-American Court
had determined that defining defamation and libel as offenses was incompatible with the
Convention. The Inter-American Court has never established this. In the present Judgment, the
Court sets out its consistent case law on this matter (para. 133) emphasizing that it is not
appropriate to attribute to the Court that, in the Kimel or any other case, it established that
defining defamation and libel as offenses could be, per se, contrary to the Convention.
19.
First, because, in general, the Court does not find that “punishment for the expression
of information or opinions is not considered contrary to the Convention” (para. 133). Second,
because the meaning of the Court’s judgment in the Kimel case, was specifically and
exclusively, that the State rectify “the lack of sufficient precision in the criminal laws that
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