solidarity with Emilio Palacio the amount of thirty million dollars in damages. It also established the civil
penalty of the legal entity of El Universo to pay US$10 million.
122.
According to the documentary evidence provided by the petitioners, among the various
functions according to the bylaws of El Universo, the Ecuadorian courts understood that the directors, by not
vetoing an insulting article, were participating or cooperating necessarily in its publication, so they should be
considered as intervening authors. This interpretation affects the functioning of the media and journalism,
assigning the directors and owners of the media the role of censors of journalists and columnists in the media.
123.
Finally, the first instance judgment sentenced the legal entity El Universo to pay compensation
of ten million dollars in damages. The judicial body understood that it was through the legal entity through
which the crime was executed. The alleged victims argued during the judicial process that the judicial body was
only competent to judge natural persons. However, the court concluded, through an extensive interpretation
of criminal and civil law that legal persons could also be subject to criminal proceedings.
124.
According to the Commission, there are several reasons to establish that the aforementioned
decisions violate the rights to freedom of expression of Carlos Nicolás Pérez Lappenti, Carlos Eduardo Pérez
Barriga, and César Enrique Pérez Barriga. First, as mentioned, in terms of the use of criminal law, the principle
of minimum intervention is applicable, because of the nature of criminal law as ultima ratio. From this also
derives the prohibition of the use of objective liability, establishing that the responsibilities apply to those who
have had a direct participation in the events.
125.
In the case under study, the author of the journalistic article in question is fully identified,
being a journalist and long-standing columnist who exercised journalism inside and outside the media for
which he worked. The article in question was published under his signature and it was not an editorial piece,
like the usual ones, that are published only under the media’s name and responsibility. On the other hand from
the evidence provided, there was no participation of the directors of the media in the preparation of the column,
on the contrary in a previous procedure they confirmed that the authorship of the column was from Mr. Palacio,
so it is noted that the courts acted arbitrarily to extend criminal liability to those who did not act on the criminal
offense that was in force at the time.
126.
The Commission understands that this is a violation of the principles of due process in the
criminal sphere, as well as to the protection of freedom of expression, given that the directors of the media
were sanctioned for facilitating its publication in the media of their property, as it usually happens in the
journalistic activity with a diversity of writers that otherwise would not reach the public.
127.
In the Commission's opinion, imposing objective civil liability through a criminal trial to
intermediaries -in this case, the newspaper's publishing company and on the media executives- for facilitating
the publication of the journalistic column, constitutes an obstacle to the exercise of freedom of expression, by
inhibiting the circulation of ideas, opinions, information from third parties, as well as being an invitation for
the media and its directors to apply private censorship to journalists for fear of suffering a criminal sanction.
Although media directors have specific responsibilities under the law for those contents in which they
intervene or that are part of its editorial page, these responsibilities must not be objective not of a criminal
nature. In the case of civil penalties, they must respond to the due diligence standard and be necessary and
proportional.
128.
Finally, in matters of compensation, the judgment condemns the three same directors of the
media and the legal entity (El Universo Company) jointly. The Commission notes that although it does not
consider disproportionate to apply joint liability to the company that owns a media, for the civil effects of the
damages caused by its dependents, in the present case the requirements established in international law are
not complied. Indeed, principle 10 of the Declaration of Principles of the IACHR on Freedom of Expression
states the following: "Privacy laws should not inhibit or restrict investigation and dissemination of information
of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in
those cases in which the person offended is a public official, a public person or a private person who has
voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in
disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that
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