67
expression to be compatible with the American Convention, it must now turn its
attention, based on the proven facts in the instant case, to the question of whether
the restrictions allowed on freedom of expression through subsequent imposition of
liability were compatible with the Convention. At the outset it must be said that Mr.
Herrera Ulloa was a journalist stating facts or opinions of public interest.
125. The jurisprudence constante of the European Court of Human Rights with
regard to the permissible limits on freedom of expression has been that a distinction
must be made between the limits that apply when the restriction is to protect a
private individual and those that apply when the restriction is to protect a public
figure, such as a politician. That Court has written that:
the limits of acceptable criticism are wider with regard to a politician acting in his public
capacity than in relation to a private individual, as the former inevitably and knowingly
lays himself open to close scrutiny of his every word and deed by both journalists and
the public at large, and he must display a greater degree of tolerance. A politician is
certainly entitled to have his reputation protected, even when he is not acting in his
private capacity, but the requirements of that protection have to be weighed against the
interests of the open discussion of political issues. 102
Freedom of the press furthermore affords the public one of the best means of
discovering and forming an opinion of the ideas and attitudes of political leaders. More
generally, freedom of political debate is at the very core of the concept of a democratic
society which prevails throughout the Convention. 103
126.
In another judgment, the European Court ruled that:
[…] freedom of expression […]is applicable not only to "information" or "ideas" that are
favourably received or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb. […] The limits of permissible criticism are wider with
regard to the Government than in relation to a private citizen, or even a politician. In a
democratic system the actions or omissions of the Government must be subject to the
close scrutiny not only of the legislative and judicial authorities but also of the press and
public opinion. 104
127. Democratic control exercised by society through public opinion encourages
the transparency of State activities and promotes the accountability of public officials
in public administration, for which there should be a reduced margin for any
restriction on political debates or on debates on matters of public interest. 105
128. In this context, it is logical and appropriate that statements concerning public
officials and other individuals who exercise functions of a public nature should be
accorded, in the terms of Article 13(2) of the Convention, a certain latitude in the
broad debate on matters of public interest that is essential for the functioning of a
truly democratic system. The foregoing considerations do not, by any means, signify
that the honor of public officials or public figures should not be legally protected, but
that it should be protected in accordance with the principles of democratic pluralism.
102
Cf. Eur. Court H.R., Case of Dichand and others v. Austria, supra note 91, para. 39; Eur. Court
H.R, Case of Lingens v. Austria, supra note 91, para. 42.
103
Case of Lingens v. Austria, supra note 91, para. 42.
104
Cf. Eur. Court H.R., Case of Castells v. Spain, supra note 91, paragraphs 42 and 46.
105
Cf. Case of Ivcher-Bronstein, supra note 85, para. 155 ; see also Eur. Court H.R., Case of Feldek
v. Slovakia, Judgment of July 12, 2001, para. 88, and Eur. Court H.R., Case of Sürek and Özdemir v.
Turkey, Judgment of July 8, 1999, para. 60.
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