16.
The right to have one’s honor respected must, therefore, be protected.
Particularly, the so-called “objective honor,” which refers to the value that others
attach to the individual in question insofar as his reputation or his good name in his
social context has been impaired. Along these lines, in accordance with the legal
provisions that protect the right to have one’s honor respected, freedom of thought
and expression as a fundamental right does neither sustain nor legitimize the use of
abusive expressions or terms which go beyond the legitimate exercise of the right
to express one’s opinions or the exercise of the right to criticism.
17.
Law has the intrinsic capability to properly solve the conflicts which may
arise between rules that protect opposing legal rights. Thus, freedom of thought
and expression and the right to have one’s honor respected are the poles of an
important conflict. In this regard, judges play an essential role in effectively
determining the limits of each of said rights, while protecting the full exercise of
and respect for both. The State must comply with its obligation to simultaneously
ensure the right to freedom of thought and expression and the right to have one’s
honor respected, as established by the Convention.
18.
It is not a matter of categorizing these rights, as this would come into
conflict with the Convention. The unitary and interdependent nature of rights would
be confronted with the attempt to consider rights as being “first” or “second”
category. What is relevant is defining the limits of each of these rights while
seeking to reconcile them. Every fundamental right must be exercised with regard
for other fundamental rights. In this reconcilement process, the State has a key
role in trying to determine responsibilities and impose sanctions as may be
necessary to achieve such purpose through the appropriate judicial mechanisms.
IV.
Legitimacy of the various judicial mechanisms
protection of the right to have one’s honor respected
for
the
19.
In this judgment the Court has dismissed the dichotomy posed by
civil/criminal proceedings as a divortium acquarum regarding the respect or lack of
respect for the right to freedom of thought and expression in the exercise of the
“subsequent liability” referred to in Article 13 of the Convention. Though in the
instant case the Court has ruled that there has been an abusive use of the State’s
punitive power, the Court has stated that “criminal proceedings are suitable as, by
threatening to impose sanctions, they serve the purpose of preserving the legal
right whose protection is sought; in other words, they may help achieve such
purpose” (para 71). Even more, the Court emphasizes that the State must provide
society with the mechanisms needed “to determine responsibilities and impose
sanctions as may be necessary to achieve such purpose” (para. 75).
20.
One of such possible judicial mechanisms are criminal proceedings, as the
Court has clearly established that “it does not deem any criminal sanction regarding
the right to inform or give one’s opinion to be contrary to the provisions of the
Convention” (para. 78). Notwithstanding, it has established that the proportionality
and reasonability principles are to be observed when stating that “…this possibility
should be carefully analyzed, pondering the extreme seriousness of the conduct of
the individual who expressed the opinion, the bad faith in which or the injurious
purpose with which it was expressed, the characteristics of the unfair damage
caused, and other information which shows the absolute necessity to resort to
criminal proceedings in exceptional cases” (para. 78).
21.
Given the need to simultaneously ensure the right to have one’s honor
respected and the right to freedom of thought and expression, the Court has ruled
that “… criminal proceedings should be resorted to where fundamental legal rights
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