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Inter-American Standard on Defamation

Legality (1)

Legitimate Grounds (2)

Necessity (3)

Proportionality (4)

Public Interest speech (5)

There is no crime of opinion (6)

Actual Malice (7)

Burden of proof (8)

Only Civil Law (9)

Restrictions must be provided by law *1*

Sufficient precision *2*

Suitability and legitimate purpose of the restriction: rights, reputation of others & national security, public order, public health or morals *3*

Necessity (in a democratic society): the existence of a ‘pressing social need’, the restrictions must be required by a compelling governmental interest and framed as not to limit the freedom of speech more than is necessary *4*

Proportionality: Proportionate to interest to be protected *5*

Speech involving public officials / candidates / public figures / or be of public interest is a specially protected speech *6*

Prohibition against the criminalization of subjective opinions or value judgment *7*

In cases involving matters of public interest punishment should not be rendered without proving the intent of inflict harm, was fully aware that false news disseminated or acted with gross negligence in efforts to determinate the truth or falsity *8*

At all stages the burden of proof must fall on the party who brings the criminal (or civil) proceedings *9*

A public official, a public person or a private person who has voluntarily become involved in matters of public interest can only use civil law to protect their honor or reputation *10*

1

Any limitation or restriction must be both formally and materially provided for by law. Kimel Vs. Argentina. ¶ 63.

2

(a) Criminal Law: Must respect the nullum crimen nulla poena lege praevia principle. They must be formulated previously, in a an express, accurate, and restrictive manner. Kimel Vs. Argentina. ¶ 63. (b) Civil law: Formulated with sufficient precision to enable people to regulate their conduct so as to be able to predict with a degree hat is reasonable under the circumstances, the consequences that a given action may entail. Fontevecchia y D´Amico Vs. Argentina: ¶ 89. “[…] The precise definition [taxativeness] of a civil norm may be different from that required by the principle of legality in criminal matters, given the nature of the conflicts that the first is designed to solve.”

3

(a) Criminal Law: Must respect the nullum crimen nulla poena lege praevia principle. They must be formulated previously, in a an express, accurate, and restrictive manner. Kimel Vs. Argentina. ¶ 63. (b) Civil law: Formulated with sufficient precision to enable people to regulate their conduct so as to be able to predict with a degree hat is reasonable under the circumstances, the consequences that a given action may entail. Fontevecchia y D´Amico Vs. Argentina: ¶ 89. “[…] The precise definition [taxativeness] of a civil norm may be different from that required by the principle of legality in criminal matters, given the nature of the conflicts that the first is designed to solve.”

4

Tristan Donoso Vs. Panama ¶ 78. Kimel Vs. Argentina. ¶ 78. “The Court 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; however, this possibility should be carefully analyzed, pondering the extreme seriousness of the conduct of the individual who expressed the opinion, his actual malice, the characteristics of the unfair damage caused, and other information which shows the absolute necessity to resort to criminal proceedings as an exception. At all stages the burden of proof must fall on the party who brings the criminal proceedings.”

5

Fontevecchia y D´Amico Vs. Argentina: ¶ 68. “[…] the judiciary must take into account the context in which expressions are made in matters of public interest. The court must “assess respect for the rights or reputations of others with the value these have in the open debate of democratic society on issues of public interest or concern.” and ¶ 74 “The fear of a disproportionate civil sanction may clearly be as or more intimidating and inhibiting for the exercise of freedom of expression than a criminal sanction, as it has the potential to compromise the personal and family life of those who complain, or as in the present case, those who publish information about a public official, with the obvious and unmerited result of self-censorship for the affected and for other potential critics of the performance of a public official.”

6

Public interest speech is a specially protected speech under the American Convention on Human Rights.

7

Kimel Vs. Argentina, ¶ 93 “The opinions expressed by Mr. Kimel can neither be deemed to be true nor false. As such, an opinion cannot be subjected to sanctions, even more so where it is a value judgment on the actions of a public official in the performance of his duties. In principle, truthfulness or falseness may only be established in respect of facts. Hence, the evidence regarding value judgments may not be examined according to truthfulness requirements.”

8

See Declaration of Principles on Freedom of Expression. Principle 10. “[…] In addition, in these cases [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], it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.” Also, se Kimel Vs. Argentina ¶ 78 and Tristan Donoso Vs. Panama ¶ 120.

9

It is a consequence of the standard of actual malice. See Kimel Vs. Argentina ¶ 78 and Tristan Donoso Vs. Panama ¶ 120.

10

This standard has only been affirmed by the Inter-American Commission on Human Rights. For example the Declaration of Principles on Freedom of Expression. Principle 10. “[…] 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.” On the other side, the Inter-American Court on Human Rights in Tristan Donoso Vs. Panamá. ¶ 118. “The Court has pointed out that public officials, in as much the same manner as any other individual, enjoy the protection of the provisions of Article 11 of the Convention, which enshrines the right to honor. Moreover, Article 13(2)(a) of the Convention sets forth that the “reputations of others” may be grounds to impose subsequent liability for such an exercise of freedom of expression as attains them. Likewise, the incrimination instrument is adequate since it is aimed at safeguarding – through the penalties established – the interest that it is meant to protect; i.e. it could be suitable to contribute to attaining such end.” See also Kimel Vs. Argentina ¶ 71.