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7 Freedom of Expression

From: The American Convention on Human Rights: Essential Rights

Thomas M. Antkowiak, Alejandra Gonza

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 30 July 2021

Subject(s):
Access to information — Political expression — Civic expression — Hate speech — Media, freedom — Principle of legality

(p. 229) Freedom of Expression

Article 13: Freedom of Thought and Expression

  1. 1.  Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.

  2. 2.  The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

    1. a.  respect for the rights or reputations of others; or

    2. b.  the protection of national security, public order, or public health or morals.

  3. 3.  The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

  4. 4.  Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.

  5. 5.  Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

(p. 231) I.  Introduction

Reiterating the enduring views of many tribunals and scholars,1 the Inter-American Court has held

Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.2

The fundamental nature of this freedom has been recognized internationally by the American and Universal Declarations, the ICCPR, the European Convention, the Arab Charter, the African Charter, and the EU Charter.3 In the Inter-American System, the Inter-American Democratic Charter and the Inter-American Commission’s Declaration of Principles on Freedom of Expression (“Principles”) also affirm and elaborate upon the freedom of expression.4

There are many aspects to this freedom. It safeguards the individual’s right to hold an opinion and to share information and ideas. The American Convention and the ICCPR further specify that information and ideas “of all kinds” may be communicated.5 Further, the freedom comprises the right to “receive” this information—and, in the American Convention and other select instruments—to “seek” it.6 Consequently, the right is not only for those who wish to disseminate ideas and information; it also belongs to the potential audience, from the individual to society as a whole.7 Relying on this key term (p. 232) “seek,” the Inter-American Court became the first international human rights tribunal to establish the right of all individuals to access State-held information8—a right that was later recognized by other human rights authorities.9

The American Convention was designed to provide robust guarantees for the freedom of thought and expression. Among international treaties, it contains the only prohibition against prior censorship, and features an innovative provision on “indirect” restrictions.10 In Advisory Opinion No. 5, the Inter-American Tribunal’s first interpretation of Article 13, the Court recognized the Article’s provisions as more “generous” than other treaties and thus rejected attempts “to invoke restrictions contained in those other international instruments … to limit the exercise of the rights and freedoms that the [American Convention] recognizes.”11 Following the advisory opinion, the Court issued several decisions that condemned prior censorship and disproportionate sanctions on expression, protecting the Article 13 rights of individuals and society at large.12 These judgments led to legislative reforms, the reversal of criminal convictions, and the lifting of bans on films and books, among other successes.13

Although freedom of expression is often understood as a negative right, the Court has also required several positive State obligations in this area. Among other duties,14 States must ensure pluralism and diversity of viewpoints in the media.15 Second, State officials, given their influential roles, must “verify reasonably, though not necessarily in (p. 233) an exhaustive manner, the truthfulness of the facts supporting their opinions”;16 and their statements should not “amount to a form of interference with or pressure impairing the rights of those” who wish to participate in public debate and discourse.17 Third, States must “adopt reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully.”18 Fourth, States must implement “special measures of prevention and protection for journalists subject to special risk,” including the prompt investigation and punishment of rights violations against journalists.19

Until 2008, the Court conceived of the freedom of speech as a primary means to limit State power and foster democracy. Subsequently, the Tribunal modified its posture; it began to allow more limitations on expression and to require more responsibilities of speakers.20 In doing so, it has often cited to European Court judgments, which interpret a treaty more restrictive of the freedom of expression.21 For example, contrary to the Inter-American Commission’s position, the Court has held that criminal sanctions on expression are a legitimate means to protect honor and reputation, and that States have the obligation to establish such laws.22 The Court even accepted that protecting the honor of a State’s armed forces was a legitimate objective to criminally punish speech.23

(p. 234) In these cases involving criminal and civil sanctions, the Court balances the freedom of expression against the rights to honor, reputation, or privacy. An Article 13 violation often hinges on whether the restriction on speech is considered disproportionate. This ad hoc examination, in turn, depends upon whether the Court characterizes the expressions as opinions or facts, as well as whether they involve the “public interest,” criminal accusations, and “malice,” among other elements. However, the Court has not fully defined these vital terms nor used them in a consistent manner.

In response, we argue that criminal sanctions on expression, in order to protect honor and reputation, should always violate Article 13. Among other reasons, this is because criminal punishment fails the proportionality requirement of Article 13(2). As a result, the Court must change its approach and prohibit the use of criminal law in these cases. Second, pursuant to the American Convention, the Tribunal must develop clear definitions and rules regarding any sanctions on speech, with the goal to promote vigorous public debate. Otherwise, governments, domestic judges, and the Court itself will inevitably fail to honor Article 13’s generous protections. Of course, speakers and journalists also require predictable standards to avoid chilling effects on the freedom of expression. Yet the Court’s case law still permits, under uncertain circumstances, civil and even criminal sanctions for criticizing State institutions and public figures.

Also of concern, since 2006 the Court started finding violations of Article 13(1)’s general provision, without analyzing the Article’s other paragraphs.24 As stated elsewhere in this volume, the Tribunal cannot neglect its duty to rigorously analyze a case’s facts in light of the Convention’s express terms and limitations. Otherwise, its assessment becomes opaque; again, this can result in greater discretion for the Court and States in this critical area.

II.  Background

The delegates in San José largely maintained the Inter-American Commission’s preliminary proposal on freedom of expression.25 The discussion centered more on technical modifications, rather than substantive changes.26 The most significant revision concerned Article 13(5). The Commission’s original draft allowed for wider restrictions on speech, specifically on expressions that “constitute incitement to discrimination, hostility or violence,” such as the ICCPR’s Article 20(2).27 The U.S. representative opposed this formulation as overly restrictive on freedom of expression, and inconsistent with the First (p. 235) Amendment of the U.S. Constitution.28 Consequently, the Convention’s final version of Article 13(5) only limited expressions that amount to incitements to violence.29

As for the Article’s first paragraph, Colombia proposed the addition of a phrase similar to the ICCPR’s Article 19(1): “Everyone shall have the right to hold opinions without interference.”30 There is no record as to why the suggestion was not accepted. Before approving Article 13(2), the delegates considered the possibility of modifying or even eliminating the strong prohibition of prior censorship, as some States allowed it in their legislation.31

Select delegations showed concern that Article 13(3), the provision on “indirect” restrictions, offered inadequate or uncertain definitions.32 Although the Commission’s draft was approved in Committee I, a few modifications were made before the plenary vote.33 “The use of government and private monopolies” was replaced by “the abuse of government or private controls.”34 According to the U.S. representative, the new text was preferable because “a licensed operation such as a television station by its very nature has a monopoly on the use of a public resource, such as a broadcasting frequency.”35

III.  Scope of Protection

A.  Meaning of “Everyone”

Article 13 establishes that “everyone” holds the right to freedom of thought and expression; in this way, “there are no individuals or groups that, a priori, are excluded.”36 Although the rights of legal persons or entities are not protected by the American Convention,37 the Court has stated: “this does not mean that … an individual may not resort to the Inter-American system … to enforce his fundamental rights, even when they are encompassed in a legal figure or fiction.”38 On occasion, the Court has found (p. 236) journalists and others associated with media companies to have suffered Article 13 violations, owing to acts directed against those companies.39

When a legal entity, such as a TV station or newspaper, has been attacked, the Court requires that petitioners demonstrate a “negative, certain and substantial impact” upon a natural person, in order to assess a potential violation to that individual’s freedom of expression.40 The Tribunal has also considered the petitioner’s role in the media enterprise, looking for “real involvement in the business’s communicational mission.”41 Originally, for these complaints to be admissible, petitioners needed to file domestic remedies in their own names, and not only in the names of the affected businesses.42 Currently, however, the petitioner need only show that the appropriate domestic remedies pursued on behalf of the legal entity have a connection to the human rights violations alleged before the Inter-American System.43

The Court’s various requirements in this area can impede victims from holding States accountable for these troubling acts of intimidation and aggression. For example, in Perozo et al. v. Venezuela the Court concluded that the various damages caused to the office and property of the TV channel Globovision were directed only to the business itself, without a sufficient showing of how the damages affected the petitioners’ rights.44 In contrast, the Inter-American Commission’s Principles declare that “the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression.”45

(p. 237) B.  Protected Expression

Article 13 establishes that everyone has the “freedom to seek, receive, and impart information and ideas of all kinds.”46 According to the Inter-American Court and Commission, this provision safeguards

not only the dissemination of ideas and information that are received favorably or considered inoffensive or indifferent but also those that are offensive, shocking, unsettling, unpleasant or disturbing to the State or to any sector of the population, as this is required by the principles of pluralism and tolerance inherent in a democracy.47

In this way, the Inter-American Commission’s Special Rapporteur on Freedom of Expression (“Special Rapporteur”) has stated that there should be a general presumption that all speech is protected by Article 13.48

Article 13 prohibits all prior censorship, except that “public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”49 The Inter-American Court has emphasized that “in all other cases,” any censorship “implies the impairment of freedom of thought and expression.”50 Thus, Article 13’s coverage of expression is very broad, and problematic speech—even “propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence”51—can only be limited by subsequent sanctions.52

The Court’s Article 13 case law has not yet reached diverse forms of expression; it has mainly assessed information and speech concerning typical public affairs. To illustrate, its judgments have considered: journalism exposing a public official’s corruption,53 TV stations (p. 238) and newspapers critical of government administrations,54 a presidential candidate who published a column against his rival,55 retired military officers who denounced the armed forces through their interviews or books,56 a lawyer who referred to the illicit acts of a public official during a press conference,57 judges who expressed opposition to the Honduran coup d’état,58 and other political leaders and rights advocates who criticized the government.59

The Court, similar to the United States Supreme Court, holds that “it is logical and appropriate that statements concerning public officials” should be given “a certain latitude in the broad debate on matters of public interest that is essential for the functioning of a truly democratic system.”60 Although the honor and reputation of public officials should be respected, a higher “threshold of protection” must apply to such statements.61 This is only fair, according to the Inter-American Court, as these officials—public figures whose “activities … belong to the realm of public debate”—have “voluntarily” opened themselves to “a more intense public scrutiny.”62 Special protection even extends to statements about private persons and entities, as long as the expressions are relevant to the public interest.63 The Court, however, has been unable to arrive at a precise definition for “public interest” in this context, so the actual scope of protection is uncertain.64

(p. 239) In fact, this higher “threshold of protection” has appeared to make little practical difference in the Court’s recent decisions. Rather than according clear preferential status to statements concerning the public interest, since 2007 the Court has found that the right to honor and freedom of expression “deserve equal protection and must coexist harmoniously.”65 As discussed below, when the rights conflict the Tribunal engages in an ad hoc balancing test.66

Further, when expression conveys an essential aspect of “identity and dignity,” the Court and the Special Rapporteur have also granted it “a special level of protection.”67 In the key judgment López Álvarez v. Honduras, the Court found an Article 13 violation when a detained individual was prohibited from speaking his native language in prison.68 It affirmed that Article 13 includes “the right of people to use the language of their choice when expressing their thoughts.”69 More recently, the Special Rapporteur declared that freedom of expression “encompasses the right to express one’s own sexual orientation and gender identity.”70 In Atala Riffo v. Chile, the Court agreed that “sexual orientation is an essential component of a person’s identity”; however, it conceptualized the “conduct associated with the expression of homosexuality” under the right to equality, rather than under Article 13.71

C.  Safeguards for Journalists

In the Americas, journalists are frequently the target of attacks, intimidation, and persecution. The Inter-American Commission has evaluated many such situations,72 (p. 240) which are now increasingly arriving at the Inter-American Court.73 Both institutions have expressed alarm about this crisis, and in some cases have issued urgent measures to protect journalists.74

Without attempting the difficult task of defining “journalists,” the Court has called it “essential” that they “enjoy the necessary protection and independence to exercise their functions comprehensively.”75 In this regard, “States have the obligation to adopt special measures of prevention and protection for journalists subject to special risk owing to the exercise of their profession.”76 The Court also has emphasized “the importance of effectively and diligently investigating” rights violations against journalists, whether committed by State agents or private actors.77 While these abuses remain unpunished, journalists will “reasonably fear that this type of human rights violation might be repeated, and this could lead to self-censorship of their work.”78 In addition, the Tribunal has urged public officials to condemn attacks on the press.79

As for other impediments to the free practice of journalism, the Court has ruled that mandatory licensing violates Article 13(2).80 Licensing or requiring university degrees for journalists would breach “not only the right of each individual to seek and impart information and ideas through any means of his choice, but also the right of the public at large (p. 241) to receive information without any interference.”81 The Commission’s Principles share this view, and also declare that ethical rules governing “journalistic activities … should in no case be imposed by the State.”82

However, with Kimel v. Argentina, the Court began to limit the practice of journalism.83 In consideration of “the great responsibility” belonging to “professionals in the field of social communications,” Kimel held:

journalists have the duty to verify reasonably, though not necessarily in an exhaustive manner, the truthfulness of the facts supporting their opinion. Therefore, it is valid to claim equity and diligence in the search for information and the verification of the sources… . Therefore, journalists have the duty to keep a critical distance from sources and match the information against other relevant data.84

In developing these duties, the Court has been influenced by international authorities such as the European Court, which preside over regimes that are more restrictive of freedom of expression. In contrast, the Principles reject requirements for “truthfulness, timeliness or impartiality,”85 because “the right to information encompasses all information, including that which we might term ‘erroneous,’ ‘untimely,’ or ‘incomplete.’ ”86 In the Court’s subsequent judgment Mémoli v. Argentina, it even upheld criminal sanctions against journalists, when the right to honor was at issue.87

D.  Right of Access to State-Held Information

In Claude Reyes v. Chile, a landmark decision from 2006, the Court interpreted Article 13 to include the right of all persons to access State-held information, subject to the usual limitations of Article 13(2).88 In Claude Reyes, the petitioners had requested information (p. 242) from a State institution about a controversial development project, but the official response addressed only part of the request.89

Recognizing that Article 13 establishes the right to “to seek” and “receive … information and ideas of all kinds,” the Court held that the American Convention

protects the right of the individual to receive [State-held] information and the positive obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the Convention, the State is allowed to restrict access to the information in a specific case.90

Further, the individual who requests information need not “prove direct interest or personal involvement in order to obtain it.”91

In this way, Claude Reyes stressed that “State authorities are governed by the principle of maximum disclosure, which establishes the presumption that all information is accessible, subject to a limited system of exceptions.”92 The Court recognized the dual nature of this right of access: once the individual gains access to information, he or she may circulate it widely, so that society may assess and respond to the information. In addition, when access to such information is hindered, the State must ensure that “there is a simple, prompt and effective recourse that permits determining whether there has been a violation of the right of the person requesting information,” and, if applicable, that the State institution disclose the information at issue.93 Subsequently, the Court has linked Article 13’s right to access information to a victim’s rights to “truth” and to “justice,” finding additional violations to Articles 8 and 25 of the Convention.94

(p. 243) IV.  Limitations to Article 13

A.  Introduction

Freedom of expression is not an absolute right. Article 13(2) permits its restriction in the form of “subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure” the rights of others or the “protection of national security, public order, or public health or morals.”95 Initially, the Court established that the permissible limitations are only those strictly enumerated in Article 13, terms that themselves should be interpreted restrictively.96 Because Article 13 contains its own limitations, the American Convention’s general provision on limitations, found in Article 32, does not apply.97 The Court has stressed that restrictions to the freedom of expression found in other international treaties should never be applied to the American Convention.98

Since its first analysis of Article 13(2), the Court has set out two categories for impermissible interferences with the freedom of expression.99 The first consists in its “extreme violation”: when the right is denied through various forms of prior censorship.100 The second category involves the range of other restrictions forbidden by the Convention. These include cases when States unjustifiably impose civil or criminal liability, as well as the “indirect” restrictions of Article 13(3).101

Yet the Court’s strict approach to limitations has relaxed in recent years, as discussed below. Since 2006, the Court began to find violations of Article 13(1)’s general provision, without analyzing the Article’s other paragraphs.102 In this way, it has found violations of Article 13(1) in cases of political assassination,103 persecution of journalists,104 and a prison’s ban of the Garifuna language, among others.105 The Court’s change in methodology is significant, because it allows both the Tribunal and States greater discretion in (p. 244) this critical area. This discretion and lack of rigor can destabilize the Court’s case law and diminish Article 13 protections.

B.  Prior Censorship

1.  Overview

As noted, the American Convention stands as the only international human rights treaty that prohibits prior censorship, rendering the Convention more protective than other instruments.106 As a result, the Commission’s Principles demand that States forbid censorship by law.107 Yet the Convention itself and subsequent interpretations have not defined censorship very precisely or detailed which exact controls are prohibited. The Court takes a case-by-case approach, explaining censorship broadly as “the seizing or barring of publications and, generally, any procedure that subjects the expression or dissemination of information to governmental control.”108 It has recognized that any branch of government—executive, judicial, or legislative—is capable of censorship.109

The consensus is that Article 13 bans practically all forms of prior censorship.110 Still, Article 13(4) articulates one exception: “public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.”111 The Inter-American Court and Commission have shown reticence to develop this limited exception, and the Tribunal has emphasized that “in all other cases,” any censorship “implies the impairment of freedom of thought and expression.”112 Thus, as mentioned previously, “propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence” can only be limited by subsequent imposition of liability.113

(p. 245) The Inter-American jurisprudence has examined censorship by domestic law and by various State institutions, including the armed forces. To date the Court’s judgments have evaluated relatively simple censorship cases, which have not fully assessed imminent danger to life or national security. Notably, it has chosen to consider some potential cases of censorship as “indirect” restrictions of Article 13(3)—such as when Venezuela refused to renew a television station’s license, due to its critical government views, forcing its closure.114 Further, in cases when journalists and opposition politicians were killed or persecuted, the Court found violations to Article 13(1), without considering these acts to constitute censorship.115 The Court, then, avoids an expansive concept of censorship, likely because the consequences are severe: censorship almost always violates Article 13, and States cannot escape responsibility by arguing a “legitimate” objective or the presence of mitigating circumstances.116

2.  Prohibitions against Offensive Content

The Court and Commission have heard cases where films and books were banned in consideration of individuals’ privacy and the reputation of religious and State institutions. The Court’s leading censorship judgment, Olmedo Bustos et al. v. Chile, involved the State’s prohibition on the film The Last Temptation of Christ.117 The Chilean Supreme Court approved the ban, reasoning that censorship was permitted in the State’s Constitution, and that the film “deforms the figure of Jesus Christ, offends his honor and in consequence the honor of … members of the Catholic Church, Christians in general.”118

With little analysis, the Inter-American Court found an Article 13(2) violation for prior censorship; the victims were identified members of the Chilean public who claimed (p. 246) their right to watch the film.119 Notably, Olmedo Bustos ordered constitutional reform, but failed to evaluate the film’s content or explore topics of artistic expression and potential blasphemy. It also passed on the opportunity to interpret the Convention’s exception to censorship in Article 13(4). Chile eventually reformed its Constitution and domestic legislation on censorship.120

Another judgment against Chile, Palamara Iribarne, concerned a retired Navy officer’s book titled Ethics and Intelligence Services.121 The military had prohibited its publication, arguing that it would endanger national security. The Court found that various measures to suppress the book resulted in prior censorship, in violation of Humberto Palamara Iribarne’s “right to disseminate information and ideas.”122 These measures included the ban on publishing and distributing the book, as well as other aggressive State actions, such as attempts to delete electronic files and orders to prohibit Palamara Iribarne from “making negative comments” about the Navy or the proceedings initiated against him.123

On the other hand, the Court noted that “employees or officers of an institution have the duty to maintain the confidentiality of certain information to which they have access in the course of their duties.”124 Further, “under certain circumstances, a breach of the duty of confidentiality may result in administrative, tort or disciplinary liability.”125 Yet the Court found that Palamara Iribarne used publicly-available information to write his book; as a result, it decided that the duty of confidentiality did not apply, and it was unnecessary to examine the duty’s parameters. It remains unclear how the Court will resolve a national security case with more complex characteristics.

For its part, the Inter-American Commission also has heard emblematic censorship cases against Chile.126 A year after Palamara, the Commission decided Matus Acuña et al. v. Chile.127 The journalist Alejandra Matus Acuña authored a book titled The Black Book of Chilean Justice; subsequently, a judge named in the book filed a complaint (p. 247) against Matus Acuña for having committed a crime “against the security of the State.”128 A Chilean court then prohibited the book’s further publication and required “confiscation of all copies of the book.”129 The Commission found prior censorship and that the national security law allowing censorship violated Article 13.

C.  Subsequent Imposition of Liability

1.  Overview and General Requirements

Although censorship is generally prohibited, Article 13(2) allows for “subsequent imposition of liability.”130 The Court has held that sanctions on expression are only permitted when States comply with the provision’s requirements, explained as follows:

(i) [the sanction] must be expressly established by law, in both the formal and substantial sense; (ii) it must respond to an objective permitted by [Article 13(2) of] the American Convention … and (iii) it must be necessary in a democratic society (and to this end must comply with the requirements of suitability, necessity and proportionality).131

In interpreting both the limitations of Article 13 and other Convention Articles, the Court employs terms that are often redundant or ambiguous. To better understand these provisions, a review of the relevant case law is necessary.

As for the first requirement, the sanctions must be previously and expressly established by law;132 such laws must be “passed by the legislature and promulgated by the Executive Branch.”133 The Court does not always apply the legality requirement;134 when it does, even somewhat ambiguous laws may pass its review.135 In fact, the judgment Fontevecchia (p. 248) and D’Amico v. Argentina, which concerned civil sanctions for speech, revealed quite flexible criteria.136 The Court stated, “while the certainty of the law is highly desirable, it may bring with it excessive rigidity.”137 Citing the European Court, Fontevecchia noted “many laws are formulated in terms, that to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”138 Later, the Inter-American Court even applied a flexible standard for legality in a case involving criminal sanctions, Mémoli v. Argentina.139 In contrast, the Special Rapporteur has definitively rejected vague legislation that punishes expression.140

The second requirement for sanctions on expression is that the restriction must pursue “an objective permitted by the American Convention,” called “a compelling governmental interest” by the Court.141 As stated above, Article 13 establishes as permissible purposes the “respect for the rights or reputations of others” or “the protection of national security, public order, or public health or morals.”142 To date, the Court has interpreted the “rights of others” exception in contentious cases, discussed below, concerning the rights to honor, reputation, and privacy. As for “public order,” it has explained that the concept refers to “the conditions that assure the normal and harmonious functioning of institutions based on a coherent system of values and principles.”143 The Court declined opportunities to consider the national security exception in both Palamara and Usón Ramírez.144

In Usón Ramírez, the Court surprisingly accepted that protecting the honor of the State’s armed forces was a legitimate objective to restrict expression.145 In arriving at this conclusion—which had been opposed by the Inter-American Commission—the judgment reasoned that domestic law protected the military’s honor and that, “in general, such right is set forth in the American Convention regarding natural persons.”146 Further, (p. 249) the Tribunal cited European Court precedents for the proposition that “protection of the right to the reputation of companies, not only of individuals, may be a legitimate purpose to restrict the right to the freedom of expression.”147

Third, the sanction must be “necessary in a democratic society.”148 According to the Court, this requirement prompts a proportionality analysis: the “restriction must be proportionate to the underlying interest and in direct furtherance of such legitimate purpose, interfering as little as possible with the effective exercise of the right to freedom of thought and expression.”149 In the subsequent liability cases, most of the breaches to Article 13 are owed to a violation of this requirement: the Court considered the sanction in question to be disproportionate.

2.  Subsequent Criminal Liability

a.  Introduction

In the view of many experts, criminal sanctions on expression chill the freedom of speech, weaken democracy, and “protect power and privilege.”150 Yet some States of the Americas have not rejected the use of criminal law to limit expression, often with the objective to protect personal honor and reputation.151 The Court and the Commission sharply disagree on this subject.

In 1994, the Commission approved an important settlement regarding the case of the Argentine journalist Horacio Verbitsky,152 and issued a key thematic report.153 In these documents, the Commission condemned “laws of contempt” (leyes de desacato) that “criminalize expression which offends, insults, or threatens a public functionary in the performance of his or her official duties,” when there is no identifiable danger of imminent violence.154 Currently, both the Commission and the Special Rapporteur broadly denounce the criminalization of (p. 250) expression, and urge that States eliminate crimes against honor and reputation. As stated by the Special Rapporteur,

The use of the corrective means of the State to … discourage the open and vigorous deliberation of all matters of public relevance is incompatible with the guiding principles of democratic regimes and, in particular, with the right to freedom of expression enshrined in Article 13 of the American Convention.155

The Commission and the Special Rapporteur also object to disproportionate civil sanctions on expression.156 In this regard, the Principles have specified that, for civil sanctions in public interest cases to be permissible, it must be proven that the journalist “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.”157

In contrast, the Court holds that criminal sanctions on speech are a legitimate means to protect honor and reputation, and has even asserted that States have the obligation to establish such laws.158 The Court has decided seven cases of criminal sanctions concerning six different States.159 In six judgments, it found the specific criminal punishment to be disproportionate, violating Article 13(2); in three of those, the Tribunal ordered legislative reform.160 To date, it has only heard one case involving civil sanctions.161

The Commission’s perseverance in this area, coupled with earlier Court decisions, has led to legislative reform in the region. However, State officials and others continue to (p. 251) use criminal and civil actions to impede critical expression and robust public debate.162 According to the requirements reviewed above, it is reasonable to conclude that these criminal sanctions are inconsistent with Article 13.

In particular, Article 13(2)(a) lists “respect for the rights or reputations of others” as a permissible purpose to restrict speech. As a result, we will presume that protecting honor, reputation, and privacy consist in “overriding public interests” or “compelling objectives” to limit expression—although the Court has not clearly defined these terms. Nevertheless, the specific restriction used by the State still must “interfere as little as possible with the effective exercise of the right to freedom of thought and expression.”163 The “least restrictive” means to protect honor and reputation is certainly not criminal law; the Court itself has reiterated that criminal punishment is the most severe legal response available to States.164 Even civil sanctions can be disproportionate and seriously inhibit expression.165 In this way, we argue that criminal sanctions in these cases should always fail the proportionality test of Article 13(2)—and possibly even disregard the legality and “compelling objective” requirements as well.166 Consequently, to safeguard the critical rights of Article 13, as well as democracy in the Americas, the Court must change its approach and prohibit the use of criminal law to protect honor and reputation.

(p. 252) b.  The Honor and Reputation of the Armed Forces

In the 2005 judgment Palamara Iribarne, the Court denounced “laws of contempt” and asserted that expressions in the public interest, such as criticism of State institutions like the Navy, should enjoy enhanced protection.167 In this way, “all persons are allowed to exercise democratic control over all State institutions and officials,” without fearing retaliation for their disapproving views.168 Nevertheless, four years later, in Usón Ramírez, the Court essentially reversed aspects of Palamara.169 Francisco Usón Ramírez, a retired military officer, criticized Venezuela’s armed forces on television. In response, a military court convicted him for the crime of “slander against the National Armed Forces”; he was imprisoned for over three years.170

As noted above, the Court controversially accepted that protecting the honor of the State’s armed forces was a legitimate objective to restrict expression. It made this decision taking into account that Venezuelan law recognized the military’s right to honor—and despite holding that the military is not a natural person, and thus is not protected by the Convention.171 Usón Ramírez had not been prosecuted for compromising national security, and thus the Court decided that the Article 13 national security objective was not at issue in this case.

The judgment accepted the criminal sanctions on expression as legitimate in principle. However, assessing the specific criminal law at issue, the Court found that the crime’s definition was “too vague and ambiguous,” breaching Article 13 and other Convention provisions.172 It also considered that Usón Ramírez had expressed an opinion about a subject of public interest—namely, “military institutions and their members”— and “lacked any specific intention to insult, offend, or disparage.”173 As a result, it concluded that the criminal sanctions were disproportionate, violating Article 13 again.

In sum, despite finding violations to Article 13, the judgment ultimately condoned a military’s use of criminal law to silence its critics. Under this precedent, the Court could find a speaker’s “intention to offend” in a future case and uphold the sanction. Usón Ramírez disregards the vital role of public scrutiny over State institutions and political leaders. It also neglects the vulnerability of individuals before these powerful institutions and figures. The (p. 253) case represents one of the various ways that oppressive regimes have controlled speech in the region.174

c.  The Honor and Reputation of Public Officials

Herrera Ulloa v. Costa Rica was the first case where the Commission asked the Court to strike down laws criminalizing defamatory statements against public officials.175 Mauricio Herrera Ulloa, a newspaper journalist, published articles that “partially reproduced news reports” about the “alleged illicit activities” of a Costa Rican diplomatic representative.176 Subsequently, in Ricardo Canese v. Paraguay, the Court assessed the criminal conviction of a presidential candidate for publicly stating that a rival candidate was involved in corrupt business activities.177 Both judgments recognized the expressions as protected speech in the public interest, denounced the criminal prosecutions, and found violations to Article 13.178

In Kimel v. Argentina, however, the Court’s case law takes a turn.179 Eduardo Kimel, a journalist and historian, authored a book that found fault with criminal investigations into a notorious murder of five Catholic priests. A judge mentioned in the book brought a criminal action for “defamation,” and Kimel was convicted.180 For the first time, the Court held that “criminal proceedings are suitable” to protect a person’s honor and reputation, even when that person is a public official.181 The judgment, citing to the European Court,182 explained that “by threatening to impose sanctions, [criminal proceedings] serve the purpose of preserving the legal right whose protection is sought.”183 The Inter-American Court even declared that it does not consider criminal sanctions “regarding the right to … give one’s opinion” to violate the Convention, despite holding in the same (p. 254) judgment that “an opinion cannot be subjected to sanctions, even more so where it is a value judgment on the actions of a public official.”184

The Court achieved consensus in Kimel by placing conditions on the use of criminal sanctions, stating that they 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.185

In his separate opinion, Judge García Ramírez wrote that these conditions are not sufficient for protecting the freedom of expression, and recommended that the Court rule out criminal law as a means to protect honor and reputation.186 Eventually, the Kimel Court found a violation to Article 13 due to the law’s lack of precision, which had been already expressly accepted by Argentina.187 Finally, reasoning that Kimel’s opinion “had no bearing on the … judge’s personal life, nor did it impute an illegal conduct,” it held the criminal sanction to be disproportionate.188

In 2013, a sharply-divided Court decided Mémoli v. Argentina, its first judgment to uphold criminal sanctions against a journalist for “defamation.”189 The controversial decision appeared to ignore Kimel’s conditions requiring only exceptional use of criminal punishment.190 Instead, the Court stated that it was “sufficiently foreseeable” that criminal accusations of “fraud” and “deceit,” among others, “could result in a judicial action for the alleged harm to the honor or reputation of the complainants”—three members of a private association.191

Mémoli deferred to the decisions of the domestic courts, which “examined the statements made by [Carlos and Pablo Mémoli] and their impact on the honor and reputation” (p. 255) of the three individuals.192 The Inter-American Court decided, “this examination constituted a reasonable and sufficient weighing up of the two rights in conflict, which justified the subsequent imposition of liability.”193 Next, the Court considered the proportionality of the sanctions, suspended sentences of one and five months of prison, respectively. It concluded that the punishments “were not excessive or manifestly disproportionate in a way that affected their right to freedom of expression.”194 Surprisingly, the Tribunal disregarded the fact that the criminal law applied in Mémoli was the same law that the Kimel Court had found incompatible with the American Convention.195

A central dispute was whether the statements concerned the public interest, which would require a higher standard of protection. The Commission, petitioners, and the three-judge dissent all argued that the corrupt “administration of public property,” such as that alleged in this case, impacted the public interest;196 other factors also indicated that the statements were in the community’s interest.197 However, the Court’s majority, although acknowledging that “certain information concerning private individuals or organizations may be classified as information of public interest,” observed that “in this case two domestic courts analyzed and rejected this argument.”198 It decided not to “annul the decision of the domestic courts in this regard” and refused to find a violation of Article 13.199

Because the Court has not prohibited criminal sanctions in these cases, it must engage in a balancing test each time. For the Tribunal, the Article 13 violation often hinges on whether the restriction is considered disproportionate. This examination, in turn, depends upon whether the Court—and increasingly domestic courts—characterize the expressions as opinions or facts, as well as whether they involve the public interest, criminal accusations, and “malice,” among other concepts. However, unlike other tribunals, the Court has not fully defined these essential terms in its case law nor used them in a consistent manner. By applying opaque standards in this way, its method is discretional and unpredictable. In judgments such as Mémoli and Usón Ramírez, this approach permitted the Court to defer to States on certain key determinations—such as legitimate objectives to restrict Article 13 and the meaning of “public interest”—leading to conflict with the American Convention and its own jurisprudence.

(p. 256) 3.  Subsequent Civil Liability

To date, the Court has only heard one case concerning civil sanctions on expression. In Fontevecchia and D’Amico v. Argentina, journalists published articles and photography about President Carlos Menem’s son from an extramarital affair.200 Menem sued for the invasion of his privacy; the resulting civil judgment ordered various fines and penalties. Fontevecchia recognized that civil sanctions can readily inhibit freedom of expression and “compromise the personal and family life” of those who publish information.201 The Court outlined criteria similar to Kimel: civil penalties “should be carefully analyzed, considering the conduct displayed by the person making the statements, the characteristics of the damage allegedly caused, and other information that demonstrates the need to resort to the civil forum.”202

The Tribunal recalled that a different threshold of protection applies to public officials. It also expressly found that the published articles related to the public interest, as they concerned “the integrity of political leaders,” the president’s gifts of “large sums of money” to his son and his son’s mother, and the “possible existence of … interference in a judicial investigation.”203 As a result, and because there was “no unreasonable or arbitrary interference in the private life of Mr. Menem,” Article 13 was violated in detriment of the petitioner journalists.204 Despite the vagueness of Argentina’s legislation, the Court did not rule it incompatible with the Convention. Instead, it found fault with domestic tribunals, stating that they must better weigh the public interest and different threshold of protection in this context. Ultimately, the Inter-American Court revoked the civil sanctions, but unaccountably failed to order moral damages for the victims.

Much remains for the Court to address in the area of civil sanctions on expression. Fontevecchia, for example, eluded an assessment of the proportionality of the rather severe fine imposed; the Inter-American Commission has also avoided this key issue.205 Moving forward, the Court should adopt standards to foster vigorous public debate similar to the Commission’s Principles and U.S. Supreme Court case law. Specifically, as regards the alleged defamation of public figures, plaintiffs should shoulder a substantial burden: prove by convincing evidence that the defendant knew the defamatory statement (p. 257) was false or acted with reckless disregard of the truth.206 In fact, the Court should encourage alternative mechanisms to protect honor and reputation. Procedures to obtain retractions, corrections, replies, or apologies could replace costly and protracted litigation, benefiting both parties to a dispute.207

D.  “Indirect” Restrictions

The American Convention’s Article 13(3) establishes that the “right of expression may not be restricted by indirect methods or means.”208 The Court has explained that this broad provision targets State and private restrictions,209 including abusive controls over media and “any other means tending to impede the communication and circulation of ideas and opinions.”210 In this way, these cases can prove complex for the Court and Commission, as Article 13(3) encompasses public and private acts committed against both legal persons, such as media companies, and natural persons.

Currently, there are two groups of “indirect” restrictions cases in the Court’s jurisprudence. In the first group, such restrictions are found in cases that also involve severe violations to Article 13(2). With little additional analysis or explanation, the Court found the following situations to constitute indirect restrictions: an international travel ban,211 dismissal from State employment,212 criminal and administrative proceedings,213 and interferences with the right to intellectual property, among others.214

The second group of cases concerns the State’s abusive control of television stations. In Ivcher Bronstein v. Peru, a director of a television channel had approved of numerous reports critical of the Fujimori regime, denouncing torture, killings, and corruption.215 (p. 258) Fujimori’s government issued an order that allowed for the revocation of naturalized Peruvians’ citizenship. Baruch Ivcher Bronstein’s citizenship was soon revoked, preventing him from continuing his work at the channel. The Court found this State action to constitute an “indirect means of restricting his freedom of expression, as well as that of the journalists” who worked with him.216

In Granier v. Venezuela, the Venezuelan station RCTV, broadcasting since 1953, had to close because the State refused to renew its license.217 The Court noted a general “deterioration in the protection of the freedom of expression” in Venezuela, and observed that there were many clear, public warnings by President Hugo Chávez and other State officials that television licenses—including that of RCTV—would not be renewed if they continued to criticize the government.218 The judgment then stated that such licensing procedures must be “clear and precise” and respect “general guarantees of due process,” such as independence and impartiality.219

Venezuela responded that its objective in closing RCTV was to protect a “pluralism” of viewpoints.220 Given the numerous public statements on record undermining this stated purpose, among other evidence, the Court found that the State abused its power and had applied indirect restrictions in breach of Article 13(3).221 The judgment emphasized that the victims in the case were not only the individuals associated with RCTV, but also included Venezuelan society as a whole, as that society was deprived of access to the station’s point of view. Consequently, as in Ivcher Bronstein v. Peru, the Court ordered the State to return the victims to broadcasting.222

Granier fails to assess the State restrictions on Article 13 in a complete, methodical fashion. It remains ambiguous how the Court defines “abuses of power” or “indirect” restrictions to the freedom of expression.223 Clearly, Venezuela’s flagrant actions violated Article 13; however, the Court does not indicate why they did not rise to the level of censorship. Further, the Tribunal unaccountably held that the many public declarations by President Chávez and other officials “could not autonomously configure facts constitutive of a violation of the American Convention.”224 Yet these statements, orders, and warnings determined RCTV’s fate and restricted freedom of expression; Chávez often (p. 259) made governmental decisions in public fashion, during television programs. The Court should have considered these statements as State acts; then, it should have applied a careful analysis to those acts—assessing their legality, objective, and proportionality.

E.  Cases of Persecution Leading to Generic Violations of Article 13(1)

Recently, the Court has heard several cases involving persecution and violence against individuals, often journalists or political leaders. These judgments have held that freedom of expression may be violated by “de facto conditions that put, directly or indirectly, in a situation of risk or greater vulnerability those who exercise or attempt to exercise such freedom, by actions or omissions of state agents or private individuals.”225 In these cases, non-State actors obstructed the work of journalists at television stations;226 a cameraman was attacked by soldiers while filming a protest;227 a human rights advocate endured threats, harassment, and a criminal suit for defamation;228 and a political leader was assassinated.229 The Court has found these flagrant acts to breach Article 13(1), without considering the Article’s other paragraphs.

López Lone et al. v. Honduras concerned a different kind of persecution.230 Four judges had opposed the coup against President Zelaya in Honduras. They had participated in public protests, initiated lawsuits, or otherwise spoken out against the coup. As a result, all judges faced disciplinary proceedings, and three were dismissed. The Court found that the judges’ acts, including the initiation of criminal and constitutional legal actions, constituted expression protected by Article 13.231 It concluded that the disciplinary proceedings and dismissals violated Article 13(1), in addition to other Articles of the Convention.232

It is problematic that these various cases of persecution have led only to generic violations of Article 13(1). The Special Rapporteur has denounced extrajudicial killings and (p. 260) attacks as the “most extreme form of censorship.”233 If not censorship in breach of Article 13(2), some of the circumstances could have been conceptualized as the “indirect” restrictions of Article 13(3). The cases involving criminal and disciplinary proceedings should have been analyzed pursuant to Article 13(2)’s subsequent liability provision. In sum, these situations doubtlessly violated the freedom of expression. Nevertheless, the Court cannot neglect its duty to closely analyze the facts in light of the Convention’s terms. Otherwise, its assessment becomes concealed; as discussed above, this could result in greater discretion for the Court and for States.

F.  Incitements to Violence: Article 13(5)

The American Convention contains narrow limitations on propaganda and hate speech. The Convention only specifies “propaganda for war” and “incitements to lawless violence” or to “similar action,” whereas the ICCPR and the European Convention permit wider restrictions on expression.234 To date, neither the Inter-American Court nor the Commission has offered detailed jurisprudence on Article 13(5).235 Still, the Special Rapporteur has recently studied the subject with respect to lesbian, gay, bisexual, trans and intersex (LGBTI) persons.236 The Special Rapporteur explained that sanctions under Article 13(5) require a “high threshold”:

Such sanctions must be backed by truthful, objective, and strong proof that the person was not simply issuing an opinion (even if that opinion was unfair or (p. 261) disturbing), but that the person had: (a) the clear intention of promoting lawless violence or any other similar action against LGBTI persons; and (b) the capacity to achieve this objective and create an actual risk of harm to LGBTI persons.237

The Special Rapporteur has also stressed that “in order to effectively combat hate speech, a comprehensive and sustained approach that goes beyond legal measures and includes preventive and educational mechanisms should be adopted.”238

In the Venezuelan judgments Perozo et al. and Ríos et al., the Court declined the opportunity to interpret Article 13(5) when it considered incendiary public statements made by various political leaders.239 These statements identified certain media companies and their staff as “enemies of the Venezuelan people” who had plotted subversive actions, among other accusations.240 The petitioners argued that these statements provoked the subsequent attacks against RCTV and Globovisión. Ultimately, the Court, having found the attackers to be non-State actors, concluded that Venezuela was responsible “for non-compliance with the obligation contained in Article 1(1) of the Convention to ensure the right to freely seek, receive and impart information and the right to humane treatment.”241(p. 262)

Footnotes:

1  See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) (“in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy”); Handyside v. the United Kingdom, Eur. Ct. H.R., App. No. 5493/72, para. 49 (Dec. 7, 1976) (“Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man”); John Stuart Mill, On Liberty and Considerations on Representative Government 14–15 (1859) (stating that freedom of expression is necessary to uncover the truth).

2  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 70 (Nov. 13, 1985).

3  American Declaration, art. IV; Universal Declaration, art. 19; ICCPR, art. 19; European Convention, art. 10; Arab Charter, art. 32; African Charter, art. 9; EU Charter, art. 11.

4  Inter-American Democratic Charter, adopted in 2001; Declaration of Principles on Freedom of Expression, adopted in 2000.

5  American Convention, art. 13; ICCPR, art. 19.

6  American Convention, art. 13; Universal Declaration, art. 19; ICCPR, art. 19; Arab Charter, art. 32.

7  E.g., Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, para. 119 (Aug. 22, 2013); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 140 (Nov. 13, 1985).

8  Claude Reyes et al. v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151, para. 77 (Sept. 19, 2006).

9  See Alejandra Gonza, El derecho a la información en el artículo 13 de la Convención Americana, 99–100, Biblioteca Jurídica Virtual de la UNAM, available at http://biblio.juridicas.unam.mx/libros/5/2465/8.pdf (last visited Nov. 25, 2016); Nicola Wenzel, Freedom of Opinion and Expression, in Max Planck Encyclopedia of Public International Law (2014), at para. 20.

10  See Sergio García Ramírez, Alejandra Gonza & Erendira Ramos Vásquez, Freedom of Thought and Expression in the Case Law of the Inter-American Court of Human Rights 48 (4th ed. 2016).

11  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 50 (Nov. 13, 1985).

12  E.g., Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135 (Nov. 22, 2005); “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73 (Feb. 5, 2001).

13  Olmedo Bustos et al. v. Chile, although one of the best-known cases, counts as only one of several success stories. Id. See also this book’s chapter on reparations.

14  For additional State obligations, see, e.g., Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 375 (Jan. 28, 2009) (“with respect to the accreditations or authorizations necessary for the media to participate in official events, which imply a possible restriction to [Article 13], it is essential to prove that their application is legal and legitimate and necessary and proportionate to the goal in question in a democratic society.”).

15  E.g., Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293, paras. 143–145 (June 22, 2015); Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177, para. 57 (May 2, 2008).

16  E.g., Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 151 (Jan. 28, 2009) (noting “this verification should be performed subject to a higher standard than that used by private parties … and with a view to keeping citizens from receiving a distorted version of the facts.”); Ríos et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 194 (Jan. 28, 2009) (similar).

17  Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 151 (Jan. 28, 2009) (observing also that “this duty of special care is particularly emphasized in those situations of greater social conflict, disorderly conducts or social and political bias, precisely because of the risks entailed for certain people or groups at a given time.”). The Inter-American Commission has stated that public officials have additional duties “to ensure that their statements do not interfere with the independence and autonomy of judicial authorities”; to keep confidential “certain sensitive information in the possession of the State, within the framework established by Article 13.2 of the Convention”; and to “denounce human rights violations of which they are aware.” Gallo et al. v. Argentina, Case 12.632, Inter-Am. Comm’n H.R., Report No. 43/15, OEA/Ser.L/V/II.155, Doc. 23, para. 226 (2015).

18  Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 166 (Jan. 28, 2009).

19  Vélez Restrepo and Family v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 248, para. 194 (Sept. 3, 2012).

20  Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177, para. 71 (May 2, 2008).

21  The European Convention’s Article 10 establishes, in part: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

22  Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, paras. 125–126 (Aug. 22, 2013).

23  Usón Ramírez v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 207, para. 66 (Nov. 20, 2009).

24  López Álvarez v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 141, para. 174 (Feb. 1, 2006).

25  Draft Inter-American Convention on Protection of Human Rights, Doc. 5 (English), art. 12, Sept. 22, 1969.

26  Report of Committee I “Protection.” Rapporteur Juan Isaac Lovato, Doc. 60 (Revised) Nov. 19, 1969, p. 298.

27  Draft Inter-American Convention on Protection of Human Rights, Doc. 5 (English), art. 12(5)(b), Sept. 22, 1969.

28  P. 26, Report of the United States Delegation to the Inter-American Conference on Protection of Human Rights (1969).

29  P. 444, Minutes of the Second Plenary Session, Doc. 86, Nov. 22, 1969.

30  P. 213, Minutes of the 8th Session of Committee I, Doc. 48, Nov. 15, 1969.

31  See id.

32  See, e.g., p. 40, Observations of the Government of Chile to the Draft Convention, Doc. 7, Sept. 26, 1969; p. 46, Observations of the Government of Argentina to the Draft Convention, Doc. 8, Sept. 26, 1969.

33  P. 444, Minutes of the Second Plenary Session, Doc. 86, Nov. 22, 1969.

34  Id.

35  P. 25, Report of the United States Delegation to the Inter-American Conference on Protection of Human Rights (1969).

36  E.g., Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293, para. 142 (June 22, 2015); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 34 (Nov. 13, 1985).

37  Entitlement of Legal Entities to Hold Rights under the Inter-American Human Rights System, Advisory Opinion OC-22/16, Inter-Am. Ct. H.R. (ser. A) No. 22, para. 140(2) (Feb. 26, 2016).

38  E.g., Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 399 (Jan. 28, 2009); Cantos v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 97, para. 29 (Nov. 28, 2002).

39  E.g., Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 362 (Jan. 28, 2009); Ríos et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 194, para. 334 (Jan. 28, 2009).

40  Granier et al. (Radio Caracas Television) vs. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293, para. 151 (June 22, 2015) (translation by authors). See also Entitlement of Legal Entities to Hold Rights under the Inter-American Human Rights System, Advisory Opinion OC-22/16, Inter-Am. Ct. H.R. (ser. A) No. 22, para. 119 (Feb. 26, 2016) (requiring a “direct and essential relationship” between the natural person and the legal entity) (translation by authors).

41  Granier et al. (Radio Caracas Television) vs. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293, para. 153 (June 22, 2015).

42  See Cantos v. Argentina, Preliminary Objections, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 85, para. 30 (Sept. 7, 2001).

43  See Entitlement of Legal Entities to Hold Rights under the Inter-American Human Rights System, Advisory Opinion OC-22/16, Inter-Am. Ct. H.R. (ser. A) No. 22, para. 136 (Feb. 26, 2016); William Gómez Vargas v. Costa Rica, Petition 1164/05, Inter-Am. Comm’n H.R, Report No. 72/11, para. 43 (Mar. 31, 2011).

44  Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 402 (Jan. 28, 2009). See also Herrera Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004) (failing to conclude that the newspaper’s legal representative suffered a violation of Article 13); Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293, para. 342 (June 22, 2015) (after establishing abuse of power and discriminatory treatment regarding Article 13, Court did not find a property violation to be actionable).

45  Declaration of Principles on Freedom of Expression, Principle 9.

46  American Convention, art. 13(1) (emphasis added).

47  E.g., Office of the Special Rapporteur on Freedom of Expression, Inter-American Commission on Human Rights, A Hemispheric Agenda for the Defense of Freedom of Expression, OEA/Ser.L/V/II CIDH/RELE/INF. 4/09 (2009), para. 21 [“Hemispheric Agenda”]; “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73, para. 69 (Feb. 5, 2001) (citing the European Court of Human Rights).

48  Hemispheric Agenda, para. 21.

49  American Convention, art. 13(4).

50  “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73, para. 70 (Feb. 5, 2001).

51  American Convention, art. 13(5).

52  Yet here the Special Rapporteur appears to take a different view, and considers that Article 13 excludes certain speech: “speech advocating violence, war propaganda, the incitement of hatred for discriminatory reasons, the direct and public incitement of genocide, and child pornography.” Hemispheric Agenda, para. 21. However, the Inter-American Court has not specified that these forms of expression fall outside the coverage of Article 13.

53  Herrera Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004).

54  E.g., Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293 (June 22, 2015); Ivcher Bronstein v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 74 (Feb. 6, 2001).

55  Canese v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 111 (Aug. 31, 2004).

56  Usón Ramírez v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 207 (Nov. 20, 2009); Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135 (Nov. 22, 2005).

57  Tristán Donoso v. Panama, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 193 (Jan. 27, 2009).

58  López Lone et al. v. Honduras, Preliminary Objection, Merits, Reparations and Costs. Judgment Inter-Am. Ct. H.R. (ser. C) No. 302 (Oct. 5, 2015).

59  E.g., Manuel Cepeda Vargas v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C.) No. 213 (May 26, 2010); Uzcátegui et al. v. Venezuela, Merits and Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 249 (Sept. 3, 2012).

60  Herrera Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 107, para. 128 (July 2, 2004). See also Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293, para. 140 (June 22, 2015). For similar U.S. Supreme Court case law, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254.

61  Id. paras. 128–129.

62  Id. para. 129.

63  See Canese v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 111, para. 103 (Aug. 31, 2004) (“a different threshold of protection should be applied, which is not based on the nature of the subject, but on the characteristic of public interest inherent in the activities or acts of a specific individual”); Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, para. 147 (Aug. 22, 2013) (“certain information concerning private individuals or organizations may be classified as information of public interest”).

64  In Mémoli v. Argentina, three judges attempted a definition. See Joint Partially Dissenting Opinion of Judges Manuel E. Ventura Robles, Eduardo Vio Grossi and Eduardo Ferrer Mac-Gregor Poisot, Mémoli v. Argentina (Aug. 22, 2013) (proposing a means for determining issues in the “public interest”).

65  Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177, para. 51 (May 2, 2008); Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, para. 142 (Aug. 22, 2013).

66  Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177, para. 51 (May 2, 2008) (“the prevalence of either of [the rights] in a particular case will depend on the considerations made as to proportionality”).

67  Office of the Special Rapporteur on Freedom of Expression, Annual Report 2015, p. 362.

68  López Álvarez v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 141 (Feb. 1, 2006).

69  Id. para. 164.

70  Office of the Special Rapporteur on Freedom of Expression, Annual Report 2015, p. 362.

71  Atala Riffo and Daughters v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 239, para. 139 (Feb. 24, 2012). In Velásquez Paiz et al. v. Guatemala, the Court declined another opportunity to expand concepts of expression under Article 13. Velásquez Paiz et al. v. Guatemala, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 307 (Nov. 19, 2015). The victim’s lawyers argued that the flawed investigation into Claudina Velásquez’s death owed to authorities’ “prejudices associated with her style of dress” and the poor neighborhood where her body was found. Id. para. 139 (translation by authors). The Court refused to consider whether an individual’s clothing and personal style could constitute a form of expression under Article 13. In response, Judge Roberto Caldas asserted that “the implicit message in the ineffective investigation of these cases is that expressing control over one’s own body by the free choice of clothing can place a woman in a situation of special vulnerability.” Partially Dissenting Opinion, Judge Roberto Caldas, para. 21(translation by authors).

72  See, e.g., Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission Human Rights, Violence against Journalists and Media Workers: Inter-American Standards and National Practices on Prevention, Protection and Prosecution of Perpetrators, OEA/Ser.L/V/II. CIDH/RELE/INF. 12/13 (2013); Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission Human Rights, Special Study on the Status of Investigations into the Murder of Journalists OEA/Ser.L/V/II.131. Doc. 35 (2008).

73  E.g., Vélez Restrepo and Family v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 248 (Sept. 3, 2012); Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195 (Jan. 28, 2009).

74  E.g., Sánchez Cerezo v. Mexico, Precautionary Measures 5/15, Inter-Am. Comm’n H.R. (2015); “Globovisión” Television Station v. Venezuela, Provisional Measures, Order, Inter-Am. Ct. H.R. (Sept. 4, 2004); Luisiana Ríos et al. v. Venezuela, Provisional Measures, Order, Inter-Am. Ct. H.R. (Sept. 8, 2004).

75  Ivcher Bronstein v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 74, para. 150 (Feb. 6, 2001).

76  Vélez Restrepo and Family v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 248, paras. 189–194 (Sept. 3, 2012).

77  Id. para. 191.

78  Id. para. 212. See also Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission Human Rights, Impunity, Self-Censorship and Armed Internal Conflict: An Analysis of the State of Freedom of Expression in Colombia, OEA/Ser.L/V/II Doc. 51 (2005), para. 99.

79  Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 151 (Jan. 28, 2009); Ríos et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 194, para. 139 (Jan. 28, 2009).

80  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 81 (Nov. 13, 1985). The Court has also indicated that the processes for granting licenses and concessions should be fair, “clear and precise.” Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293, para. 171 (June 22, 2015).

81  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 81 (Nov. 13, 1985). Similarly, the UN Human Rights Committee has stated that “general State systems of registration or licensing of journalists are incompatible with [Article 19].” UN Human Rights Committee, General Comment No. 34, Article 19, Freedoms of Opinion and Expression, CCPR/C/GC/34, para. 44 (2011).

82  Declaration of Principles on Freedom of Expression, Principle 6.

83  Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177 (May 2, 2008).

84  Id. paras. 57, 79.

85  Declaration of Principles on Freedom of Expression, Principle 7.

86  Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission Human Rights, Background and Interpretation of the Declaration of Principles, para. 31 (2000), available at http://www.oas.org/en/iachr/expression/showarticle.asp?artID=132&lID=1.

87  Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265 (Aug. 22, 2013). See discussion below.

88  Claude Reyes et al. v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151 (Sept. 19, 2006).

89  Id. para. 66.

90  Id. para. 77.

91  Id.

92  Id. para. 92. The Court also has held that, in cases of human rights violations, “State authorities cannot resort to mechanisms such as official secret or confidentiality of the information, or reasons of public interest or national security, to refuse to supply the information required by the judicial or administrative [investigation].” Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 219, para. 202 (Nov. 24, 2010). Further, as concerns “the investigation of punishable facts, the decision to qualify the information as secretive or to refuse to hand it over cannot stem solely from a State organ whose members are charged with committing the wrongful acts.” Id.

93  Claude Reyes et al. v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151, para. 137 (Sept. 19, 2006).

94  Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 219, paras. 201–212 (Nov. 24, 2010) (linking Article 13 to the right to truth and Articles 8 and 25); Kaliña and Lokono Peoples v. Suriname, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 309, paras. 267–268 (Nov. 25, 2015) (connecting Article 13 to the right to justice and Article 25). For more on “the right of access to justice” and “the right to the truth,” see this volume’s Chapter 6: Due Process and Judicial Protection.

95  American Convention, art. 13(2).

96  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 65 (Nov. 13, 1985); Lopez Lone et al. v. Honduras, Preliminary Objection, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 302, para. 172 (Oct. 5, 2015).

97  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 65 (Nov. 13, 1985).

98  Id. para. 51.

99  Id. para 53.

100  Id. para 54.

101  Id. para. 47.

102  López Álvarez v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 141, para. 174 (Feb. 1, 2006).

103  Cepeda Vargas v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C.) No. 213 (May 26, 2010).

104  Vélez Restrepo and Family v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 248 (Sept. 3, 2012).

105  López Álvarez v. Honduras, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 141 (Feb. 1, 2006).

106  See, e.g., García Ramírez, Gonza & Ramos Vásquez, supra note 10, at 48; David John Harris, Donna Gomien & Leo Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter 274 (1996). In contrast, the European human rights system allows prior restraints in limited circumstances. See David Harris, Michael O’Boyle & Colin Warbrick, Law of the European Convention on Human Rights 640 (3d ed. 2014).

107  Declaration of Principles on Freedom of Expression, Principle 5.

108  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 54 (Nov. 13, 1985).

109  “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73, para. 72 (Feb. 5, 2001).

110  See, e.g., Eduardo Bertoni & Carlos Zelada, Artículo 13: Libertad de Pensamiento y de Expresión, in La Convención Americana Sobre Derechos Humanos Comentada 325 (Christian Steiner & Patricia Uribe eds., 2014); Gregorio Badeni, Tratado de Libertad de Prensa 218 (2002); Hemispheric Agenda, para. 24.

111  American Convention, art. 13(4).

112  “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73, para. 70 (Feb. 5, 2001).

113  American Convention, art.13(5).

114  Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293 (June 22, 2015). See also Ivcher Bronstein v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 74 (Feb. 6, 2001) (finding violation of Article 13(3) when Peru revoked the citizenship of a television director to obstruct his influence over the network’s programs).

115  Vélez Restrepo and Family v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 248 (Sept. 3, 2012); Cepeda Vargas v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C.) No. 213 (May 26, 2010). In its merits decisions, the Inter-American Commission also does not appear to consider murder and attacks specifically as censorship in violation of Article 13(2). E.g., Oliveira v. Brazil, Case 12.308, Inter-Am. Comm’n H.R., Report No. 37/10, OEA/Ser.L/V/II, doc. 5 rev. 1, para. 103 (2011); Héctor Félix Miranda v. México, Case 11.739, Inter-Am. Comm’n H.R., Report No. 50/99, para. 56 (1999).

116  Note that previously the Inter-American Commission gave States the opportunity to demonstrate that censored material was “found within the exceptions established in the Convention.” Clark v. Grenada, Case 10.325, Inter-Am. Comm’n H.R., Report No. 2/96, OEA/Ser.L./V/II.95, doc. 7 rev. (1997).

117  “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73 (Feb. 5, 2001).

118  “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Inter-Am. Comm. H.R., Application, p. 13 (1999), available at http://www.corteidh.or.cr/docs/casos/olmedobu/demanda.PDF.

119  “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73, para. 73 (Feb. 5, 2001). For a distinct result from the European Court, see Wingrove v. the United Kingdom, Eur. Ct. H.R., App. No. 17419/90 (Nov. 25, 1996) (deferring to UK authorities’ decision to censor an allegedly blasphemous film).

120  “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 73, para. 82(c) (Feb. 5, 2001); “The Last Temptation of Christ” (Olmedo-Bustos et al.) v. Chile, Monitoring Compliance with Judgment, Order, Inter-Am. Ct. H.R. (Nov. 28, 2003).

121  Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135 (Nov. 22, 2005).

122  Id. para. 74.

123  Id.

124  Id. para. 77.

125  Id.

126  See Matus Acuña et al. v. Chile, Case 12.142, Inter-Am. Comm’n H.R. Report No. 90/05, OEA/Ser.L/II.124, doc. 5 (2006); Martorell v. Chile, Case 11.230, Inter-Am. Comm’n H.R., Report No. 11/96, OEA/Ser.L./V/II.95, doc. 7 rev. (1997).

127  Matus Acuña et al. v. Chile, Case 12.142, Inter-Am. Comm’n H.R. Report No. 90/05, OEA/Ser.L/II.124, doc. 5 (2006).

128  Id. para. 36.

129  Id.

130  American Convention, art. 13(2).

131  E.g., Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, para. 130 (Aug. 22, 2013); Tristán Donoso v. Panama, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 193, para. 56 (Jan. 27, 2009).

132  Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135, para. 79 (Nov. 22, 2005).

133  The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86, Inter-Am. Ct. H.R. (ser. A) No. 6, para 27 (May 9, 1986). See also Claude Reyes et al. v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151, para. 89 (Sept. 19, 2006).

134  E.g., Herrera Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 107, para. 136 (July 2, 2004); Canese v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 111, paras. 96, 104, 109 (Aug. 31, 2004).

135  See Tristán Donoso v. Panama, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 193, paras. 117, 132 (Jan. 27, 2009). Since Kimel v. Argentina, the Court analyzes these laws under Articles 9 and 2 of the Convention. Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177, para. 67 (May 2, 2008).

136  Fontevecchia & D`Amico v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 238 (Nov. 29, 2011).

137  Id. para. 90

138  Id.

139  Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, para. 137 (Aug. 22, 2013).

140  Hemispheric Agenda, paras. 53–73.

141  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 46 (Nov. 13, 1985). See also Hemispheric Agenda, para. 24.

142  American Convention, art. 13(2).

143  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 64 (Nov. 13, 1985).

144  Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135 (Nov. 22, 2005); Usón Ramírez v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 207.

145  Usón Ramírez v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 207, para. 66 (Nov. 20, 2009).

146  Id.

147  Id. para. 65.

148  E.g., Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, para. 130 (Aug. 22, 2013); Tristán Donoso v. Panama, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 193, para. 56 (Jan. 27, 2009).

149  E.g., Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135, para. 85 (Nov. 22, 2005); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 46 (Nov. 13, 1985).

150  Gregory C. Lisby, No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence, 9 Comm. Law & Pol’y 433, 438 (2004). See also Thomas I. Emerson, The System of Freedom of Expression 390 (1970); García Ramírez, Gonza & Ramos Vásquez, supra note 10, at 58–59. Some authors have argued for the partial decriminalization of speech. See, e.g., Ernesto Villanueva, Derecho de la Informacion 351 (2006); Eduardo Bertoni, Libertad de Expresión en el Estado de Derecho 7–10 (2000).

151  See, e.g., Hemispheric Agenda, paras. 55–57.

152  Verbitsky v. Argentina, Case 11.012, Inter-Am. Comm’n H.R., Report No. 22/94, Friendly Settlement (1994).

153  Inter-American Commission on Human Rights, Report on the Compatibility of Laws of Contempt with the American Convention on Human Rights, OAS/ser L/VII.88, Doc. 9, rev (1995), pp. 210–223.

154  Id.

155  Hemispheric Agenda, para. 55.

156  See, e.g., Office of the Special Rapporteur on Freedom of Expression, Annual Report 2015, Chapter V, Conclusions and Recommendations, para. 9 (“Promote the inclusion of inter-American standards in civil legislation so that civil proceedings against individuals who have made statements about public officials or about matters of public interest apply the standard of actual malice, in accordance with principle 10 of the Declaration of Principles, and are proportionate and reasonable”).

157  Declaration of Principles on Freedom of Expression, Principle 10.

158  Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, paras. 125–126 (Aug. 22, 2013).

159  Id.; Usón Ramírez v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 207 (Nov. 20, 2009); Tristán Donoso v. Panama, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 193 (Jan. 27, 2009); Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177 (May 2, 2008); Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135 (Nov. 22, 2005); Canese v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 111 (Aug. 31, 2004); Herrera Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004). In Uzcátegui et al. v. Venezuela, the petitioner was sued for criminal defamation by a military officer, but the Court did not analyze the subsequent liability aspect of the case. Uzcátegui et al. v. Venezuela, Merits and Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 249 (Sept. 3, 2012).

160  Only in Mémoli was the criminal sanction upheld by the Court. Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265 (Aug. 22, 2013).

161  Fontevecchia and D`Amico v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 238 (Nov. 29, 2011).

162  See, e.g., Office of the Special Rapporteur on Freedom of Expression, Annual Report 2015, Chapter V, Conclusions and Recommendations, paras. 8–9; Hemispheric Agenda, para. 57. Recently, Chilean president Michelle Bachelet brought a criminal libel suit against journalists of the magazine Qué Pasa. See Declaración de Revista Qué Pasa ante querella de presidenta Bachelet, May 31, 2016, available at http://www.quepasa.cl/articulo/politica/2016/05/declaracion-de-revista-que-pasa-ante-querella-de-presidenta-bachelet.shtml/.

163  E.g., Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135, para. 85 (Nov. 22, 2005); Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 46 (Nov. 13, 1985).

164  E.g., Usón Ramírez v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 207, para. 73 (Nov. 20, 2009) (“The Court has pointed out that Criminal Law is the most restrictive and severe means to establish liabilities for illicit behavior, particularly when sanctions involve deprivation of liberty. Therefore, the use of the criminal way shall respond to the principle of minimum intervention, due to the nature of criminal law as ultima ratio.”); Canese v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 111, para. 104 (Aug. 31, 2004) (similar).

165  Fontevecchia and D`Amico v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 238, para. 74 (Nov. 29, 2011) (“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”); Tristán Donoso v. Panama, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 193, para. 129 (Jan. 27, 2009) (similar).

166  For more on how these concepts are linked, see Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, para. 46 (Nov. 13, 1985) (“the ‘necessity’ and, hence, the legality of restrictions imposed under Article 13(2) on freedom of expression, depend upon a showing that the restrictions are required by a compelling governmental interest”); Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135, para. 85 (similar).

167  Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135 (Nov. 22, 2005).

168  Id. para. 254.

169  Usón Ramírez v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 207 (Nov. 20, 2009).

170  Id. para. 88.

171  Id. para. 63.

172  Id. para. 57.

173  Id. para. 86. Although Usón Ramírez affirmed that opinions “cannot be the object of any sanction,” the judgment ignored the contradiction that Francisco Usón Ramírez had been imprisoned for over three years, precisely for expressing his opinion. Id.

174  For a relevant Commission case, see Robles Espinoza and Sons v. Peru, Case 11.317, Inter-Am. Comm’n H.R., Report No. 20/99, para. 175 (1999) (concluding that “through the imposition of enforced retirement as a disciplinary measure, the filing of two criminal suits, and other threats … the Peruvian State has submitted General Rodolfo Robles Espinoza to a process of harassment and intimidation in retaliation for his revelations regarding human rights violations committed by members of the Peruvian Armed Forces”).

175  Herrera Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 107 (July 2, 2004).

176  Id. para. 105.

177  Canese v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 111 (Aug. 31, 2004).

178  Id. paras. 106–108; Herrera Ulloa v. Costa Rica, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 107, para 135 (July 2, 2004).

179  Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177 (May 2, 2008).

180  Id. para. 43.

181  Id. para. 71

182  The Inter-American Court cited the European Tribunal’s decision Mamere v. France for the proposition that “the eminent value of freedom of expression, especially in debates on subjects of general concern, cannot take precedence in all circumstances over the need to protect the honor and reputation of others, be they ordinary citizens or public officials.” Id. para. 78, FN 57.

183  Id.

184  Id. paras. 78, 93.

185  Id. para. 78.

186  Judge García Ramírez Concurring Opinion, para. 26, Kimel v. Argentina (stating that it is “necessary to advance” from criminal to civil proceedings in this area).

187  Id. para. 67.

188  Id. para. 91.

189  Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, para. 131 (Aug. 22, 2013).

190  Although it is true that the Mémoli judgment cited the conditions. Id. para. 139. For additional critiques of the Mémoli judgment, see, e.g., José Miguel Vivanco, Un caso argentino, fiel reflejo de las limitaciones a la prensa en la región, Diario La Nación, Argentina, Nov. 11, 2013, http://www.lanacion.com.ar/1637121-un-caso-argentino-fiel-reflejo-de-las-limitaciones-a-la-prensa-en-la-region; Eduardo Bertoni, Retroceso y tensión en la Corte Interamericana, La Nación, Costa Rica, Nov. 28, 2013, http://www.nacion.com/opinion/foros/Retroceso-Corte-Interamericana-Derechos-Humanos_0_1381061885.html.

191  Mémoli v. Argentina, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 265, para. 137 (Aug. 22, 2013).

192  Id. para. 143.

193  Id.

194  Id. para. 144.

195  Kimel v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 177, para. 67 (May 2, 2008).

196  Id. para. 114.

197  See Joint Partially Dissenting Opinion of Judges Manuel E. Ventura Robles, Eduardo Vio Grossi and Eduardo Ferrer Mac-Gregor Poisot, Mémoli v. Argentina (proposing a means for determining issues in the “public interest,” and arguing that this matter fell within the public interest).

198  Id. para. 147.

199  Id.

200  Fontevecchia and D`Amico v. Argentina, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 238 (Nov. 29, 2011).

201  Id. para. 74.

202  Id. para. 56.

203  Id. para. 62.

204  Id. para. 75.

205  See Stokes v. Jamaica, Case 12.468, Inter-Am. Comm’n. H.R., Report No. 23/08, OEA/Ser.L/V/II.134, doc. 5 rev. 1 (2009) (finding no Article 13 violation for a severe civil libel judgment (approx. GBP ₤533,000) and holding “absent clear errors or due process violations, the Commission finds that the domestic courts were in the best position to determine the amount, and to assess the proportionality of the award with respect to the harm suffered”).

206  See, e.g., Daniel A. Farber, The First Amendment 91 (2010) (summarizing and analyzing the U.S. Supreme Court rule); Declaration of Principles on Freedom of Expression, Principle 10 (stating a somewhat similar principle).

207  See Dario Milo, Defamation and Freedom of Speech 256–79 (2008). The American Convention’s Article 14, Right of Reply, establishes in part: “Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.”

208  American Convention, art. 13(3).

209  Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, Inter-Am. Ct. H.R. (ser. A) No. 5, paras. 47–48 (Nov. 13, 1985).

210  American Convention, art. 13(3). Principles 12 and 13 also offer examples of “indirect” restrictions. Declaration of Principles on Freedom of Expression, Principles 12 and 13.

211  Canese v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 111, para. 107 (Aug. 31, 2004).

212  Id.

213  Id.; Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135, para. 94 (Nov. 22, 2005).

214  Palamara Iribarne v. Chile, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 135, paras. 100, 106–107 (Nov. 22, 2005).

215  Ivcher Bronstein v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 74, para. 155 (Feb. 6, 2001).

216  Id. para. 162.

217  Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations, Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 293 (June 22, 2015).

218  Id. para. 197 (translation by authors).

219  Id. para. 171 (translation by authors).

220  Id. para. 188 (translation by authors).

221  Id. para. 199. It is also important to note that the Court found discriminatory treatment in the exercise of freedom of expression, on the basis of the petitioners’ political opinion. Id. para. 235.

222  Id. paras. 380–382; Ivcher Bronstein v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 74, paras. 181–182 (Feb. 6, 2001).

223  The Court did not consider, for example, that the State’s seizure and subsequent use of RCTV’s broadcasting facilities resulted in violations of the freedom of expression and the right to property. Id. para. 359.

224  Id. para. 193.

225  Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 118 (Jan. 28, 2009); Ríos et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 194, para. 107 (Jan. 28, 2009).

226  Id.

227  Vélez Restrepo and Family v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 248 (Sept. 3, 2012).

228  Uzcátegui et al. v. Venezuela, Merits and Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 249 (Sept. 3, 2012).

229  Cepeda Vargas v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C.) No. 213 (May 26, 2010).

230  López Lone et al. v. Honduras, Preliminary Objection, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 302 (Oct. 5, 2015).

231  On the other hand, the Court noted that certain types of “conduct” of judges may be limited, in order to protect Article 8 of the American Convention and the independence and impartiality of judicial proceedings. Id. para. 171 (translation by authors).

232  Id. para. 341 (not finding violations to other paragraphs of Article 13, but finding breaches to distinct Convention provisions, such as Article 15 (Right of Assembly) and 23 (Right to Participate in Government)).

233  Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission Human Rights, Violence against Journalists and Media Workers: Inter-American Standards and National Practices on Prevention, Protection and Prosecution of Perpetrators, OEA/Ser.L/V/II. CIDH/RELE/INF. 12/13, para. 1 (2013).

234  The ICCPR’s Article 20 provides: “1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” The European Convention’s Article 10 establishes, in part: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

235  In a case involving Cuban dissidents, the Inter-American Commission assessed Cuba’s criminal laws punishing “Acts against the Independence or Territorial Integrity of the State.” Oscar Elías Biscet et al. v. Cuba, Case 12.476, Inter-Am. Comm’n H.R., Report No. 67/06, para. 191 (2006). Cuba is not a State Party to the American Convention, so the Commission applied the American Declaration of the Rights and Duties of Man. It held that the criminal laws at issue were “a means to silence ideas and opinions because they discourage any type of criticism for fear of the aforementioned penalties.” Id. para. 209. As a result, the laws “impair the essence of the right of freedom of investigation, opinion, expression, and dissemination established in Article IV of the American Declaration.” Id.

236  Among other points, the Special Rapporteur has expressed concern that regional legislation to prohibit hate speech against LGBTI persons suffers from vagueness, “which could compromise the effective enjoyment of the right to freedom of expression on issues of public interest.” Office of the Special Rapporteur on Freedom of Expression, Annual Report 2015, p. 361.

237  Id. at p. 367.

238  Id. at p. 371.

239  Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195 (Jan. 28, 2009); Ríos et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 194 (Jan. 28, 2009).

240  Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 195, para. 139 (Jan. 28, 2009).

241  Id. para. 426(5).