20
79.
Furthermore, regarding the right to seek, receive, and disseminate ideas and
information, the Court deems that 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. This implies the right not to receive a manipulated version of the
facts. Therefore, journalists have the duty to keep a critical distance from sources and
match the information against other relevant data.
80.
In the instant case, the abusive exercise of punitive power –as acknowledged by the
State itself- is evident, taking into consideration the crimes charged to Mr. Kimel, the
impact they had on his legally protected interests, and the nature of the sentence imposed
on the journalist –deprivation of freedom.
iv)
Strict proportionality of the measure adopted
81.
The Commission alleged that “Mr. Kimel’s conduct fits into the reasonable exercise of
his right to work in the field of investigative journalism, as he disseminated information of
obvious interest for the Argentine public opinion, based on a previous investigation and
aiming at contributing to debate and serving as an element to monitor the actions of a
public official in the performance of his duties.” In this regard, it pointed out that “in a
society which endured a military rule as the Argentine dictatorship from 1976 to 1983,
freedom of thought and expression acquires a fundamental importance for the historical
reconstruction of the past and the formation of public opinion.” Therefore, “everyone should
be free to express his opinion in accordance with his own thought; […] to examine, whether
thoroughly or not, the actions of public officials who held office at the time, among them,
the members of the [J]udiciary; and to criticize, even fiercely and bitterly, their
performance.” It added that the judge mentioned by Mr. Kimel “was suppos[ed] to tolerate
the critical opinions express[ed] on the performance of his duties as a judge.”
82.
The representatives agreed with the Commission and alleged that “the events on
which Mr. Kimel informed are in the public interest,” taking into consideration that the
investigation referred to “a case which was paradigmatic of the repression” and that the
“investigation conducted by the journalist is part of [the] revision that the Argentine society
must make and of the debate on the reasons why the military government carried out their
plans without encountering any obstacles in the Judiciary.” They added that Mr. Kimel “did
not use any language which might be considered abusive,” nor did he use “excessive or
injurious language;” that he mentioned the judge “only in relation to his actions as a public
official and did not encroach on any aspect of his personal life or his personality which was
not related to the performance of his duties as a public official;” that in the paragraphs of
the books where he included statements of facts “all that was stated was true reality” and
that “the paragraphs that were challenged in the criminal proceedings” contained “critical
value judgments on the Judiciary of the time,” whereby “they cannot be described as true or
circumstances over the need to protect the honor and reputation o others, be they ordinary citizens or public
officials.” Cf. Case of Mamere v. France, no. 12697/03, § 27, ECHR 2006.
Furthermore, in the Case of Castells the European Court stated that “it remains open to the competent State
authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal law nature,
intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in
bad faith.” Cf. ECHR, Case of Castells v. Spain. Judgment of April 23, 1992, Series A, No. 236, § 46.
In a recent decision it held that “the imposition of a prison sentence for a press offense will be compatible with
journalists’ freedom of expression as guaranteed by Article 10 of the Convention, only in exceptional
circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case
of hate speech or incitement to violence.” Cf. Case of Cumpana and Mazare v. Romania [GC] no. 33348/96, § 115,
ECHR 2004-XI.