What does the Doctrine of Actual Malice consist of?

The judgment of the Supreme Court of Justice upheld the North American doctrine of “Actual Malice”, which protects journalists against the demands of public officials for criticism or comments issued through the press. Indeed, in the well-known case “The New York Times against Sullivan” the Supreme Court of Justice of the United States established this doctrine, pointing out that if the constitutional principle of freedom of expression is to be applied, it is inevitable that in the In the course of a free debate of ideas, erroneous affirmations take place. Hence, the truly important thing in order to determine whether a crime was committed or not, is to establish whether there was manifest malice on the part of the journalist, that is, a actual, effective and proven intent to offend,

And consequently, with its line of thought, the Supreme Court went one step further by highlighting the importance of not reversing the burden of proof to the detriment of the journalist in question. Thus, for the high court, it is not the journalist who is sued who must prove his innocence, since he is presumed to be innocent unless proven otherwise; Evidence to be provided by the allegedly affected party. In other words, the presumption of innocence that protects the journalist when he complies with the duty to report on public affairs makes a wrong or untrue statement be included in the constitutional protection of freedom of the press, unless the journalist has acted with manifests bad faith (real malice) and that it has been reliably demonstrated in court

Freedom of expression, the importance of exercising it responsibly, as well as the constant threats that lie in wait for it are central elements of any society that boasts of being truly democratic.

However, more frequently than desirable, freedom of expression is threatened with full force for various reasons. One of the root causes of most of these conflicts lies in the ever-present tension between the media and the political class. Unfortunately, many times this conflict – which is healthy when it maintains its balance – is distorted as a consequence of the extremism with which both try to pay their theses. Thus, while one sector prioritizes the value of freedom of expression, bringing it to the category of an almost absolute right, a kind of supra right over good and evil, the other sector, on the opposite extreme, claims, openly or overlappingly, through legal manipulations of all kinds empty it of content.

In my view, both extremes are wrong. Freedom of expression represents a cornerstone for the existence of a true and authentic democratic society. Without it it is inconceivable to speak of democracy. As the Inter-American Court of Human Rights well pointed out in its Advisory Opinion OC-5/1985, when a person’s freedom of expression is restricted, it is not only their individual right that suffers violation, but also the right of all to receive information and ideas.

But it is equally absurd, for the very health of democracy as well as for the respect of honor, dignity, reputation or privacy that every individual deserves, to see freedom of expression as an absolute right, without limitation of any kind. In this way, one would be looking at freedom of expression from a single angle, only in favor of the media and to the detriment of the affected person and the public, who would not have a similar right to access the circuit of social communication to which that medium entered. your inaccurate or offensive report. In short, there would be no balance or reasonable equality in the freedom of expression of both.

For this reason, and from my point of view, the priority is to guarantee, in the first place, the full and responsible exercise of freedom of expression, free from any prior censorship, but leaving open the possibility of being able to go, yes, and only when the circumstances justify it, to the exercise of the right of reply (also known as the right of rectification or response) or, if appropriate, to the provision of complaints, criminal or civil, to compensate the moral damage caused.

I explain. Since freedom of expression is not an absolute right, most laws (internal and international) provide, in the event that the information is inaccurate or offensive, different resources ranging from the possibility of exercising the right of rectification or response , an eventual criminal process (if a crime was committed), and even possible compensation for damages (if it prospers in the area of ​​civil or criminal liability). However, these guarantees (different from each other since each of them protects a different legal asset) must in no way be distorted or much less manipulated in their application, in order to inhibit, restrict or blackmail the press and journalists, much less pretend through these empty content of freedom of expression. His reason for being is not this. They are,

In support of my thesis in favor of a responsible exercise of freedom of expression, I wish to quote a sentence that was recently adopted by the Supreme Court of Justice of Argentina regarding the doctrine of “real malice”. This ruling, historic for its value for the defense not only of press freedom but also of freedom of expression, annulled a previous ruling by the National Chamber of Criminal and Correctional Appeals that condemned journalist Joaquín Morales to three Years in prison suspended in a lawsuit that a former deputy secretary general of the presidency had promoted for injuries.

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