111. The Representatives asked the Court that it prevent the recurrence of cases
such as the present case, that it order the State to take the measures necessary to
adapt the domestic legal system to the standards set by international law on freedom
of expression. Moreover, they also noted that many of the improvements reported by
the State do not reverse the violations alleged nor demonstrate that similar events
cannot be repeated. Recalling the major problems that given its discretion Argentine
legislation introduced in this regard (supra paras. 77 to 81), they requested that the
following norms be declared incompatible with the American Convention: a) the
protection of privacy of persons (Article 1071 bis of Civil Code), b) protection of moral
damage (Article 1078 Civil Code), and c) the parameters for the purpose of allocating
compensation for damage caused (mainly regulated by Articles 1068 and 1069 the
Civil code). Notwithstanding the abovementioned, they stated that they do not believe
that each of the abovementioned norms are in themselves contrary to the Convention,
but, taken together, and in the absence of other norms that limit the discretion that is
left to the judge in each case, do not meet relevant international standards.
112.
The State argued that as a result of legislative, institutional, and jurisprudential
reforms that took place in Argentina on freedom of expression, "it may be considered
that the legal regime on civil liability in relation to the right to freedom of expression is
regulated in a manner consistent with international standards applicable on the
matter." It affirmed that the Argentine legal system is mixed, in such a way that it
does not exhaust all the legal instruments in the articulations of the codes to define
and regulate rights. It added that it is also necessary to have a flexible system that
can take into account diverse and changing factors at the time controversies are
decided. Finally, the State highlighted that the Commission, in its Report on the Merits,
did not mention the need for a legislative reform.
113. The Court found that the civil sanction against Mr. Fontevecchia and Mr.
D'Amico constituted an act in violation of Article 13 of the American Convention (supra
para. 75), however, it did not find a violation of Article 2 thereof regarding civil law
(supra para. 96). The Court does not deem it necessary to order the State to carry out
the measure of reparation being requested and that indicated regarding the control of
conformity with the Convention to be sufficient. (supra paras. 93 and 94).
C. Compensation
1. Pecuniary damage
114. The Court has developed in its jurisprudence the concept of pecuniary
damages and has established that pecuniary damage encompasses the loss or
detriment to earnings of the victims, the expenses incurred based on the facts, and
the consequences of a pecuniary nature that have a causal link with the facts of this
case. 77 In this case the representatives requested as pecuniary damages, the
payment of expenses incurred in the processing of the domestic proceeding and loss
of earnings.
1.1. Costs incurred in the domestic judicial proceeding
115. The Commission considered that the State must order a full reparation for the
alleged victim, including material aspects.
77
Cf. Case of Bámaca Velásquez V. Guatemala. Reparations and Costs. Judgment of February 22,
2002. Serie C No. 91, para. 43, and Case of López Mendoza V. Venezuela, supra note 12, para. 231.
34
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