38
significantly on the subject matter.”158 Thus, the same degree of precision cannot be required for
all legal norms that establish restrictions of a right protected by the Convention because:
[T]he law must be formulated with sufficient precision to enable people to regulate their
conduct so as to be able to predict the consequences that a given action may entail to a degree
that is reasonable under the circumstances. As has been noted, while the certainty of the law
is highly desirable, it may bring with it excessive rigidity. On the other hand, the law must be
able to remain in force despite changing circumstances. Consequently, many laws are
formulated in terms, that to a greater or lesser extent, are vague and whose interpretation
and application are questions of practice.159
121. In addition, the Court notes that the law examined was designed to protect a legitimate
purpose that was compatible with the Convention, which is the protection of the honor and dignity
of the employers and other workers in company or in the workplace. In this regard, the Court
considers that the fact that paragraph (h) of article 5 of Law 24514 does not expressly establish
a delimitation of its application to protect statements of public interest, or those statements made
by workers’ representatives in the exercise of their functions, is not per se incompatible with the
Convention. This is because the State is not obliged to make an exhaustive determination in the
law of which statements require special protection; rather, it will be the authorities responsible
for its enforcement that must ensure the protection of other rights that are in play, in keeping
with the legitimate purposes of the norm, by an adequate control of legality.
122. In this regard, the Court recalls that, under Article 2 of the Convention, States have the
obligation to implement actions leading to the effective observance of the rights protected by the
Convention, because the existence of a law does not, in itself, ensure that it is enforced
adequately. Thus, the Court has indicated that it is necessary that the application of laws or their
interpretation, as jurisdictional practices and an expression of state public order, is adapted to
the purpose sought by Article 2 of the Convention.160 Accordingly, even though the Court finds
that paragraph (h) of Article 5 of Law 24514 did not per se violate Article 13(2) of the American
Convention, this did not exempt the authorities from ensuring that this provision was applied with
due consideration for the other constitutional and treaty-based rights of the workers and their
representatives (infra, para. 129).
123. Consequently the Court considers that paragraph (h) of Article 5 of Law 24514 does not,
per se, violate Article 13(2) of the American Convention and that, therefore, it had a valid purpose
in light of the Convention and thus did not violate the requirement of legality.
1.2.3. Necessity for the restriction and obligation to state reasons
124. The Court has established the standard that, “for a restriction of freedom of expression to
be compatible with the American Convention, it must be necessary in a democratic society,
understanding by ‘necessary’ the existence of an essential social need that would justify the
restriction.”161 Specifically, the Court must determine whether, in light of all the circumstances,
158
Cf. Case of Fontevecchia and D’Amico v. Argentina, supra, para. 89.
159
Case of Fontevecchia and D’Amico v. Argentina, supra, para. 90.
Cf. Case of Castillo Petruzzi et al. v. Peru, supra, para. 207, and Case of Lopez Lone et al. v. Honduras, supra,
para. 214.
160
Compulsory Membership of an Association Prescribed by Law for the Practice of Journalism OC-5/85, supra
footnote 36, paras. 41 to 46. In the latter paragraph, the Court indicated: “[i]t is important to note that the European
Court of Human Rights, in interpreting Article 10 of the European Convention, concluded that ‘necessary,’ while not
synonymous with ‘indispensable,’ implied ‘the existence of a 'pressing social need' and that for a restriction to be
‘necessary,’ it is not enough to show that it is ‘useful,’ ‘reasonable’ or ‘desirable.’ […]. This conclusion, which is equally
applicable to the American Convention, suggests that the ‘necessity’ and, hence, the legality of restrictions imposed under
Article 13(2) on freedom of expression, depend upon showing that the restrictions are required by a compelling public
161