vagueness of the norm and the margin of discretion afforded to the Judge. In addition,
among other things, both expert witnesses pointed to the importance of protecting
privacy in a manner that does not involve inhibition of freedom of expression and the
need for legislative reform in this area. In addition, the expert witness Saba argued
that civil measures can result in indirect censorship and that the inhibitory effect of
civil sanctions may be even greater than that that arises from criminal liability. In his
opinion, expert witness Rivera emphasized the importance of a regulatory reform,
which is even more relevant because in the Argentine system the Supreme Court
decisions are not binding on lower courts.
89.
The Court recalls that it is the law that must establish the restrictions on
freedom of expression and only to achieve the ends that the Convention itself says.
The legal definition [codification] must be express and explicit. 65 However, the degree
of precision required of domestic legislation depends significantly on the subjectmatter. The precise definition [taxativeness] of a civil norm may be different from that
required by the principle of legality in criminal matters, given the nature of the
conflicts that the first is designed to solve. It can not be required that the civil norm,
contrary to what usually happens with criminal law, which provides extremely precise
factual circumstances that may arise; this prevents the civil norm from resolving
countless conflicts that arise permanently and that are impossible to forecast for the
legislator.
90.
The Court finds that the law must be formulated with sufficient precision to
enable people to regulate their conduct so as to be able to predict with a degree that is
reasonable under the circumstances, the consequences that a given action may entail.
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 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. 66
91.
The Court determined that the violation of Article 13 of the American
Convention stemmed from a judicial decision of the Supreme Court that affirmed a civil
sentence filed by a civil court of appeals. This measure of further liability proved
unnecessary in a democratic society and incompatible with the treaty (supra paras. 54
to 75). The Court notes that in this case, it was not the norm itself that determined the
harmful result that is incompatible with the American Convention, but rather its
others. (expediente of merits, tome I, folios 642 and seq.).
64
Moreover, the expert witness Rivera noted that the article presents content that is too vague,
limited to only some examples of violations of privacy, but without specifying in particular what behaviors
are prohibited. Nor does it distinguish between public officials and private persons, and does not even
mention public interest as a justification. The consideration] as a violation of privacy of all mortification of
the feelings of another [is] clearly inconsistent with a fundamental principle of freedom of expression under
which the State can not prohibit or punish a particular idea or opinion because it is offensive to certain
people. Nor does it establish any pattern with respect to the amount of compensation. It simply authorizes a
court to determine the amount of a "fair" compensation. (case file on the merits, tome I, folios 483 and
seq.).
65
La Colegiación Obligatoria of Periodistas, supra note 35, para. 40.
66
Cf. TEDH Case of Tammer v. Estonia, Judgment of February 6, 2001, para. 37, and Case of Editions
Plon v. France, supra note 46, para. 26.
29
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