harm to a person’s honor or privacy causes damage, without requiring verification. The
system for determining the damage set in the Argentine Civil Code is the system
designated for all cases involving damages, without considering in a particular way
those cases where its designation is also the reason for the restriction of human right,
such as freedom of expression. In this sense, upon establishing the existence of
damage and the amount of compensation, the possible effect that the designation of a
high amount may have on freedom of expression and on the debate itself of a
democratic society in general will not play any role in the logical structure of the ruling,
which will be limited to the estimation of the damage and to the amount of money
involved in compensation for it.
81.
Finally, the representatives indicated that neither existing law nor the deeply
rooted jurisprudence, effectively incorporate into the legal system the principle of
proportionality in the amounts designated for further liability. On the other hand, the
risk of a lawsuit as in this case is not limited to the amount ordered as compensation,
but there is also the costs of the opposing party, plus interests, to which the sum may
end up paying more than double the amount fixed as compensation for the moral
damage, which must be added to the expense generated by the conviction upon
publication of the judgment. Therefore, they concluded that Article 1071 bis of the Civil
Code does not meet the minimum requirements to be considered a legitimate
restriction on freedom of expression, and they requested the Court to declare that the
State failed to comply with Article 2 of the Convention.
82.
The State argued that in the context of its public policy on legislative reforms in
attempts to adapt into the Argentine legal system concerning freedom of information
and expression with the American Convention, after the reform of the Criminal Code as
part of compliance with the Judgment in the case of Kimel, the Argentine legal system
should be compatible with international standards on the matter; "the civil and criminal
legislation in force, with the interpretation that the current Supreme Court of the
Nation gives to it, is not incompatible with the American Convention." Argentina
recalled that the American Convention recognizes the right to freedom of expression
and the right to privacy, and that the exercise of each fundamental right recognized in
the Convention must be carried out with respect and the safeguard of the other
fundamental rights. Hence, a different policy reform could result in tension between
freedom of expression and the right to honor and intimacy, leaving certain situations
unprotected. To resolve the conflict between these two rights, a case by case
examination is necessary, according to the characteristics and circumstances or each
case. Thus, judicial activity thereby takes on vital importance, wherein the legislation
is interpreted in each particular case to find a proper resolution to the conflict of rights.
83.
In addition, the State indicated that in the case of civil sanctions, the
jurisprudence of the Supreme Court of the Nation has upheld the doctrine of actual
malice in a constant and uniform manner, setting appropriate standards, which are in
force in the country, and there is strong jurisprudential evolution aimed at optimizing
the Argentine legal system. Finally, it noted that the public policy on freedom of
expression implemented by the State has been adapted in a legislative, institutional,
and jurisprudential manner with international standards.
B. Considerations of the Court
84.
The Inter-American Commission did not allege a violation of the obligations
under Article 2 of the American Convention (supra para. 76 ). These allegations were
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