obligation that the provision be provided for by law is aimed at ensuring that the restrictions are not
arbitrarily left to the discretion of public authorities.67
105.
The IACHR notes that in order to justify the dismissal, the employer invoked Article 5(h) of
Legislative decree 24514 on Job Security, enacted by the Congress of the Republic on June 5, 1986, and
according to which, “The following constitute serious infractions: (h) […] serious verbal misconduct against the
employer, its representatives, senior staff, or coworkers.” In these types of cases, it is not necessary for the
definition of the infraction to meet the levels of specificity required in criminal matters. Nevertheless, when
the issue concerns an infraction that carries an onerous penalty, the provision must be clear in terms of its
content and scope, as this is the only way to ensure that individuals will be able to conduct themselves in
keeping with the law. This does not mean that the infractions have to be defined with absolute precision, but
the penalty does have to be foreseeable, and the provisions must not be susceptible to arbitrary
interpretations by the employer.
106.
In addition, in matters concerning limitations to freedom of expression in a labor context, the
terms of the regulation must be especially careful to prevent fear and self-censorship among workers’
representatives.
107.
In this case, the IACHR finds that the terms of the law on which Mr. Lagos del Campo’s
dismissal was based are vague and imprecise, particularly because they do not define the scope of application
for purposes of protecting speech about matters of public interest or the speech of workers’ representatives
acting in their capacity as such. The Commission finds that this, in addition to affecting foreseeability with
respect to the prohibited conduct, in practice renders the defense of workers’ rights illusory. Similarly, given
that this violation has occurred as a result of the application of a law that does not meet the requirements of
legality, Peru also breached Article 2 of the American Convention, which requires States to adopt legislative
or other measures that are necessary to give effect to the rights and freedoms recognized in the treaty.
108.
Having said this, the Commission must nonetheless examine whether the restriction or
limitation in this case served some legitimate State imperative and whether it was strictly necessary to
achieve that purpose, to provide a systematic and thorough discussion of the possible violations of the right
to freedom of expression that the case sub judice may involve.
Legitimate purpose
109.
The second matter that must be reviewed when examining whether a restriction on the
freedom of expression is compatible with Article 13.2 of the Convention refers to identifying the objective
being sought by the restrictive measure. Indeed, the restriction shall only be legitimate if it seeks to achieve
one of the objectives enshrined in Article 13.2 of the Convention.
110.
The Commission notes that the provision seeks to protect a harmonious workplace and the
hierarchical order within a company, therefore protecting the honor and reputation of others who work at
the company, whether they are employers or even other employees. As stated previously, this purpose is
compatible with the text of the American Convention, which recognizes the subsequent imposition of liability
for the exercise of freedom of expression in order to protect the right of individuals to their honor and
reputation.
Necessity of the restriction in a democratic society
111.
According to the criteria examined above (supra paras. 73-98), when conducting the third
part of this test, the question that the Commission must answer is whether the penalty that was imposed
67 Cfr. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American
Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, paragraph 40, and Case of Claude-Reyes et
al. v. Chile. Merits, Reparations and Costs. Judgment of September 19, 2006. Series C No. 151, paragraph 89. Case of Kimel v. Argentina.
Merits, Reparations and Costs. Judgment of May 2, 2008, Series C, No. 177, paragraph 63.
21