105. Regarding the first requirement, strict legality, the Court has established that
restrictions must be previously established by law to ensure that these are not left to the
discretion of the public authorities. Thus, the criminal definition of a given conduct must be
clear and accurate, 115 particularly when it concerns matters of criminal law and not of civil
law.116
106. On the second aspect, that is, the permitted or legitimate purposes, Article 13(2) of
the Convention refers to this point. While the present case concerns the restriction of the right
to freedom of expression by means of a complaint filed by a private citizen, the Court will
consider only the purpose specified in subparagraph (a) of that Article, namely respect for the
rights or reputation of others.
107. The Court has considered that, in pursuit of this legitimate end, it is necessary that the
State weigh up the right to freedom of expression of the communicator and the right to honor
of the person affected.117 Furthermore, the State has the obligation to provide a judicial remedy
so that any person who considers that his honor has been harmed can demand protection.118
108. Finally, as regards the proportionality and necessity of the measure, the Court has
understood that any restriction imposed on the right to freedom of expression must be
proportionate to the interest that justifies it, and closely tailored to the accomplishment of
that legitimate purpose, interfering as little as possible with the effective exercise of that
right.119 In that sense, it is not sufficient to have a legitimate purpose; the measure in question
must also respect the principles of proportionality and necessity in restricting freedom of
expression. In other words, “this last step of the examination, must consider whether the
restriction is strictly proportionate, in a manner such that the sacrifice inherent therein is not
exaggerated or disproportionate in relation to the advantages obtained from the adoption of
such limitation.”120
109. For its part, the European Court of Human Rights, in interpreting Article 10 of the
European Convention, concluded that the term "necessary", while not synonymous with
"indispensable", implies 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." 121 This
concept of “pressing social need” was adopted by the Inter-American Court in its Advisory
Opinion OC-5/85.122
110. Having considered the content of the right to freedom of thought and expression, and
the importance of freedom of expression in a democratic system, and having established the
requirements for ensuring that any restrictions to that right are compatible with the American
Convention, the Court will now analyze the facts of this case.
B.3. The case of Mr. Álvarez
111. In considering the case of Mr. Álvarez, the Court will first examine the nature of his
comments in the article published in the newspaper “Así es la Noticia.” It will then consider
Cf. Case of Kimel v. Argentina, para. 77.
Mutatis Mutandis, Cf. Case of Fontevecchia and D’amico v. Argentina. Merits, reparations and costs. Judgment of
November 29, 2011, Series C, No. 238, para. 89.
117
Cf. Case of Kimel v. Argentina, para. 51; and Case of Lagos del Campo v. Peru, para. 100.
118
Cf. Case of Mémoli v. Argentina, para. 125.
119
Cf. Case of Herrera Ulloa v. Costa Rica, para. 123; and Case of Claude Reyes et al. v. Chile, Merits, reparations
and costs. Judgment of September 19, 2006, Series C, No. 151, para. 91.
120
Cf. Case of Kimel v. Argentina, para. 83.
121
Cf. ECHR, Case of The Sunday Times, para. 59.
122
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, para. 46.
115
116
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