33
101. In this regard, it should be pointed out that Peru contested the application of a
proportionality test because, according to the State, this is derived from legal doctrine or
jurisprudence subsequent to the facts (supra para. 81). The Court notes that Article 13(2) of the
Convention expressly establishes the requirement to make an analysis of reasonableness when
there has been a restriction of freedom of expression. Furthermore, it should be noted that the
criteria on proportionality subsequently developed by this Court merely apply a general principle
of legal interpretation derived from the general matrix of rationality. Consequently, the weighing
is established in Article 13(2) of the Convention itself.
102. The Court has reiterated in its case law that Article 13(2) of the American Convention
establishes that the responsibilities ensuing from the exercise of freedom of expression must comply
with the following requirements, concurrently: (i) they must be previously established by law, in
form and in content;131 (ii) they must respond to a purpose permitted by the American Convention
(“respect for the rights or reputation of others” or “the protection of national security, public order,
or public health or morals”) and (iii) they must be necessary in a democratic society (and must
therefore comply with the requirements of appropriateness, necessity and proportionality132).
103. In particular, an evaluation of legitimate restrictions to the right to freedom of expression
requires an analysis of necessity (Article 13(2)). Thus, the State, through its agents of justice, is
required to make an analysis of reasonableness or a weighing up of the limitations or restrictions
to a human right recognized in the Convention (Article13(2)), and also an appropriate reasoning
that respects due process of law (Article 8 of the Convention). The specific methodology,
argument or analysis is the task of the domestic authorities, provided that it reflects those
guarantees. To make this evaluation at the international level, the Court has used different forms
of analysis, depending on the rights at stake, but always making an adequate weighing up or
balance between the treaty-based rights.133 Consequently, the reasoned analysis of necessity
made by this Court derives from the international treaty that it must interpret, 134 together with
its consistent case law.
104. For the purposes of this case, concerning the interpretation of subsequent responsibilities
for the exercise of freedom of expression in the workplace, the Court will analyze the restriction
imposed in light of Article 13(2) of the Convention, taking into account the following requirements,
concurrently: (i) classification of Mr. Lagos del Campo’s statements; (ii) legality and purpose, and
(iii) necessity and obligation to state reasons.135
1.2.1 Classification of Mr. Lagos del Campo’s statements
105. The Court finds it necessary to determine: (a) whether Mr. Lagos del Campo’s statements
were given in his capacity as the workers’ representative (supra, para. 96); (b) whether they
were of public interest, and (c) the significance of his statements.
131
Cf. The Word “Law” in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86 of May
9, 1986. Series A No. 6, paras. 35 and 37.
132
Cf. Case of Tristán Donoso v. Panama, supra, para. 56 and Case of López Lone v. Honduras, supra, para. 168.
133
Cf. Case of Kimel v. Argentina, supra, para. 51, and Case of Mémoli v. Argentina, supra, para. 127.
Article 30 of the American Convention (on the scope of restrictions), indicates that the permitted restrictions
“may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the
purpose for which such restrictions have been established.” Cf. The Word “Laws” in Article 30 of the American Convention
on Human Rights OC-6/86, supra, para. 38. Also, Article 32 of this instrument establishes the relationship between duties
and rights, indicating that the rights of each person are limited by the rights of others […]. Cf. Compulsory Membership
of an Association Prescribed by Law for the Practice of Journalism OC-5/85, supra, para. 65.
134
135
Cf. Case of Mémoli v. Argentina, supra, para. 130.