Case Summary and Outcome

The Inter-American Court found a violation of a union organizer’s freedom of expression after he was fired for criticizing his employer in a magazine article. Alfredo Lagos del Campo brought the case after an appellate court found his dismissal “lawful and justified” for harming the reputation of the company he worked for by alleging management interference into the union’s election process. The Court observed that the statements were of public interest and therefore enjoyed enhanced protection. Mr. Lagos del Campo was interviewed in his capacity as the leader of a labor union and his comments related to the role of the employer and public officials in alleged irregularities in the process of electing the members of a body representing and defending the rights and interests of workers. As such they did not exceed the scope of protection of freedom of expression, nor did they did have a manifestly defamatory, libelous or malicious purpose against the company or any particular individual.

Facts

On July 1, 1989, Alfredo Lagos del Campo was fired as a result of statements he made in a magazine against the management of the company where he worked and served as a leader of a labor union. In the interview, he stated that the company management had resorted to “blackmail and coercion” to carry out “fraudulent” elections outside the union’s Electoral Committee which he chaired. As a result, the employer opened disciplinary proceedings against Mr. Lagos del Campo on the ground that he had “seriously fouled his word” and damaged the company’s reputation. He was subsequently dismissed from employment.

Mr. Lagos del Campo then went to court seeking protection of his freedom of expression and labour rights. The court of first instance granted his claims in a judgement of March 5, 1991, and ordered his reinstatement on the grounds that the company had failed to prove the serious misconduct it had alleged. The company appealed the decision and insisted that Mr. Lagos del Campo had damaged the reputation of the company by accusing his managers of using “blackmail” and “coercion” to influence elections and co-opt the union. In a judgement of August 8, 1991, the Court of Appeal found that the dismissal was “lawful and justified”, as Mr. Lagos del Campo had severely mistreated the company. It held that the right to freedom of expression enshrined in the Constitution did not extend to offending the honour and dignity of the directors of the employing company. Consequently, it reversed the lower court’s decision and, instead, denied the claims in the complaint.

Between August 1991 and February 1998, Mr. Lagos del Campo unsuccessfully pursued various legal remedies before the courts in Peru, seeking the invalidation of the Court of Appeal’s judgement and the protection of his rights to freedom of expression and to work. On August 5, 1998, he filed a petition before the Inter-American Commission on Human Rights (IACHR) claiming the State had failed to protect his right to express opinions as a labour leader in the context of an electoral conflict involving the workers he represented.

Given the lack of justice in the case, the matter was submitted to the Inter-American Court of Human Rights by the IACHR on November 28, 2015. In its application, the IACHR requested that the State of Peru be declared responsible for the violation of article 13 of the American Convention on Human Rights, among other violations. After the corresponding proceedings, the Court granted the request and determined that the State violated the rights to freedom of thought and expression, to judicial guarantees, to labour stability and to the  freedom of association of Mr. Lagos del Campo, on the ground that the appellate court erred in affirming the irregular dismissal of the labour leader. Consequently, it ordered the measures of full reparation that it considered appropriate.

Decision Overview

In relation to the alleged violation of the right to freedom of expression, the Inter-American Court had to decide whether the State of Peru had violated article 13 of the American Convention on Human Rights by upholding the appellate ruling which affirmed the dismissal of Mr. Lagos del Campo on the basis of statements he had made against his employer. Specifically, it had to examine two questions. First, whether the statements made by the union leader were of public interest and could be the subject of enhanced protection, taking into account the employment context in which they were expressed and his capacity as a representative of the workers. Secondly, whether the judicial authority took these elements into account when endorsing the restriction on freedom of expression and whether it was in conformity with the standards of free expression recognized in the Convention.

To resolve the issue, the Court reiterated its jurisprudence concerning the dual individual and collective dimensions of freedom of expression. It recalled that this right protects the right to seek, receive and impart ideas and information of any kind and by any means, as well as to receive information and ideas spread by others. The Court stressed the importance of freedom of expression for the quality of democracy and for the formation of public opinion. In particular, the court mentioned that in the labour sphere, respect for and guarantee of freedom of expression is indispensable for the exercise of trade unions and for the defense of workers’ rights and interests.

The Court recalled the duty of states to take positive action to protect this freedom, including in the private sphere. This obligation includes the duty to review, through their administrative and judicial authorities, whether the restrictions imposed on free expression in the sphere of private relations are in accordance with the Convention and, if they are not, to take the necessary steps to correct the situation. It specified that in the labour sphere this obligation takes on special significance and triggers reinforced duties of protection when the information is of general or public interest and is expressed in the exercise of his or her functions as a representative of workers.

The Court held that freedom of expression is not an absolute right and that its protection must be reconciled with the realisation of the other rights recognised in the Convention, in particular the right to honour and dignity. Despite this, it specified that restrictions on freedom of expression are exceptional and must meet standards of legality and necessity that avoid excessive limitations that amount to prior censorship. In this regard, the Court pointed out that Article 13. 2 of the Convention allows for subsequent liability for the exercise of freedom of expression, provided that the restrictions imposed meet the following concurrent requirements: i) they are clearly established by law, understood in a formal and material sense; ii) they seek to achieve important purposes enshrined in the Convention, such as respect for the reputation of others or the protection of national security, public order or public health or morals, and; iii) they are necessary in a democratic society, that is, they meet the requirements of legitimacy, necessity and proportionality.

In light of the above,  the Court determined that the statements made by the labour leader were of public interest and, therefore, enjoyed enhanced protection. The Court observed they were made in his capacity as a representative of the workers; they referred to a situation of general interest and were published in a magazine; they were related to alleged irregularities that were occurring in the process of electing members of a body representing and defending the rights and interests of the workers; they involved the employer and public officials; and they did not exceed the scope of protection of freedom of expression, since they did not have a manifestly defamatory, libelous or malicious purpose against the company or any person in particular. In this regard, the Court recalled that the Convention protects even provocative expressions that irritate, shock or disturb public officials or any sector of the population.

The Court, following the European Court of Human Rights, also considered that certain manifestations of workers in certain contexts of the private sphere could be understood as being of public interest, as was precisely interpreted in the specific case. The IACHR Court stated that the broadcasting of information concerning the labor sphere, in general, had a public interest, as it derived in a collective interest for the workers concerned.

Subsequently, it found that the restrictions imposed on Lagos del Campo’s freedom of expression through his dismissal and subsequent affirmation by the domestic judicial authority constituted a violation of his rights. In this regard, it first found that the dismissal of the alleged victim satisfied the principle of legality, insofar as the legislation in force provided for the possibility of terminating the employment contract of an employee who harmed the honour of the employer or fellow colleagues. The Court also noted that the degree of precision required in domestic legislation depends considerably on the subject matter – and therefore cannot be required in the same way for a labor norm as for one of a criminal nature -. “[T]he law must be formulated with sufficient precision to enable people to regulate their conduct so as to be able to predict the consequences that a given action may entail to a degree that is reasonable under the circumstances.” [para. 120]. The provision was “conventionally” admissible, as it pursued the legitimate aim of protecting the right to honour recognised in the Convention.

Notwithstanding the above, it found that the manner in which the sanction was applied did not meet the parameters of necessity and proportionality. First, it was not necessary because (i) dismissal was the maximum sanction imposed in the field of labour relations; (ii) the sanctioned employee was an elected representative of the workers and in that capacity was entitled to special protection; (iii) the statements referred to matters of public interest for the workers of the company and for society; iv) the employee’s statements enjoyed enhanced protection insofar as they were made in his capacity as a labour leader; v) they did not go beyond the “conventionally” protected scope of freedom of expression and; v) it was not demonstrated that the dismissal was necessary for the protection of honour and reputation in the specific case. Secondly, the judgment that resolved the appeal was not proportionate because i) it did not sufficiently analyse and weigh the rights at stake; ii) it did not accurately assess the arguments of the parties; iii) it did not take into account the special protection enjoyed by the worker’s expressions in view of their public interest and his status as a representative of the workers and; iv) it did not refute the arguments of the first instance judgment that granted the judicial protection.

Therefore, the Court declared the State of Peru responsible for the violation of the labour leader’s freedom of expression. Consequently, it ordered the State to publish the judgment and its official summary as a form of reparation; to pay a fixed amount of money for material damages, which constituted loss of earnings due to lost wages, pension and social benefits; to pay a fixed amount of money for non-material damages for the violations that had been proven; and to pay the costs and expenses incurred.