An important international human rights case on privacy and freedom of expression has recently been brought to our attention.  On 29 November 2011 the Inter American Court of Human Rights handed down judgment in the case of Fontevecchia v Argentina (Case No 12.524).  The case involved the conviction and order to pay damages of two journalists –  Jorge Fontevecchia and Héctor D’Amico –  for the disclosure of personal information about the life of Carlos Saúl Menem, the then President of Argentina. There was a public hearing on 24 and 25 August 2011 in Bogota.

Background

In October and November 1995 the magazine Noticias carried reports to the effect that then President Menem and Ms. Martha Meza had had a child out of wedlock in 1981, a child born of a relationship the two had while he was incarcerated in the province of Formosa. According to the petitioners, the magazine also reported details about the source of Ms. Martha Meza’s assets and about her personal relationship with Mr. Menem. There were allegations of money and favours being given to the child’s family because of their connection to the President.

The President sued the journalists for invading his family’s privacy. The lower court initially rejected the case, but the Appeals court ordered the petitioners to pay 150,000 pesos as compensation “for [violation of the] right to privacy” and “inasmuch as none of the factors that would justify the invasion of privacy, especially the prevailing public interest or the consent of the interested party, was present.”

The petitioners filed an extraordinary appeal with the Supreme Court to challenge the ruling of the Court of Appeals. On 25 September 2001, the Supreme Court decided to uphold the bulk of Appellate Court ruling; it did, however, reduce the damages award to 60,000 pesos (£41,000)

The petitioners applied to the Inter American Commission on Human Rights on 15 November 2001 complaining of a violation of Article 13 of the American Convention on Human Rights – the right to freedom of thought and expression. The petition was declared admissible on 12 October 2005.  On 31 July 2010 the Commission adopted a merits report and submitted the case to the Court (these documents are available only in Spanish).

Amicus briefs were submitted by Article 19 and the Committee to Protect Journalists.

Judgment

The Court noted the essential role played by the media as “vehicles for the exercise of the social dimension of freedom of expression in a democratic society” [44].  It also noted that statements regarding a person’s qualification to hold office or the actions of public officials in the performance of their duties [47].  However, it went on to note (relying, inter alia, on Von Hannover v Germany) that

“the State has an obligation to guarantee the right to privacy through positive actions, which may involve, in some cases, the adoption of measures to ensure that private life is protected against interference by public authorities as well as by individuals or private institutions, including the media” [49]

As a result, the Court had to find a balance between private life and freedom of expression [50].

The civil penalty which was imposed on the petitioners was provided for in law and was for a legitimate end [52] and [53].  The Court therefore went on to consider whether the restriction of freedom of expression was necessary in a democratic society.

The Court noted that there were “two important standards” for the dissemination of potential private life issues which related to

“a) the different threshold of protection for public officials, especially those who are popularly elected, for public figures and individuals, and b) the public interest in the actions taken”. [59]

As to the former, it was noted that the case involved a person who held the highest elective office and was, therefore, subject to greater scrutiny regarding both his official activities and “also regarding aspects that, in principle, could be linked to his private life but revealed matters of public interest” [60]

In relation to public interest the Court’s conclusion was clear:

“The information on the existence of the unacknowledged child of Mr. Menem, and the latter’s relationship with the child and his mother constitute an inseparable and central element, and the main cause of the facts published by the magazine Noticias that reported on: a) the provision of large sums of money to these people by the highest ranking public official of the country, b) the delivery to such persons of expensive gifts, and c) the alleged existence of negotiations and economic and political favors to Mrs. Meza’s former husband. This information relates to the integrity of political leaders, and without the need to determine the possible use of public funds for personal purposes, the existence of large sums and costly gifts on behalf of the President of the Nation, as well as the possible existence of negotiations or interference in a judicial investigation, are issues that involve a legitimate social interest. Due to the foregoing, for this Court, the information released by the magazine Noticias is of public interest, and its publication called attention to exercise social control and legal proceedings in respect to such acts” [62]

Furthermore, the evidence showed that information about the President’s “family ties” and possible paternity of the child has been widely disseminated in the media at least 2 years before the publication complained of and Mr Menem had not taken measures to safeguard his privacy [63] to [64].  Furthermore, he had received the mother and child in offical residences.  As a result

” The Court recalls that the right to privacy is available to the applicant and, therefore, the conduct displayed by him is relevant. In this case, his conduct did not safeguard his own private life in these areas” [65]

Although images and personal photos fell within the scope of protection of private life, the images supported the credibility of the written accounts.  As a result

“the images contribution to the debate that is of a general interest and are not simply aimed at satisfying the desire of public curiosity about the private life of President Menem” [68].

As a result, the Court considered that

“the publications involved matters of public interest, which were in the public domain and involving the alleged victim who, by way of his own conduct, had not ontributed to protect the information that he later contests. Thus, there was not an arbitrary interference with the right to private life of Mr. Menem” [71]

As a result, the liability imposed on the petitioners violated their right to freedom of thought and expresssion under Article 13 of the American Convention.

Comment

Although not surprising in its result, this judgment provides an interesting example of an international human rights court balancing privacy and freedom of expression.  The Inter-American Court took into account the jurisprudence of the European Court of Human Rights as well as its own privacy and freedom of expression case law.

The case shows the importance of focussing on public interest arguments in the privacy context and the level of scrutiny that can properly be applied to the private lives of public officials.

The “measures of satisfaction” ordered by the court included public of the official summary of the judgment in a newspaper of national circulation and on the website of the Supreme Court.  In addition, it ordered the revocation of the domestic decisions ordered the payment of costs and damages.  However, it refused to order the payment of non-pecuniary damages finding that

“the issuance of this Judgment, the extent of revoking the domestic decisions in their entirety, and the publication of this Ruling in various media streams, private means as well as those with wide circulation of social and official means, which includes the judiciary, are sufficient and appropriate measures of reparation to remedy the violations inflicted on the victims” [123]