Bug: "Ponzetti of Balbin, Indalia c. Editorial Atlantida SA. "
a) Acts
This case arises from the claim for damages brought by the wife and the son of Dr. Ricardo Balbin, who died on September 9, 1981 against "Editorial Atlantida SA" owns the magazine "People and today, "Vigil Carlos Vigil and Hannibal, because the magazine, in number 842 of September 10, 1981, published on its cover a photograph of Dr. Balbin when he was admitted to the intensive care ward of the Clinic Ipensa City of La Plata, which expanded to other inside the magazine, the suffering caused and mortification of the family of Dr. Balbin and disapproval of the violation of privacy by national, provincial, municipal, ecclesiastical and scientific.
The ruling of the room F of the National Chamber of Civil Appeals upheld the court of first instance, which upheld the lawsuit sought compensation for damages caused by the violation of privacy rights by Ricardo Balbin, on the basis of the provisions of art. 1071 bis of Civil Code (which entrometiere arbitrarily in the lives of others, publishing Pictures, disseminating correspondence, mortifying another in their habits or feelings or disturbing his privacy anyway, and the fact it was not a criminal offense, be compelled to cease such activities, unless they have ceased, and to pay fair compensation to be determined by the judge, according to the circumstances, it may also This, at the request of the aggrieved, order the publication of the sentence in a newspaper or periodical, if this action is appropriate for adequate compensation. ") Against it the defendant
concluded extraordinary remedy. The appellant argued that the contested decision is a violation of Art. 14 and 32 of the Constitution.
appeal is granted because it is considered that at present there is enough federal question in terms of art. 14 of Act 48 and that although the contested decision is based on the art. 1071 bis of Civil Code, the lower court to resolve the applicability of the cited standard's interpretation of the constitutional guarantee of freedom of the press contrary to the rights which it founds the appellant (third point of art. 14). ►
Article 14 of Act 48: "Once a lawsuit filed before the Provincial Court to be sentenced and deceased within provincial jurisdiction, and may only be appealed to the Supreme Court of final judgments delivered by the provincial high courts in the following cases:
--- 1 ° When the lawsuit was put question the validity of a treaty, an Act of Congress, or an authority exercised in the name of the nation and the decision was against its validity.
--- 2 ° Where the validity of a law, decree or province authority has been questioned under the pretense of being repugnant to the Constitution, treaties or laws of Congress, and the decision was in favor of the validity of the law or provincial authority.
--- 3 ° When the interpretation of any clause of the Constitution or a treaty or law of Congress or a commission performed on behalf of the national authority has been challenged and the decision against the validity of title, right; privilege or exemption which is based on that clause and is the subject of litigation. "
b) Resolution of the Court
The Court accepted the special appeal and upheld the sentence that was subject to appeal. Genaro R. Carrio. - Joseph S. Caballero (depending on your vote.) - Charles S. Fayt. - Augusto C. Belluscio (depending on your vote.) - Henry S. Petracchi (depending on your vote.)
c) Principles used by the Court
Factual:
► The defendants, who recognized the authenticity of the copies and photographs published in it admit that the cover photo has not been welcomed by many people and claim in defense exercise nonprofit sensational cruel and morbid, the right to information, insisting that it sought to document a reality, and that the life of Dr. Balbin, as a public man, have historical, belonging to the national community, not having tried to violate moral rules, morality or ethics journalism. (Recital 3)
► The photograph was taken surreptitiously on the eve of his death in the intensive care ward of the hospital where he was interned. That picture, far from attracting the interest of the public, provoked feelings of rejection and insult to the sensibilities of every normal person. (Recital 10)
► The unauthorized presence or spoiled a photographer living on the edge of a private nature that stealthily take a picture in order to be cover story in the magazine "People and the present" no justification and publication support is a violation of right to privacy. (Recital 10)
Holding
Legal grounds:
► On the right to privacy and intimacy is its constitutional foundation in the art. 19 of the Constitution. In direct relation to legally protect individual freedom of individual autonomy, an area consisting of the feelings, habits and customs, family relationships, economic status, beliefs religious, mental and physical health and, ultimately, actions, facts or data, taking into account the forms of life accepted by the community are reserved to the individual and whose knowledge and dissemination of strangers means a potential for real danger privacy. In fact, the right to privacy includes not only the domestic sphere, the family circle of friendship, but other aspects of physical spiritual personality of people such as bodily integrity or the image and no one can intrude into the private life a person or violate its areas not intended to be distributed without your consent or that of their families and only authorized thereto by law may justified the interference, provided that there is an overriding interest in safeguarding the freedom of others, defense of society, morality or the pursuit of crime. (Recital 8) ►
For celebrities whose life is public or popular characters, his public or private may be disclosed when it relates to the activity that gives them prestige or reputation and the extent justified by the interest general. But that progress on privacy is not allowed to damage the public image and honor of these people and less to argue that no one sector or sphere of privacy protected from any interference. Especially when his conduct throughout his life, have promoted their own indiscretions or action authorized, implicitly or explicitly the invasion of privacy and violation of the right to privacy in all its manifestations. (Recital 9)
Obiter dictum: ►
While not at stake the right to publish the ideas in the press without prior censorship (art. 14 of the Constitution) but the legal limits of the right to information directly related the right to privacy or privacy (art. 19 of the Constitution) is to establish first the field that is unique to each of these rights. The Court, in its capacity as interpreter final de la Constitución Nacional ha debido adecuar el derecho vigente a la realidad comunitaria para evitar la cristalización de las normas y preceptos constitucionales. (Considerando 5)
► La consagración del derecho de prensa en la Constitución Nacional, como dimensión política de libertad de pensamiento y de la libertad de expresión, es consecuencia, por una parte, de las circunstancias históricas que condujeron a su sanción como norma fundamental, y por la otra, la de la afirmación, en su etapa artesanal, del libre uso de la imprenta como técnica de difusión de las ideas frente a la autoridad que buscaba controlar ese medio de comunicación mediante la censura; de ahí que la reivindicación was referred to the dissemination and expression of "thoughts and opinions" as established by the Declaration of the Rights of Man in 1789 and thus to ensure the free publication of ideas. The media became an integral element of modern constitutional state, the right and even duty to be independent while responsible to justice for crimes committed or damage through use, with the legal consequence of the full exercise of the freedom. (Recital 5)
► "neither the Constitution of the United States nor in ours has been intended to ensure the impunity of the press. If the publication is harmful character, and if her slander or libel is a person, it is the glorification of crime, inciting to rebellion and sedition, it defies a national or provincial authorities, there can be no doubt about the right of the State to suppress or punish such publications without diminishing freedom of the press ... It is a question of fact to appreciate the judges in each case "(Failure t. 167, p. 138). (Recital 5)
►" this law lies primarily in the recognition that all men have the right to publish ideas through the press without prior censorship, that is, without the prior controller of the authority on what is going to say, but not in the subsequent impunity for those who use the press as a means to commit crimes under the Penal Code "(Decisions, vol 269, p. 195, cons. 5 º ¬ Rev. La Ley, t. 130, p. 809 ¬). (Recital 5)
► The publication of the photograph Dr. Ricardo Balbin conducted by the magazine "People and now" exceeds the legal limit and regulate the right to information. (Considerando10)
d) Votes Vote
minority doctors and Belluscio Knight:
► freedom of expression guaranteed for the arts. 14 and 32 of the Constitution and by art. 13 of the American Convention on Human Rights includes the right to give and receive information, especially on matters pertaining to public policy or have relevance to the general interest. ►
The said right to free expression and information is not all about the responsibilities that the legislature can determine the root of the abuses caused by exercise, either by the commission of criminal or civil wrongdoing. ►
The principle of freedom of thought and the press, excluding the exercise of restrictive censorship, but in no way relieved of responsibility for abuse and the criminal responsibility incurred by this means, that is, through publications in which the printed word does not stop on the legitimate use of that right, incurring excess defined as laws contrary to it referred to the principle of freedom, order and social interest.
► The true essence of this law lies primarily in the recognition that all men have the power to publish their ideas through the press without prior censorship, that is, without the prior written authority control over what is going to say . ►
protection area of \u200b\u200bpersonal privacy protected by the common law does not affect freedom of expression guaranteed by the Constitution, nor yield to the primacy of this, especially when the art. 1071 bis of the Code. Civil law is the result of another inscribed in the constitution itself, also for the existence of a free society, right to privacy, enshrined in art. 19 of the Constitution, as well as art. 11, incs. 2 and 3, the aforementioned Pact of San José de Costa Rica, according to which no one can be subjected to arbitrary or abusive interference in their private life, his family, his home or correspondence, nor to unlawful attacks on his honor or reputation, and everyone is entitled to the protection of the law against such interference or attacks. ►
can not be admitted by the defendant's claim that the public interest in information regarding a prominent public man justified the invasion of their sphere of privacy. ►
famous people, men public have, as every inhabitant, the constitutional protection for privacy. ►
existing public interest in information about the health of Dr. Ricardo Balbin in his last illness, did not require or justify an invasion of privacy more sacred sphere. Vote
doctor
Petracchi:
► Press freedom must be comprehensive, not to recognize obstacles, on the assumption that the brakes and the prohibition act in the negative. Therefore, whatever causes the impression that the news-or if the picture-while she did not enclose a clear illegality, should seek to preserve the constitutional principle of freedom press, a fundamental pillar of the republic. ►
freedom of expression enshrined in the arts. 14 and 32 of the Constitution is not absolute and unlimited, or is exempt from responsibility. ►
full sense of the guarantees relating to freedom of expression contained in the arts. 14 and 32 of the Constitution must be understood beyond the bare literalness of the words used in these texts, which correspond to the historical circumstances in which they were punished.
► When the creators of this nation first established freedom of the press by the Regulation issued by the Superior Board, called the Big Board, on April 20, 1811 judged that "... the right of individual citizens to post their thoughts and political ideas, not only brake the arbitrariness of the rulers, but also a means of illustrating to the nation at large and the only way to arrive at knowledge of true public opinion ...".
The concern then was to lay the foundations of the republican regime, whose existence is necessary for the free discussion of public issues. ►
Pact of San José de Costa Rica, its clauses are of the hierarchy of the supreme law of the Nation, including art. 13, inc. 1, according to which "Everyone has right to freedom of thought and expression. This right shall include freedom to seek, receive and impart information and ideas through any media regardless of frontiers, either orally, in writing or art, or any other media of his choice. "This will
deliberately incorporated into national Argentine positive the right to inform and be informed.
► As a result of the foregoing, freedom of expression guaranteed by arts. 14 and 32 of the Constitution and by art. 13 of the Convention American Human Rights includes the right to give and receive information, especially on matters pertaining to public affairs or have relevance to the general interest. ►
Freedom of speech is not absolute and all rights and freedoms, subject to reasonable regulation
and should coexist harmoniously with the other rights that make up the legal system and support, of course, the weighted exercise of police power based on the need to preserve the morals, good customs, public order and security.
► If the privacy protection in the area had no other rank than a private interest worthy of protection provided with the common law, could then get to attend reason the appellant, who bases his right on the rule of freedom of expression. ►
material protection of privacy level is therefore one of the greatest values \u200b\u200bof respect for dignity and a distinguishing feature between the rule of law, democratic and authoritarian and totalitarian political forms.
► As part of the scheme of "ordered liberty" that shapes the internal structure, and bone marrow of the Constitution, and holds all its elements, is the general right to insurance-even in the material-of an exclusion zone reserved only for each person and penetrable only by their free will. Such exclusion not only imposes a limit on state power, but also to the action of individuals, especially when they are part of groups that in the present stage of development of the media, have become factors that have a social power considerable, to which it can not be left defenseless individuals. ►
Constitutional recognition of the right to privacy is also supported by the existing Pact of San José de Costa Rica, whose art. 11, incs. 2 and 3, states that: "2. No one can be subjected to arbitrary or abusive interference in their private life, his family, his home or correspondence, nor to unlawful attacks on his honor or reputation. "3. Everyone is entitled to the protection of the law against such interference or attacks. "
► The claim of the defendant, in the sense that the public interest in information regarding a prominent public man justified the invasion of their sphere intimacy, is in the light of the findings made in excess of liberalism distasteful.
► The celebrities, public figures have, therefore, as every inhabitant, the constitutional protection for privacy.
► As rightly judge a quo, the existing public interest in information about the state of Dr. Ricardo Balbin health in his last illness did not require or justify an invasion of privacy more sacred area, as occurred with the publication of revelations "so intimate and so inexcusable in view of the position of the victim as to offend the notions of decency community "
► The brutality of photography ignoble origin of this conspires against liability litigation, correctness, decorum, and other estimable potential of information work, and freedom has been taken to publish the defendant has exceeded he defends, which is not protected by the Constitution and that judges are obliged to uphold. ►
That, on merit grounds, it is concluded that the prominent place that certainly has the republican regime of freedom of expression "comprehensive information-requires particular caution in the case of assigning responsibility for its exercise. But this does not mean denial of the right to privacy also a member of the scheme of ordered liberty promised by the Constitution through actions that invade the stronghold individual, especially when it occurs in a manner inconsistent with basic feelings of decency and decorum.
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