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.
69.
Additionally, the Court considers it relevant to address the circumstances of
how the photographs were obtained. In this regard, the State did not object to this
Court that which was affirmed by the Commission and representatives regarding the
fact that the photographs were taken with consent of the President (supra paras 19
and 24), nor that affirmed by Mr. D’Amico in the public hearing held in this case, in the
sense that they had not been taken by photographers of the magazine but rather were
delivered to Noticias by the Office of the Presidency of the Nation. 57 Based on the
foregoing, the Court does not find, in this case, an element that indicates that the
photographs in question were taken in a climate of harassment or persecution of Mr.
Menem or that would have generated a strong sense of intrusion, such as entering a
restricted physical space or through the use of technological means that enable remote
imaging that could have been taken surreptitiously.
70.
Moreover, while the Argentina Supreme Court based its decision in that the
images "(were) not authorized by the President in time and in the context in which
they were used by the media outlet," this Court considers that not all publication of
images requires the consent of the person portrayed. This becomes even clearer when
the images relate to one who sits in the highest executive position of a country, since
it would be unreasonable to require that the media obtain explicit consent each time it
intends to publish an image of a President of the Nation. Therefore, in this particular
case, the mere absence of Mr. Menem's consent does not transform the images
published into a violation of his privacy.
*
71.
This Court considers that the publications carried out by the magazine Noticias
regarding the elected pubic official of the highest ranking position in the country
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 contributed to protect the
information that he later contests. Thus, there was not an arbitrary interference with
the right to private life of Mr. Menem. Thus the measure of further liability imposed,
which excluded any assessment in the case of aspects of public interest of the
information, was unnecessary in relation to the alleged purpose of protecting the right
to private life.
72.
Therefore, the Inter-American Court finds that the civil proceedings in the
Argentine justice system, the imposition civil liability for infringement of a fundamental
right, the imposition of economic damages plus costs and expenses, as well as the
order to publish an excerpt from the judgment and the repossession imposed against
one of the journalists affected the right to freedom of expression of Mr. Fontevecchia
and Mr. D'Amico.
73.
Mr. Fontevecchia put into context this affectation upon recalling that the former
"President, his family, his relatives, his secretaries, [and] his ministers had […]
accumulated complaints with very high numbers,” in nineteen civil and criminal suits
initiated against the magazine Noticias. The accumulation of civil cases generated a
detriment that placed the company in possible dissolution because it generated
57
Statement of Mr. Héctor D’Amico, supra note 16.
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