developed the various areas of protection of private life, noting that although the
American Convention recognizes this right to every person, its level of protection
decreases as with the importance that a person’s activities and functions may have for
a debate of general interest in a democratic society. It noted that to resolve the
conflict between the right to a private life of a public official and the right to freedom of
expression, in the first place, it is necessary to verify whether or not there really was
damage to the right allegedly affected. This damage is not present in those cases in
which the information disseminated is already in the public domain or if the person
gave tacit or explicit permission to publish this information, since in these cases there
is no legitimate expectation of privacy. Second, any claim for alleged violation of
privacy should compel the judge to consider the information allegedly disclosed in the
context in which it occurred. Third, the decisive factor in resolving this conflict is the
public relevance of the information. In this regard, relevant information is public when:
a) in any way, despite having a component that involves private life, it is information
that has to do with the functions that person carries out, b) it refers to the
noncompliance of citizen’s legal obligation, c) it is important information regarding
trust in an official; and d) it refers to the competence and capabilities of an official to
perform his or her duties.
18.
In this case, the Commission held that the restriction of the right to freedom of
expression was based in the law, specifically in Articles 19 of the National Constitution
of Argentina and Article 1071 bis of the Civil Code of Argentina. Moreover, the
restriction heeded to the purpose allowed by Article 13(2) of the American Convention,
which is the protection of respect for the rights or reputations of others, given that
judicial decisions analyzed, sought to protect the right to private life of former
President Menem. However, the sanction imposed on the alleged victims was
unnecessary, since the journalists were sentenced to indemnify the President for
publishing information that was already in the public domain and that was of public
interest as it involved: a) the possible use of State power for private means on behalf
of the President of the Nation; b) the possible unjust enrichment of a State
representative; c) the possible existence of death threats against the President’s child,
and d) the noncompliance with the legal obligation of the former president to recognize
the child, an act that is not freely chosen by a parent.
19.
Moreover, the Commission held that, according to the information contained in
the magazines, from that provided in the international proceeding and from viewing
the images, it is evident that the five photographs that illustrate the journalistic
question at hand were taken with the consent or knowledge of he who is said to be the
aggrieved party and therefore did not require express prior authorization to be
published. It would be unreasonable to argue that the media must seek the consent of
the President in order to distribute his I mage when taken under the circumstances
such as in this case. Involving the President of the Nation, popularly elected public
official, who occupies the highest ranking executive position in direction of a country
cannot, does not imply an expectation of protection regarding all the events that occur
in the forum of social relations or in those that evolve in public contexts or that may be
observed by others, despite not being of a public nature or no interest in being
disclosed. Taking into account the context in which the photographs were taken, the
contents thereof, and the public persona to which the images make reference, the
Commission considered that the publication of the images did not constitute an
arbitrary interference with the right to private life of Mr. Menem.
20.
Finally, the Commission indicated that the civil sanction had a noticeable effect
on the alleged victims’ right to freedom of expression. The judicial sentence had the
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