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could only surmise. If, in other times, “possession” by fantastic powers was feared, today,
a “modern” version is practiced which has nothing to do with fantasy; by ever more
complex, penetrating and invasive means. This desecrates the “inviolable sanctuary” of
the individual, dissolves intimacy, opens up the reserved zone to the eyes and ears of the
world; in brief, influences the entire course of existence. The individual, who is exposed,
weakened, by the undue visibility, robbed of autonomy, is placed at the mercy of the
observer. In sum, the all-seeing mechanism is updated – “big brother is watching you” –
the probing, all-embracing look, respects no frontiers. The observers look, listen, inquire,
invade and, finally, dictate. If free rein were to be given to the interferences associated
with the development of technology, it would be a “fatality” derived from progress, not a
benefit subject to regulation and control.
6.
We reject the furtiveness with which the tyrant hides his intolerable arbitrariness.
We condemn the secrecy that shrouds the symbols of authoritarianism. We censure
opacity in the exercise of public authority. We demand – and we are achieving, step by
step, based on the argument of human rights – transparency in the acts of Government
and in the conduct of those who govern us. All well and good; but, beside this legitimate
clarity another type of surveillance lies in wait and advances: this one does not throw light
on the conduct of those who govern, but invades the intimacy of those who are governed,
through the actions of the former who, in this way, extend their arbitrary powers and
annul or dissuade, without violence or upheaval, the exercise of the freedoms.
7.
Hence, there is a right to privacy, to intimacy, to the inviolability or integrity of that
reserved zone– the deepest and the most secret - in an individual’s existence. It is not
merely a matter of protecting the good reputation, the prestige, the honor, the social
acceptability of the individual. The right to intimacy – privacy, in the best term – exists
with absolute independence of fame, or the social or public position of the individual who
has and enjoys it. It is a right in itself, above and beyond the harm caused by the
intruder, deliberately or not, to the enjoyment and exercise of other rights, affected by
unlawful surveillance or undue revelations.
8.
Obviously, these invasions can generate harmful consequences or even involve
serious danger to the enjoyment and exercise of other rights. In this case, the harm would
be two-fold, as can be seen in the Case of Escher et al., which underscores the violation of
the right to intimacy, on the one hand, and its consequence – also a violation – on the
right to free and lawful association. Moreover, the unlawful dissemination of the contents
of communications increases the violation, extends the damage to private life, and annuls
intimacy.
9.
It has been rightly said that individual rights are not absolute. They can be
restricted, limited, their exercise conditioned in function of higher-ranking rights and
requirements: for example, the rights of others or the common good. However, this
frontier of the individual rights only cedes under the justifying and regulating control of
certain principles, precisely those that the Inter-American Court has explored, with
particular care, when they refer to legitimate restrictions to the right to freedom, for
example, through precautionary measures: legality, necessity (and even, inevitability; the
means used must be the only one possible), appropriateness, proportionality, timeliness.
No restriction is admissible when these principles are not respected. It must be shown
that the public authority has considered the application of each of them in the specific
case and that the restriction has passed this test of legitimacy.
10.
In the judgment in the Case of Escher et al., the Inter-American Court examined
the issue of telephone interceptions on the basis – real or apparent – of a criminal
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