Access to Public Information, Content Regulation / Censorship, Press Freedom, Privacy, Data Protection and Retention, Surveillance
Sarney v. O Estado de São Paulo
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Mr. Jorge Fontevecchia and Mr. Hector D’Amico, the director and editor of a magazine, respectively, were held civilly liable over a series of publications. The published information concerned the unrecognized son of the then president of Argentina, Carlos Saul Menem, with a congresswoman, Menem’s relationship with the congresswoman and the relationship between the president with his son. The Supreme Court of Argentina held the publication of these articles violated the president’s right to a private life. The Inter-American Court heard the case and considered the information published was already part of the public domain and that, in any event, publishing this information was of public interest. As a result, the Inter-American Court considered the subsequent imposition of liability on the editor and publisher did not meet the necessity requirement and infringed the right to freedom of expression.
The Argentinian magazine Noticias (News), published a series of pieces on the then president of Argentina, Carlos Saul Menem. Among others topics, the notes referred to: i) the existence of an unacknowledged son of the then president with a congresswoman; ii) the provision of large sums of money and expensive gifts by the President to the congresswoman and his son; iii) various meetings between the President, the boy and his mother in the Casa de Gobierno, the office and residence of the president; iv) alleged death threats against the president’s son and the subsequent contacts between the presidents of Argentina and Paraguay to secure asylum for the child and his mother in Paraguay. These publications were accompanied by photographs that showed Mr. Menem, the congresswoman and their son. In the photographs, the child’s image was distorted and he could not be recognized .
The publication of these articles caused Mr. Menem to file a civil lawsuit against the publishing house and Jorge Fontevecchia and Hector D’Amico, the director and editor of the magazine Noticias, for violation of his right to privacy. Mr. Menem claimed the sum of one and a half million Argentinian pesos for moral damages. The final judgment of the Supreme Court sentenced the defendants to payment of sixty thousand Argentinian pesos.
The Inter-American Court heard the case and considered the information that was published was already part of the public domain and, furthermore, carried public interest. Consequently, it considered the subsequent liability measures imposed on the editor and publisher did not meet the necessity requirement and violated the right to freedom of expression enshrined in Article 13 of the American Convention.
The Court had to determine whether Argentinian society had the right to know and, therefore, the journalists had the right to publish information on the existence of an unrecognized child of the President of the Republic, and information regarding the relationship between the president and the child and his mother, the alleged use of public funds for personal purposes, the provision of large sums and expensive gifts from the president, or if the president of Argentina had the right to keep all of this secret .
Additionally, the Court had to determine the criteria for resolving the tension between the right to privacy and the right to freedom of expression.
The Court reiterated that freedom of expression, as protected under Article 13 of the American Convention on Human Rights (ACHR), includes the right to seek and impart all kind of information and ideas, as well as the right to receive and know the views and ideas of others. It recalled that freedom of expression is not an absolute right and that, according to Article 13.2 of the ACHR, whoever abuses this right may be subject to a subsequent imposition of liability. In this regard, the Court stated that restrictions on freedom of expression must be exceptional and “in no way should restrict, beyond what is strictly necessary, the full exercise of freedom of thought and expression or become either a direct or indirect mechanism of prior censorship” [para. 43].
The Court further added, as a result of its essential role in a democratic society, the media should reflect diverse opinions. Indeed, the Court stated the media is a fundamental mechanism for exercising freedom of expression, and, therefore, it should carry out its social role with responsibility. The Court recalled that the first time it referred to the right to free expression, in the Advisory Opinion on La colegiación obligatoria de periodistas, it stated, “the profession of journalism […] involves, precisely, the seeking, receiving and imparting of information. The practice of journalism consequently requires a person to engage in activities that define or embrace the freedom of expression which the Convention guarantees.” It reiterated that, in contrast to other professions, the ACHR explicitly protects journalism activities and that it “cannot be differentiated from freedom of expression. On the contrary, both are obviously intertwined, for the professional journalist is not, nor can be, anything but someone who has decided to exercise freedom of expression in a continuous, regular, and paid manner” [para. 45].
The Court recalled that Article 11 of the American Convention recognizes that everyone has, among other rights, the right to privacy. This article also prohibits abusive intrusions in several spheres, such as, the private life of families and their places of residence. The Court noted that “[t]he scope of privacy is characterized as being free and immune to invasions or abusive or arbitrary attacks by third parties or public authority and may include, among other dimensions, the freedom to make decisions related to various areas of a person’s life, a peaceful personal space, the option of reserving certain aspects of private life, and control of the dissemination of personal information to the public.” [para. 48].
Thus, the Court indicated there are two relevant criteria to be taken into account when potentially private information is disseminated: “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” [para. 59].
The different protection threshold that applies to public officials originates in the voluntary nature of their exposure to social scrutiny. This implies that there is a higher likelihood of injury regarding a public official’s right to privacy. Regarding the public interest criterion, the Court declared it has “reaffirmed the protection of freedom of expression of opinions or information on matters in which society has a legitimate interest of being informed, to know what affects the functioning of the State, or to know what affects general rights or interests or entails major consequences.” [para. 61]. In this sense, the Court indicated the judiciary should take into account the context in which the public interest expression is disseminated. Therefore, the judge should “assess respect for the rights or reputations of others with the value these have in the open debate of democratic society on issues of public interest or concern.” [para. 66]
The Court further added that fundamental rights, whether freedom of expression or the protection of privacy, should be exercised in a way that is respectful of other human rights. Therefore, any measure to protect rights that might be injured by the abusive exercise of freedom of expression, should adhere to the limits specifically set by the ACHR. In effect, measures that sanction freedom of expression abuses by imposing subsequent civil liability must meet the requirements of being provided for by law, pursuing a legitimate purpose and being suitable, necessary and proportionate .
Regarding the case under review, the Court stated that the right to privacy (the right that had been violated by journalists D’Amico and Fontevecchia according to the Argentinian courts) had been provided for by the Civil Code. Additionally, the Court indicated the generic manner in which the civil provisions had been drafted did not negate the fact that they were legal regulations both in a material and formal sense. With respect to the purpose of the measure, the Court declared that the protection of private life is a legitimate purpose under the ACHR. Finally, it considered that civil proceedings were suitable for protecting the right to privacy.
Regarding the necessity requirement, the Court considered that the public official in this case held the highest elected office in his country, which, in turn, involves a higher degree of social scrutiny “not only regarding his official activities or the exercise of official functions, but also regarding aspects that, in principle, could be linked to his private life but revealed matters of public interest” [para. 60]. For the Court the information and photographs published by the magazine Noticias were of public interest and their publication was consistent with the political control that was being exercised over the facts that were being denounced. Furthermore, the Court indicated that at the time the magazine articles were published, the allegations had already been publicly circulated by other Argentinian and foreign media outlets.
Consequently, the Court declared that the State of Argentina was internationally liable for the violation of the right to freedom of expression of Mr. Fontevecchia and Mr. D’Amico.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This is the first case in which the Court addresses the scope of the right to privacy with respect to the private lives of the highest ranking public officials. It establishes the criteria that should be taken into account when resolving the tension that may arise out of the dissemination of public interest information involving the private lives of public officials (that is: the tension between a public official’s right to privacy and the right to freedom of expression).
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