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Name: Vago, Jorge vs Ediciones La Urraca S.A. and others Country: Argentina Key words: public figure, privacy Citation: CS nov. 19-991 Court: Supreme Court of Buenos Aires. Judges: Señores Doctores Carlos S. Fayt., Enrique S. Petracchi, Rodolfo C. Barra, Julio S. Nazareno, Eduardo Moliné O’Connor, Antonio Boggiano. Date: 19.11.1991 Importance: Ponzetti de Balbin decision re-read, Supreme Court definition of a public figure. Facts: The plaintiff is the editor of the magazine “Confidential Press” which often embarks upon criticism of the government. He has always been expressing his controversial opinions in the magazine and was even arrested in 1985. La Urraca published an article about him that was announced on the cover: “The journalist of Buenos Aires”, that he found defamatory and violating his privacy. He lost both on trial and appeal, inter alia because the judges considered that he was a “public figure”. This is one of the grounds for appealing to the Supreme Court for moral damages. Decision and Reasoning: NB: Only the elements relevant to personality will be analysed, this does not reflect the entirety of the case.
The Appeal Court based its statement that the plaintiff was a public figure on two things: first, because he was the director of the weekly newspaper “Confidential Press” known to most people. Secondly, because he had been widely seen throughout his professional career, in numerous political controversies which have a public interest.
* Not a public figure: The plaintiff maintains that he is not a public figure because being the director of a magazine is not sufficient to make his personality widely famous, like a true celebrity would be, so that he is not “someone everybody is talking about”. On the contrary, he maintains that he is only known for the expression of his political opinions, which is a mere fundamental right that any one else possesses. He even argues that it is because of a governmental plot –his arrest- that the court considers today him as a public figure. * The Ponzetti de Balbin precedent: In the event that he has to be considered as a public figure, he then refers to the leading case for such situation. He then argues that the lesser threshold for privacy to people whose life has a public interest only applies when the intrusion is related to the professional activity or more generally the activity for which the person is famous whereas the article referred to his private life. He then adds that even this case law does not allow media to damage the public image or reputation of somebody.
The judges avoided to answer directly this aspect of the appeal. He just mentioned (§7) that the only importance of the Ponzetti case was that the right to express his ideas consisted of being free to say anything about anyone without being controlled by the authorities, but did not amount to total impunity or being allowed to write anything without thereafter facing the consequences if the text is in effect defamatory or more generally used to cause damage, intentionally or recklessly. If this interpretation is to be repeated in future cases, this will reduce considerably the original judgement of Ponzetti de Balbin and ignore an important part of the decision.
Firstly, they established a distinction between a “public figure” and “somebody notorious”. Even if a person is not the former, he can still be the latter, so long as he has a certain degree of influence. It seems that whether someone is notorious is merely a question of fact, which then will never be considered by a Supreme Court, whereas whether someone is a public figure is a question of law, so admissible to be judged in by the Supreme Court. For the present case, they defined a public figure as “somebody previously involved in situations that present a public interest” and for this reason considered Vago as such (§4). Secondly, they rejected the analogy with the Ponzetti case, simply stating that the facts are dissimilar.
They considered first that the fame of the plaintiff was understandable as the events in which he is known to take part had been widely reported in the country at the time. They therefore stated that the arguments submitted in the appeal were simply factitious. Those three judges’ opinions give a truncated reading of the Ponzetti case and the definition of a public figure, maybe in order to dismiss the claim. Therefore, if one has to interpret or re-use the Vago case, one should be careful and subsequent case-law will be welcomed to clarify this point of Argentinean law. Result Appeal dismissed. Name: Vanucci, Daniel vs Emisions Platenses S.A. Country : Argentina Key words: right to the image Case Number: C 68.541 Court: Supreme Court of Buenos Aires. Judges: Senores Doctores de Làzzari, Pettigiani, Pisano, Hitters and Salas. Date: 29.11.2000 Importance: the right to the image is an autonomous right. Facts: The magazine “Hoy” published an article about hackers and IT piracy. It was illustrated with a portrait of the plaintiff. He sued the Magazine for violation of his honour and right to his image. The Appeal Court allowed damages. An appeal to the Supreme Court was made on the ground that the law was misapplied but it was refused. However, for other procedure reasons, the Supreme Court was asked to rule whether such refusal was legally based. Decision and Reasoning: The Señor Doctor de Làzzari gave the Court ruling that the appeal had to be refused.
The first ground for refusing the appeal was based on the fact that the grounds for appeal were considered by the Court as “absurd” (§2) and would not deserve a debate. Therefore, the mere publication of a picture implies other facts:
The case involved considerations of intimacy (article 1071 CC) but also of right to the image (article 31 of 11.723 Act). The Court then clearly stated that the protection of the right to the image is independent from that of intimacy or honour and the respective claims must be considered separately. Every person has upon her image a right exclusive which extends to its utilisation, so that she can oppose to any unauthorized diffusion. It then referred to an earlier statement of the Court (J.A. 1989-I-89) that in relation to article 31, the legislator has prohibited the reproduction of the image according to the equivalent right, which would only be overruled in given circumstances that show a general interest which then advises to make them prevail over this right. In the absence of overriding interest and“As the foundation of this statement remains unharmed, the appeal must be refused”. Name: Ortiz, Miguel Angel y otra vs. La Gaceta S.A. s/ daños y perjuicios Country : Argentina Key words : picture of a minor, right to the image, no consent, objective responsibility Case Number: 4245-0948 Court: Supreme Court of Tucuman. Judges: Señores Doctores Alberto José Brito, Héctor Eduardo Aréa Maidana, President: Señor Doctor Antonio Gandur Date: 18.02.04 Importance: Responsibility for unconsented publication is objective, i.e the intention to harm is not required and the fact that the picture is published without permission is enough. Protection of the image will prevail over freedom of the press when commercial interests are at stake. Facts: The magazine La Gaceta illustrated an article in its Sunday supplement with the picture of a minor smoking in front of the central doors of the University of Tucuman with the legend “defenceless before university or work”. The minor’s parents who had not consented to the taking of the picture nor to its publication issued a claim for damages. The first instance did not allow the claim but the Appeal Court awarded damages. The magazine referred to the Supreme Court. Decision and Reasoning: The unanimous judgement of the Court was delivered by Senor Doctor Alberto José Brito: I. Means of information: what type of responsibility? 1. The main concern was about which category of responsibility to focus on for cases about what the Court calls “means of information”. * Contractual responsibility: The magazine, following what the first instance judge decided, argued that the case was about contractual responsibility. If that was so, then the rules of art. 1109 CC would apply and the basics of contract law to find responsibility according to subjective responsibility- like dishonest intention or fault- would need to be proven. However, the Supreme Court, without discussing whether or not a proper contract could be found in this case, affirmed the Appeal Court judgement and rejected this hypothesis. * Extra-contractual responsibility: The Appeal Court rejected that the case would fall into the extra-contractual category because the protection of the image was a situation of violation of right to intimacy, which according to art. 1109 bis CC is a special regime. The Supreme Court implicitly approved this choice: from non contractual, it positioned directly the debate into the “special regimes” category. * Special regimes: The Court then stated that the right to the image was enshrined in the law 11.723. Because article 31 expressly stated that the portrait of someone cannot be put into commerce without this person’s consent, then the mere act of publication, when without justifying cause, is an “undue act which, as such, generates responsibility”. 2. Consequences: The Court therefore confirmed that it is an objective type of responsibility. Although the Court did not do so by making any analogy with the objective regime of protection of privacy under article 1071 bis CC, it however took the chance to disapprove a part of the Argentinian doctrine under which, including personality rights and especially right to the image within the ambit of article 1071 bis could amount to an “abuse of right” by not requiring proof of fault or bad faith from the defendant. As for the right of privacy, there is violation as soon as the act is arbitrary which the Court said is the case every time an image is published without consent. Therefore, one may be tempted to conclude that every time there is violation of right to the image, there is automatically violation of privacy. II. Right to the image 1. Definition Firstly, the Court affirmed that personality rights formed part of the protection of “spiritual integrity”. But Argentinian Law distinguished between protection of honour and of image, eventhough to action them both “utilisation is objectively sufficient”. But it did not give criteria of distinction. The Court also characterised the right to the image as a “right as an emanation of the personality”. Form this statement, it followed that such right such be contained in the limits of the person’s will and private autonomy, like in particular identity via name and physical characteristics. Special attention must here be drawn to one of the attributes the Court recognized to the right to the image: it considered the right to be “personalisimo”. This is usually the case for fundamental or constitutionally protected rights. Although this statement does not confer constitutional protection to the right to the image as such, it gives it an extra set of attributes as personalisimo rights are usually: autonomous, vital, absolute and inherent to the person, which means non assignable and not definitely waivable . Subsequent cases on this point will therefore be welcomed to clarify to which extent this applies to personality right. This is especially interesting as the Court already recognized some limits to this right. 2. Limits * General rules: Some limits may however exist to this right. Surprisingly, they are not to be found in the law itself but were deducted from the general spirit of the preliminary drafts. Senor Doctor Alberto José Brito recalled an earlier statement of the Court (J.A. 1989-I-89) “from the exegesis of the 11.723 Act, it can be deducted that the legislator has prohibited the reproduction of the image according to the equivalent right, which would only be overruled on given circumstances that show a general interest which then advises to make them prevail over this right”. General interest was to be understood as a “collective superior good”. * Consequences as towards Consent: the judge therefore stated that, as such interest is the only limit to the right to the image, this was the reason why this right is otherwise actionable in any case as long as the consent has not been secured. Another consequence was drawn from this statement: burden of proof. Consent is only a defence and thus an exception to the rule of responsibility. Therefore instead of the plaintiff to show he did not consent, burden of proof lies upon the party who alleges consent to escape from a claim. * Photograph taken in a public place: A doctrine theory supports the view that when a picture is taken in a public place, then it is licit to use it to illustrate a point of public interest and in that case, consent is not necessary. Without rejecting this theory, the Court however considered that in the present situation it could not serve as a defence as the picture had been modified and put in a different context. III. Application to the case: two interesting situations
The next question is therefore whether freedom of the press is a prevailing collective interest. The Court acknowledged that this will depend on the facts of every different case, but according to article 31, such interest would generally be recognised in cases involving scientific, teaching or more generally cultural aims but certainly not when used for financial or commercial purposes. The defendant argued that their Sunday supplement article responded to the cultural aim requirements. However, the Court followed the Appeal Court reasoning: because consent is a defence and cannot be implicit, it is therefore strictly interpreted. To compensate this, a broader interpretation of other defence should be adopted. However, in their broader interpretations, both courts had to include “commercial purposes” in a broad sense too. The picture of the teenager was not only published without his consent but was also reproduced at higher scale and was on the cover of the Sunday supplement. Finally, it was also taken out of its original context to be juxtaposed to another for the needs of the article. Those elements were taken into account by the Court to conclude that more than cultural aim, the picture had been used mainly for commercial purposes. It therefore concluded that “this publication of the image of this teenager neither protects nor creates any superior good or is of general scientific or cultural interest”.
On the contrary, the Court recalled that the whole case was not only a protection of the image but more importantly of a minor’s image. Therefore, it referred to international treaties like inter alia the 1924 Geneva Convention of the Protection of Children, the 1959 Argentina Declacration of Children’s Rights. Article 3.1 of the Geneva Convention establishes that for all the means concerned, for all the children who address a claim in courts, an essential consideration must be made to the superior interest of the child, like the protection of his personal rights, which according to article 16 include privacy, honour and reputation. On this basis, the Court would refuse any superior interest that that of the plaintiff. Result: The Court upheld the Appeal Court decision. |
