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Personality rights in Argentina- an Introduction
The protection of privacy is included in article 19 of the National Constitution and various international treaties in which Argentina took part, for instance art. 12 of the 1948 Universal Declaration of Human Rights or art. 5 of the 1948 Bogotá Declaration. The most significant legislation is however the American Convention of Human Rights -rather called Agreement of San José de Costa Rica- as it was ratified by Argentina in the 23.054 Act; therefore conferring it another indirect constitutional level of protection. Article 11.2 of the Agreement provides: “nobody can be the object of abusive and arbitrary interferences into her private life, that of her family, into her domicile or correspondence, neither of illegal attacks on her honour or reputation”.
Other Latin-American countries have already enacted a higher separate protection of right to the image: - The new Constitution of the Federal Republic of Brazil allows damages for material and moral damage to the image (art. 5, V, in fine) - The Code of the Republic of Peru recognizes a right on the image and the voice and provides that an express authorisation is necessary (art. 15) Argentina does not have such elaborate protection at this constitutional level.
* Doctrina, very influential in the systems of countries of Spanish tradition, therefore gave the incentive to such protection. In 1986, Dr. Jorge Bustamante Alsina in a speech delivered at the National Academy of Right and Social Sciences of Buenos Aires defined the right to the image as the faculty of each person to dispose exclusively of her own, against publication of her picture by the modern massive means of communication, like press or television, including cinema. * Legislation: The general framework of the protection of personality rights was enacted in the 11.723 Act (Ley 11.723). Article 31 protects the right to the image, especially against reproduction for commercial purposes. Article 1071 bis prohibits arbitrary intrusion in private life, unless authorised by a legal obligation or when the intrusion is for the aim of good administration of justice, protection of public peace and order, or consented to. * Case-law: The utilisation of both articles lead the Court to regulate unauthorised reproduction of someone’s characteristics (see Medina de Bruschi, 1987) and to conclude that arbitrary publication of portraits is sufficient to generate responsibility, without the need for any other consideration of defendant’s fault or intention. (See Ortiz, 2004). This is so because the violation of the right to image is seen as an attack of the dignity of the person as it amounts to an instrumentalisation of it, reducing it as an object: therefore this will be reflected by compensation and a sphere of protection of the “spiritual integrity”. (For doctrina: Zavala de Gonzàlez, Daños a la imagen personal, in La responsabilidad…Homenaje al Prof Goldenberg, Abeledo Perrot, 1995. For cases examples, see Ortiz). In the 90’s, the Appeal Court of Buenos Aires stated that the right to the image was an autonomous right and could be actionable independently from a claim for violation of honour or privacy. The Supreme Court followed this statement (see Vanucci, 2000)
Consent is essential and interpreted narrowly. It cannot be deducted by conduct or be given implicitly. It must be expressed and repeated for each publication or utilisation. Consent is an exception to the general rule, so it must be shown by the party who alleges it. (See Ortiz, 2004). There is however no required form of proof. When there is no consent, whether the fact that the person is not identifiable provides a valid defence is still discusses in the doctrina –outside the exceptions mentioned above in article 31- (See for instance Delia M. Ferreira Rubio, El derecho a la intimidad, Ed. Universidad, 1982)
The right has some limits. Article 31 allows publication when it is related to scientific, teaching or in general cultural purposes, interpreted broadly. A major doctrina is nonetheless of the opinion that even for illustration of books and medical reviews, all necessary means must be undertaken to prevent the identification of the subject. (See for instance the works of Julio César Rivera) Similarly, the wording of article 31 “put into commerce” is interpreted broadly as well, not only for trade as such, but also for exhibitions, diffusion or publications of diverse final aims. (See Ortiz, 2004. For doctrina, see the works of Zabala de Gonzàlez) In a famous statement, the Supreme Court interpreted from the preliminary works of the law that “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” (J.A. 1989-I-89) or a superior good. The presence of an overriding interest will depend on the facts of every case. Freedom of the press is obviously often at stake.
Freedom of expression is protected at Constitutional level, in the articles 14 and 32 of the National Constitution, and again by the San José de Costa Rica Agreement. This privileged level of protection therefore makes the conflicting cases with privacy particularly difficult to consider: what should be prevailing? Argentina doctrine is of course highly divided and some authors even proposed to establish a hierarchy of fundamental rights. The Court however made it clear that abstract rules could not be established and that solutions will be found depending on the concrete situation of the case. Two exceptions can however be mentioned : - Even though in theory, protection is awarded equally to every one, the leading case of Ponzetti de Balbin created a lesser threshold in situations involving celebrities or public figures. When such people are actually seeking attention so that they provoke the intrusion into their private life, they cannot complain for such intrusion afterwards, when it is linked to the sphere for which they are known. However, the judges are cautious so that this case-law is not too easily used as a defence by any party. (see for example Vago, 1991) - The Ortiz case made it clear that the protection of children will always prevail over freedom of the press. Argentina - Categories* Right of privacy:
* What is a “public figure”? Consequences :
* Right to the image:
* Personality rights and Freedom of the press:
* Special protection for children:
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