BALANCING freedom of expression and the right to privacy is probably one of the most complicated tasks for Judges.

After all, newspapers can cause irreparable damage, and yet derive commercial benefit in doing so, when publishing stories on people.

At the same time, free press and particularly, serious investigative journalism, is absolutely necessary in any healthy democratic society.

Most probably as a result of decades of censorship under Franco, Spanish Courts have a tendency to favour freedom of information over the right to privacy in libel cases.

This is however not the case with sensationalist journalism, where a recent Supreme Court ruling – involving a model turned actress – has made it expensive to indulge in writing excessively intimate, salacious and insufficiently researched or insulting stories.

Let’s look at some recent popular cases:

  • Interviu magazine was ordered to pay actress Elsa Pataky for photographing her breasts when caught furtively in a remote beach in Mexico, in a photo shoot for Elle magazine (which happened to be taking the ‘official’ photos of her from behind). The Court ruled that although the person was deemed a high-profile public figure in a public place, they strongly rejected the supposed `public interest´ of the photographs.
  • Interviu magazine was again ordered to pay €120,000 to a magistrate of the Murcia Superior Court, later reduced to €30,000 by the Supreme Court, for not being neutral in exposing a case where the magistrate was accused of illegally obtaining EU grants for a rural estate owned by his family. Indeed, another Court had already cleared the magistrate of any wrongdoing. The Court argued that although running the story was in the interest of the public, the journalists had not corroborated the story with objective evidence
  •  Journalist Federico Jimenez Losantos was ordered to compensate a former Diario ABC manager with €100,000 (the claimants requested €600k) for naming him, in different radio shows, a variety of insults including a ‘moron’, a ‘liar’, a ‘traitor’ and ‘intellectual offal’. The Supreme court ruled that it was one thing is to give a personal opinion, however unfavourable, however a very different one to express gratuitous insults that can only be described as ‘degrading and insulting’, more so when completely detached from any relevant public information.

Freedom of information, opinion and expression on the one side, privacy and right to reputation on the other, are two sides of the same coin, each an essential prerequisite to the enjoyment of the other.

And it is the State, through the judiciary ultimately, who is responsible for finding a balance.


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