The case of Fontevacchia and D'Amico vs. Argentina was decided by the Inter-American Court of Human Rights on November 29th, 2011.

Why is the case important?

Within the Inter-American system, the case is relevant for defining the contours of freedom of press, because the court has extensively deliberated on the requirements a restriction of the freedom of press has to meet, and how the right to freedom of press and privacy have to be balanced.

Principle facts of the case. Mr. Fontevacchia and Mr. D'Amico, director and editor of the Argentine magazine Noticias, published two articles in their magazine in 1995.

They claimed that the president had an legitimate son with a national representative, that the president had given her gifts of high value, had invited the representative and their child to both the government house and the president's summer residence, and that it was possible that the former president would recognize paternity of the child once his divorce was finalized.

They also showed pictures of the president, the representative and the child.

Due to the content of the articles, the president took under his own right civil legal action against both the newspaper and Mr. Fontevacchia and Mr. D'Amico, claiming they had to pay him reparations for alleged moral damages caused by violations of his privacy, amounting to 1,500,000 pesos.

After trials, he was finally awarded with 60,000 pesos by the Supreme Court.

The Inter-American Court of Human Rights ruled that the civil sentence against the co-defendants was unlawful, as it unjustly restricted their freedom of expression.

The court's finding.

In its decision, the court established that the freedom of expression as enshrined in Article 13 of the American Convention on Human Rights does not only encompass the right to seek information, but also to be informed about ideas and information disseminated by others.

It is not an absolute right, as Article 13 Parat 2 of the American Convention provides for the possibility to place restrictions on the freedom of expression by imposing subsequent liability for abuse of the right.

However, this shall not restrict full exercise of freedom of expression or become a direct or indirect mechanism of prior censorship.

The court opined that media plays an essential role as vehicles for the exercise of the social dimension of the freedom of expression in a democratic society.

Hence, as journalists must discharge their social function responsibly, it is vital that the media is able to gather the most diverse information and opinions.

Consequently, a state does not only have to minimize restrictions on the dissemination of information, but also foster informative pluralism.

The court explicitly stated that a professional journalist is someone who has decided to exercise freedom of expression in a continuous, regular, and paid manner.

The court concluded that the private lives of public officials, as of everybody else, are protected by Article 11 of the American Convention.

However, in a democratic society, they are exposed to higher scrutiny and criticism of the public, since they have voluntarily exposed themselves to such, and there is a public interest inherent to their actions performed.

Considering the foregoing, the court found it necessary to strike a balance between the right to privacy and the freedom of expression,

and therefore reviewed whether the civil penalty imposed met the requirements of the American Convention, that it was provided for in the law, pursued a legitimate aim, and was appropriate, necessary, and proportionate.

In this case, the court found that the civil proceedings were unnecessary.

The content published covered matters of public interest regarding the elected official holding the highest public office.

Additionally, the information had already been published and entered the public domain without the president making efforts to prevent this at the time.

On contrast, his own office of the presidency of the nation provided the published pictures.

The court therefore found the articles not to interfere with Mr. Menem's right under Article 11, but considered the civil judgment to violate Article 13.

The judgment of the Inter-American Court points out that within the freedom of expression, it is important that a journalist can work freely and without censorship.

The court found that a person of public interest needs to accept a higher degree of scrutiny by the public.

In such a case, the freedom of expression outweighs the right to privacy.