Spain. 'El Pais' reply to Silvio Berlusconi and Nicolo Ghedini: "Privacy & Premier" Share
Today at 16:48
Original article by Marc Carrillo (professor of Constitutional Law at the University Pompeu Fabrade) to 'El Pais' -
13 June 2009 - Berlusconi can hide behind the protection of privacy after publication of the photos in Sardinia? No. The pictures are relevant: is a public figure whose private life contradicts his political discourse
Privacy is that area of \u200b\u200bthe privacy of a person who is inaccessible to others, unless the consent does not allow it. Nevertheless, it is a right subject to limitations. In fact it can be sacrificed in favor of the right to communicate and receive information if it is in the public interest. Recent publicly denouncing allegations of abuse of power committed by the Italian Prime Minister Silvio Berlusconi, back to the fore the debate about the degree of privacy protection that a democratic society must ensure that those who, because of the representative office or profession exercised, occupy a prominent position in public life and, therefore, are subject to social judgments.
Especially if it's representatives with responsibilities in democratic institutions. That said, there should be no doubt that the celebrities, the subject of public notoriety, not therefore cease to be holders of the right to privacy. But it is also true that the limits to information (communicate matters that affect them) or to free expression (to express their views on the conduct) should be much more flexible in the case where reasons of public interest, both in terms of their behavior result, both for private actions that could have a public impact.
This is a condition sine qua non of an open society, that the jurisprudence of the European Court of Human Rights has stressed, saying that the right to disclose information on matters of public interest occupies a unique position in the constitutional system of fundamental rights, since a injury or an unjustified restriction of this right requires not only the limitation of the fundamental right of citizens to receive information, but also influences negatively on the establishment and maintenance of free public opinion, as an institution essential to the democratic system (Handyside v. Judgments Britain 7/XII/1976 and Lingens v. Austria, the 6/VII/1986). E questo vale anche per l’Italia.
Recentemente, la stampa italiana – nonostante gli impedimenti del Ministero di Giustizia – e quella internazionale, specialmente EL PAIS, hanno dato un’eco grafica ai sospetti di abuso di potere riguardanti il primo ministro Berlusconi. Questi abusi comprendono l’avere incoraggiato l’approvazione di leggi ad hoc affinché su dei voli ufficiali e, pertanto, con mezzi pubblici, possano viaggiare ospiti privati per attività ludiche, o l’aver promosso a incarichi di responsabilità, nelle liste elettorali del suo partito al Parlamento Europeo o nello stesso Consiglio dei Ministri, persone il cui unico merito politico è stata la bellezza, secondo quanto proudly declared by the premier.
Berlusconi, however, considered that the publication of photos taken on his estate in Sardinia, while making it unrecognizable images of the protagonists, attentive to the privacy of his guests and announced legal action against this newspaper. However, there are strong legal reasons, based on the public interest of information disseminated, which supports the view that the right to inform about these facts can not be restricted. Let's see.
The first is that it appears reasonable doubt the legitimacy enjoyed by the media to inform the prime minister makes use of some unusual laws, enacted by the objective to allow him to invite his friends to travel on official flights.
Especially when the purpose is to participate in media funded by public money; in play of a private nature. A law that allows to carry out objectively what is an abuse of power, sadly endorsed by Parliament, can not be an obstacle that can inform the press about it, even with graphic media and - yes - with care not to spread irrelevant details, such as the identity of the participants. That one of them he felt called to account - the former Czech Prime Minister Topolanek - is just his business.
What really is important is the fact that Berlusconi is in itself ostentation of luxury private funded in part with public money, protected by law for that purpose. And therefore the same law can not prevent people from being informed about these activities, because, if so, would be unconstitutional and would also be a consequence of one being derived from Article 21, paragraph 2 of the Constitution of the Republic, which states that "the press may not be subject to authorization or censorship. " It is obvious that in Italy, and in any democratic country, provide information on facts of this nature is a matter of a democratic public. Without that, conversely, we can accept the obvious manipulation of the right to privacy of its guests, as did the Italian prime minister.
The right to privacy as a right not to be bothered, is protected by the Convention for the Protection of Human Rights (art. 8). But when what you are publicly censure the conduct of politicians in their public sphere - such as promoting a law that allows the use of public funds for private purposes - the right to communicate information (art. 10) can not be interpreted - supports the Court in Strasbourg - in the light of the right to privacy. By this we mean that the limits of criticism are wider than permitted in relation to a politician, when he acts as such, as it does when Berlusconi is benefiting from a law to promote his circle of friends and mix unfairly with the private public space.
course, a politician has the right to privacy, even when it acts in public, but in this case the protection of his privacy must be balanced with the interests of free discussion of political issues (Judgement, Case Lingens, 1986). In this respect, the Strasbourg Court noted that, if a politician is in a situation in which are concealed his political activities and his private affairs, a debate can take place political unleashed harsh criticism in the law to provide information and freedom of expression (Judgement, Case Dichand of 26/02/2002). And the publication of photographs taken in the private residence of the prime minister is a legitimate way of promoting a public debate on abuse of power.
A second reason concerns the requirements of an open society: representatives are held accountable for behavior inconsistent and hypocritical. Therefore you must get in a diligent and truthful information to communicate about the company. If Berlusconi, the confusion between public and private evident from this democratically elected public representative, raises a few dubbi all’interno del dibattito politico riguardo all’abuso di potere e alla promozione del clientelismo che, sotto la sua ala protettrice, e grazie alle sua acquiescenza, si sta espandendo. Conoscere tali fatti in tutta la loro dimensione, per quanto possa risultare amaro, è oggettivamente un motivo di pubblico interesse.
La società italiana, e di riflesso quella europea nell’ambito dell’Unione, non può scrollare le spalle di fronte ai comportamenti di un politico che possiede un tale livello di responsabilità istituzionale sia nel proprio paese, sia in Europa. E l’interesse cresce quando, accanto a questa esibizione di eccessi che rasenta l’oscenità istituzionale, il primo ministro, in a period of obvious hypocrisy, has become the protagonist, as in the case Eluana, an institutional conflict with the President of the Republic, Giorgio Napolitano, who, with exquisite care, had to remind him that he could not ratify a law clearly unconstitutional by which Berlusconi, taking their positions for a ultramontane Catholicism, claimed to prevent the execution of a ruling by the Supreme Court, in order to prolong the life of a woman in a vegetative state for more than fifteen years. The Italian company has to have the opportunity to fight through information that the damage these miseries. The publication of the photos in Sardinia, therefore, the public interest, because this way you can consolidate public opinion freely.
(1) - Original article: "The intimidad y el primer minister"
http://www.elpais.com/articulo/opinion/intimidad/primer/ministro/elpepiopi/20090610elpepiopi_10/Tes/
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