Limits to the freedom of information in the utilization of hidden cameras. Sentence of the Supreme Court of 2009 January 16TH

The Supreme Court of Spain has condemned to two Medias because of the realization of audiovisual recordings which constituted the subject of a report of researching and its subsequent broadcasting. This report was deemed as privacy’s right infringement. The Tribunal must ponder the prevalence of the honour’s right or the freedom of information right; both of them constitutional rights.

The facts were as follows: A journalist pretended to be a patient of the claimant, a beautician, and she was seen in the claimant’s office, recording the conversation and her image by means of a hidden camera.

The Provincial Court of Valencia in appeal deemed that there was not an honour’s right infringement by means of the following arguments:

• The freedom of information’s right.
• The investigative journalism and the report’s neutral condition.
• The report has been recorded with conceal.
• The claimant’s authorization to the reporter in order to enter to her office.
• The conversation was recorded by one person who had taken part in it, not by a third.

Nevertheless, the Supreme Court Sentence exposes that claimant’s authorization cannot be deemed as a recording’s consent, and above all, as authorization to its broadcasting, since the person who must give her acceptance does not know what he should consent.

Therefore, despite of the report’s veracity and its social interest, the Court considered that the privacy’s right must prevail because of these reasons:

• The report does not demonstrate that the claimant practice the job of physiotherapist without qualification (although the claimant was condemned previously because of it).
• The materials obtained in the investigative report lacked of the necessary relevance to justify the privacy’s right infringement.
• The record by means of a hidden camera was not essential to justify what happened in claimant’s office.

The Supreme Court’s Sentence considered that the privacy’s right was infringed. The claimant was deprived of deciding about her image’s reproduction. Therefore, it has been produced another infringement, fully compatible with the privacy’s infringement.