Publicador de contenidos

Back to El método de la cámara oculta

Asunción de la Iglesia, Professor of Constitutional Law, University of Navarra, Spain

The hidden camera method

Wed, 07 Mar 2012 17:01:10 +0000 Published in Ideal (Jaén)

In its ruling of January 30, 2012, the Constitutional Court has affirmed that the use of the hidden camera method is constitutionally prohibited. With this resounding, novel and protective pronouncement of privacy rights, the Court has not only resolved a specific amparo process, but has also established a constitutional veto, and has also opened a very interesting discussion . In a detailed reading of the sentence, the Court recalls the special relevance of freedom of information for the existence of a free and necessary public opinion in a democratic State. This does not imply the absence of limits. On the one hand, those of truthfulness and relevance of the information and, on the other, the rights to privacy, to one's own image and to honor. It is these last external limits that lead the Court to disqualify 'in totum' the hidden camera method.

Firstly, the surreptitious and furtive nature of the videotaping is decisive for the ruling. The beautician/naturist received a false patient at her enquiry , who pretended to be someone she was not in order to extract certain information, thus creating a context of false trust. Deception is the first relevant element in the sentence as it excludes free consent in the transmission of information. The simulation serves to circumvent the expectation of reservation and the continued lie is the hook that the interviewer will take to the limit to obtain maximum information. Put in the shoes of the recorded person, the method admits no few ethical doubts, but it also has legal relevance.

Secondly, the recording took place in the private enquiry , which for the Court has the consideration of "place specifically ordered to ensure the discretion of what was spoken", and this consideration is also decisive.

In the amparo process, the Court had to assess whether the restriction of the rights to privacy and self-image was exorbitant or disproportionate or whether the informative freedoms should prevail. It would have sufficed to point out the excessive sacrifice of rights and the unnecessary nature of the method used to support the ruling. In fact, witness interviews could have served to gather information. The Supreme Court had previously ruled along these lines. However, the Court will go further by flatly establishing the constitutional prohibition of the hidden camera, and this is what has caused rivers of ink to flow.

Perhaps the high Court intends to put a stop to the media and curb excesses. In a constitutional state there can be no power without limits and the journalism of research is not immune to them, nor are the powers and means of research of the judges or the police unlimited.

However, with this constitutional prohibition of the hidden camera, other questions arise: One, on the very figure of the constitutional prohibition versus the self-restraint shown by the Court in other processes; another, on whether this veto will be limited to the journalistic field or is transferable to other fields in which the hidden camera is used; and finally, being an argument in an amparo case, although the Court's jurisprudence binds judges and courts regardless of the process in which it is dictated, perhaps it may be nuanced in the future depending on the circumstances of the case.

This forceful reaction of the Court can be explained by considering the harmful potential of the media in combination with the intrusion or interference capacity of modern technologies, especially when ethical limits are disregarded. Restoring the rights of those affected when the news is on the screen and the recordings on network is practically impossible. The damage to rights will almost always be irreparable and only economic compensation will be possible.

Going too far in the assumption, perhaps the Court could be pointing out that a fraudulent exercise in the methods -read as using trickery or deceit- prevents informative freedoms from prevailing against third parties whose rights have been affected. In any case, the discussion is served.