CONTRABALANSAREA A DOUĂ DREPTURI FUNDAMENTALE: LIBERTATEA DE EXPRIMARE ŞI DREPTUL LA VIAŢĂ PRIVATĂ
COUNTERBALANCING TWO FUNDAMENTAL RIGHTS: FREEDOM OF SPEECH AND THE RIGHT TO PRIVACY

Summary/Abstract: The right to free expression enshrines two distinct aspects: the one regarding freedom of opinion and the one regarding freedom of information. Freedom of opinion is not limited to simply expressing opinions, but also includes the freedom to choose how we behave, we dress, talk, etc., while these choices are within the limits of morals and law. Freedom of information is the right to communicate information without restrictions and at the same time the right to receive information. Freedom of expression in any of its forms comes into play once the information lends support to the public. At the same time, we observe the extremely restrictive manner in which the constituent legislator chose to regulate the right to free expression of the individual. Thus, Article 30 (1) of the Constitution makes the following enumeration: thoughts, opinions or beliefs and freedom of creation of any kind. The right to private life is a broad right, involving social, family, and employment relationships between individuals and the employer. There can be no interference with it, only in an exceptional situation, situations that are listed under paragraph 2 of art. 8 of the Convention. Thus, the notion of "private life" is composed of two main elements: personal privacy and social private life. In turn, they are subdivided into certain categories. Both rights a priori deserve equal respect. Any admission to the action will interfere with the defendant's right to freedom of expression. A possible dismissal of the action will interfere with the applicants' privacy. It is therefore necessary to assess the opportunity and proportionality of each variant by correctly balancing the two conflicting rights. In order to resolve such a claim, which may have as its object the granting of an amount of moral damages, the obligation of the defendant to publish the judgment, to apologize, etc., the court will consider, together with the conditions of domestic law, the arguments of the two parties based on ECHR jurisprudence, by reference to each of the criteria outlined above. In such cases, a solution rejecting the applicant's claim for damages and those based on the obligation to do would be an interference with the applicant's right to privacy. As regards the provision in the law, the Civil Code includes provisions that ensure the right to privacy and freedom of expression (Articles 70, 71-73 in conjunction with Article 79 of the Civil Code). With reference to the legitimate aim, the dismissal of the action the applicant would fall under paragraph 2 of Art. 8 of the Convention, seeking to defend the rights and freedoms of others, namely the defendant's right to free expression.

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