The video of a woman inside a nightlife center went viral the previous week in Ecuador; in 2016 something similar happened with a former judge who verbally and physically assaulted police officers; and in a third case, in Quito a man recorded the departure of his partner from a motel with another person. These situations, as well as the images of traffic accidents, are easily spread through social networks and on many occasions they do not have a brake.
In the most recent case, the young woman, through her defense attorney, requests that the people who initially spread the videos be investigated and traced, which "has caused tremendous damage to citizen Julissa," she said.
For the criminal lawyer Kléber Siguencia, in this case there was a violation of the right to privacy because the purpose of broadcasting the video was not only "to mock or to cause a joke, but now it is attacking the image and the honor of this person".
While for the jurist Julio César Cueva, there is no room for the claim because it was not recorded clandestinely but openly and publicly, it must also justify the impact it has had. "She complains only when the problem is armed, she does not do it before because the logical thing is that she complained at that time."
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The Constitution in its article 66, numeral 18, states that one has the right to honor and good name, that the law will protect the image and voice of the person. While the Organic Comprehensive Criminal Code, in its article 178, sanctions with a custodial sentence of one to three years the person who, without consent or legal authorization, accesses, intercepts, examines, retains, records, reproduces , disseminate or publish personal data, data messages, voice, audio and video, postal objects, information contained in computer media, private or reserved communications of another person by any means.
People who disclose audio and video recordings in which they personally intervene, or when it comes to public information in accordance with the provisions of the law, cannot accept this number. In addition, in public figures, their intimate sphere is reduced.
Jurists point out that first of all, what is considered privacy must be defined. This is everything that is not exhibited in front of the public, to what is not normally done in public and have a reasonable expectation of privacy. In turn, one must differentiate between privacy and intimacy, framed in the person and not in the place, with the right to use the image.
The violation of privacy is punished mainly to those who disclose it, despite the fact that the law also contemplates those who record it. Siguencia explains that it occurs because it is very difficult to find the person from whom the video originates, but that the IP address (internet protocol), email, telephone number of those who share it can be tracked. "Generally, this type of infraction goes unpunished precisely because it is not possible to identify the perpetrator of the infraction."
Cueva points out that "what causes harm is not recording, what causes harm is disclosure... I do not violate your privacy and intimacy if I take a photo of you on the street, but if I publish that photo to say things about you, I am affecting your image and your good name".
What about the security cameras?
Because the reforms to the COIP that allow the identification of individuals who committed crimes in flagrante delicto are not yet in force, the faces of antisocials cannot be disseminated. This despite the fact that on several occasions, authorities have shared the image in order to find those responsible for crimes. One of these cases happened earlier this week in the robbery of passengers on a bus in Guayaquil that was captured by a surveillance system.
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The Ecu911 system and the Citizen Security Corporation for the City of Guayaquil have the function of protecting security, as well as recording what happens on public roads. In order to have access to a recording of the institutions, it is necessary to request through a form that establishes what and why the video is required; it can also be done through a prosecutor.
In the case of commercial premises, several warn their clients that they are being recorded, so that the visitor is aware of the existence of cameras, so their rights are not affected either.
"Sometimes the images of accidents, of robberies, are leaked, there is undoubtedly a certain violation of security protocols, but beyond that, the fact that they are not disclosing intimate matters is simply news, a fact, a criminal event that is what usually happens," said Siguencia.
Violations
Article 471 of the COIP indicates that audio recordings, video images or photographs related to an act constituting an infraction, recorded spontaneously at the very moment of its execution, by the social media, by security cameras, do not require judicial authorization. surveillance or security, by any technological means, by individuals in public places with free movement or in cases where audio or video recordings obtained by one of the intervening parties are disclosed, in which case the preservation of the integrity of the record will be required of data so that the recording has probative value.
For his part, Cueva explains that when these videos that are under preliminary investigation are disseminated, they can hinder the investigation that is reserved, since it could cause the criminal to know where the camera is and even escape.
"This person enjoys the presumption of innocence, as long as a judge does not declare that they are guilty, they enjoy that right, showing his face would basically violate his principle," she emphasizes. (I)