Intimacy regarding each other: within relationships
Intimacy and privacy are different concepts, although we often speak indistinctly of one or the other, since they have been closely linked traditionally since the term "the right to be alone" was coined ".
The Spanish Language Dictionary (DRAE) defines intimacy as the "intimate and reserved spiritual zone of a person or a group, especially a family" and privacy as the "field of private life that is entitled to protectof any interference ".
The exposure of reasons of the previous Organic Law 5/1992, of regulation of automated treatment of personal data, predecessor of the current Organic Law on Personal Data Protection differentiated these concepts in such a way that it indicated that “…It speaks of privacy and not of intimacy: that is broader than this, since while intimacy protects the sphere in which the most uniquely reserved facets of the person’s life are developed – the address where they perform their daily lives, theCommunications in which he expresses his feelings, for example – privacy constitutes a more wide, more global set of facets of his personality that, in isolationa portrait of the personality of the individual who has the right to keep reserved."
Many authors defend this theory an example from the morphological and linguistic perspective is Díaz Rojo that estimates that: “Intimate applies to the deep and interior things of the human soul and, by extension, to the close, while private refers to the personalAnd the particular, that is, to what is kept closed to public access ”.
Martí de Gidi in his work "private life, honor, intimacy and own image as human rights", affirms that privacy is different from intimacy, on those occasions in which private life refers to aspects of the life of a person whoThey offer some link or relationship with the social either for labor, professional or commercial matters, aspects that exceed in their opinion the scope of intimacy.
The writer, neurologist and psychiatrist Carlos Castilla del Pino becameactions that can be observed and before those that could not be. In other words, the actions within private life would be those that we ourselves should protect because any foreign look could observe them, the intimate being those that are intrinsically in us such as thoughts, our desires, fantasies or feelings. Private life is definitely possibly observed, we must exclude the expectation of others with the provisions we adopt. While intimacy refers to the internal and in principle is not attachable by interference.
In conclusion we can affirm that, in principle, that the rights to privacy and privacy are not synonymous, since they regulate various aspects and the legal good guarded is not the same, being able to differentiate them in essence by the following parameters:
- The right to privacy always shows connotations relating to the social behavior of the person who is the right to law.
- The right to intimacy always involves personal or family aspects.
- The right to privacy requires the public projection of its owner to become effective
- When referring to privacy, its implications are towards feelings, thoughts, modesty, sexuality, secret and everything that is part of the most intimate and reserved of the individual.
The famous "The Right to Privacy" essay was published by two young Boston lawyers, Samuel D. Warren and Louis D. Brandeis, in the Harvard Law Review in 1890 and since then it has been one of the most cited articles by North American doctrine and jurisprudence, however, in Spain its translation was published in 1995 and it is that in this essay it was formulated for the firsttime the perception of the right to privacy and private life.
His concern for the private sphere comes for the press of the press to make his personal life public, it was that the paparazzi did not harass his family. The right to intimacy in this essay is conceived as "the right to be alone" or to "be left alone"
Warren and Brandeis achieved great success with their statement about an alleged right to privacy.
However, the legal configuration of intimacy is relatively recent, since it was in 1948 when the UN recognizes and positive. 12. “No one will be subject to arbitrary interference in his private life, his family, his domicile or his correspondence, or attacks on his honor or his reputation. Every person has the right to the protection of the law against such interference or attacks ”. Later the concept was continued in numerous international texts, thus art. 8 of the European Agreement for the Protection of Human Rights and Fundamental Liberties, of 1950. Finally, the art. 17 of the International Covenant on Civil and Political Rights of 1966 will eventually consecrate the recognition of privacy as a fundamental right in the international level.
In the German doctrine of Hubmann doctrine of concentric degrees of loneliness in private life three spheres of protection are recognized: the one that is normally wanted to hide the curiosity of others and is the most secret of the individual;Privatsphäre (the private or intimate) similar to the privacy of American law and can contain both family and personal relationships;And finally, the individualsphäre (individual sphere) relative to those issues concerning intimacy but that are within it, such as honor or image itself. Beyond these spheres we would find public life, with the scope of social relations, for which the imposition of limits to the participation of third parties cannot be requested.
With forming German theory, it could be distinguished different spheres, each of them with various levels of protection that in turn can change depending on the intention of concrete of the subject at a given time and according to the theory itself “the more the closer approachesdata revealed to the hard core of the materially intimate, greater relevance must be required to consider that its dissemination is constitutionally legitimate.
Morales Prats establishes that “(…) These spheres communicate and can become part of each other so that they constitute a spiral, in which through the consent of its owner the components of the Secret zone can become partof the relationships of trust or of this to the private sphere ”.
Intimacy is characterized by its relativity, since the content and scope of intimacy depend on the social, economic, and cultural conditions that occur at each time. Also, sometimes it is not easyTemporary dimensions of location, historical period, place, culture … However, in some way, the idea that there is a certain gradation of intimacy and, therefore, a different protection is present in legal practice and in court resolutionsConstitutional. The right to intimacy is a flexible right that has evolved throughout history as society has evolved.
This difficulty in delimiting the content of intimacy and confusion when describing the concrete spheres is what the doctrine has mostly criticized of German theory. Authors such as Medina Guerrero add that the impossibility of drawing dividing lines between the spheres contemplated in Hubmann’s thesis is what has led to a sector of the doctrine holding the uselessness of the same.
In general in the doctrine there seems to be an agreement and it is the difficulty in specifying, fixing and demarcating the content of the right of intimacy. In art. 18 CE There is no delimitation of the content of the right but the legal certainty of protection to personal and family privacy, the foreign law also does not clarify this definition. It is the jurisprudence of the TC that throws a little more clarity to the case, since there are many sentences where different blocks of subjects configuring the right to intimacy such as: body intimacy;sexual intimacy;marriage relationships;The sentimental life;the affiliation;The criminal history. The TC has also indicated those issues that cannot be understood in the field of coverage of the right to privacy as the inspection of bank accounts that may be required for the investigation of some other crime for fiscal purposes.
When talking about intimacy we refer to areas far from the voluntarily chosen interference of others, they can be reversed, there is the right of intimacy in voluntary secret areas, as well as the right to enjoy and control them.
The Spanish Constitution includes (as we have said previously) the right to privacy in art.18 And although it does not make any synthesized enumeration as the author does, it makes it clear that protected intimacy will be both the staff and the family. The personnel would be that which is specifically referred to to the individual, to a psychic and physical space related to the person individually considered, the right to privacy grants the power to protect those personal aspects that we do not want to be aware of others and justify theExclusion of interference as long as they are not constitutionally founded and that are proportional, or that there is a consent of the affected one, since it corresponds to each person to limit the scope of intimacy that is reserved away from the knowledge of others. On the other hand, the familiar would be the right of each man to a family environment where the intimate aspects linked to these relationships, understanding convivial and affective links, are not disseminated or known without consent without consent.
Regarding the extension of family life, our Constitution does not recognize a right to family life as well as the jurisprudence of the European Court of Human Rights with the interpretation of article 8.1 CEDH, but regulate family intimacy as an additional dimension of personal intimacy. We understand then that the right to intimacy includes both the personal aspects that we have described before and those aspects that affect and keep linking with the family bond, aspects that by that family relationship affect the sphere of the personality of the subject that art that art. 18 CE protects. An example of this would be certain events or events related to parents, children or spouses that, being disseminated or unduly publicized directly affect their own privacy due to their relevance.
We must also make a special mention to the recognition of the rights of deceased people who may have a specific impact on the personal and family sphere of the right to privacy. Well, relatives are the holders of the right to personal privacy of the deceased. Also, in cases of shared intimacy when there is a link between two people and one of them shares or disseminates something private from both without consent from the other person at first we could think that the person who disseminates him has the right to participatealso in what is disseminated, for example, a photo of both. However, jurisprudence rejects that argument and defends that the right to intimacy is very personal and indivisible, therefore, although in the photo the two people appeared, one cannot dispose of it without the consent of the other party. This is reflected in STS 1219/2004.
In summary, we can say that “the right to privacy is characterized by the rejection of any interference not consent in private life becomes an inherent right to the person as a right of every man to be free of unwanted interference and interference inYour private sphere ". "Private sphere is defined as that personal sphere where each one, preserved from the outside world finds possibilities for the development and promotion of personality". The Supreme Court defines it as "the right to keep intact, unknown, incontaminated and inviolate the family intimate or collecting area of man".
However, it has evolved from the delineated to combat the media and what was initially understood as "Right to Be Let Alone" to what is today within the Internet panorama. Well, at the time we find new technologies, the valuations of the intimate and internet management are changing causes the subject to acted without being aware of the risk of loss of control over any information that we yields and how this canderive in intrusions in intimacy.