Strasbourg, 2000

DH-MM(2000)007

 
 

CONFERENCE ON FREEDOM OF EXPRESSION AND THE RIGHT TO PRIVACY

Strasbourg, 23 September 1999

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Conference Reports

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Media Division
Directorate General of Human Rights
Council of Europe

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French edition:

Conférence sur la liberté d’expression et le droit au respect de la vie privée

Other conference publications:

DH-MM (2000) 8 : Universal community service: access for all to Internet services at community level (Malta Conference, 2-3 November 1999)

DH-MM (99) 7 : Proceedings of the information seminar on self-regulation by the media (Strasbourg, 7-8 October 1998)

http://www.humanrights.coe.int/media

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Table of Contents

CHAPTER I: INTRODUCTION

PROGRAMME

Welcome address
Pierre-Henri Imbert, Director General of Human Rights, Council of Europe

CHAPTER II: THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION

Freedom of expression and information in a democratic society and the right to privacy under the European Convention on Human Rights: a comparative look at Articles 8 and 10 of the Convention in the case-law of the European Court of Human Rights
Françoise Tulkens, Judge at the European Court of Human Rights, Council of Europe, Strasbourg

Freedom of the media: the freedom to collect and disseminate information and the freedom to self-regulate professional journalistic conduct
Bruno Grausen, former Commissioner for International Affairs, Danmarks Radio, Denmark

The right of the public to know and freedom of entertainment: information seen from the consumer’s angle
Toby Mendel, Head of Law Programme, Article 19, London

CHAPTER III: THE RIGHT TO THE PROTECTION OF PRIVACY

The protection of privacy and personal data and the right to use one’s image and voice: when does the dissemination of information become an interference with a person’s life?
Eric M. Barendt, Goodman Professor of Media Law, Vice Dean of the Faculty of Law, University College, London

Remedies against an infringement of privacy: the effect of sanctions and compensation and their proportionality
Matthias Prinz, Rechtsanwalt and Attorney at Law, Law Office Prinz Neidhardt Engelschall, Hamburg

CHAPTER IV: CONTRIBUTIONS FOR DISCUSSION

Statement by the UK Press Complaints Commission (PCC), London

Statement by Mr Lutz Tillmanns, Managing Director, Deutscher Presserat (German Press Council), Bonn

Statement by Mr Pär-Arne Jigenius, Swedish Press Ombudsman, Stockholm

Statement by Ms Judith Mann, Private Secretary to HRH The Princess of Hanover, Monte Carlo, Monaco

Statement by Mr Alain Toucas, Avocat, Paris

LIST OF PARTICIPANTS

EUROPEAN CONVENTION ON HUMAN RIGHTS (Rome, 4 November 1950)

ARTICLE 8 Right to respect for private and family life

ARTICLE 10 Freedom of expression

CONTACTS

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CHAPTER I: INTRODUCTION 

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PROGRAMME 

9h00 : Opening of the Conference

    Welcome address by Mr Pierre-Henri Imbert,
    Director General of Human Rights, Council of Europe

Session I: The right to freedom of expression and information
Chair: Mr Frithjof Berger, Chairman of the MM-S-HR1

9h30 : Freedom of expression and information in a democratic society and the right to privacy under the European Convention on Human Rights,

      Mrs Françoise Tulkens, Judge at the European Court of Human Rights, Council of Europe, Strasbourg

11h00 : Freedom of the media: the freedom to collect and disseminate information and the freedom to self-regulate professional journalistic conduct,

      Mr Bruno Grausen, former Commissioner for International Affairs, Danmarks Radio, Denmark

12h00 : The right of the public to know and freedom of entertainment: information seen from the consumer’s angle,
Mr Toby Mendel, Head of Law Programme, ARTICLE XIX, London

Session II: The right to the protection of privacy

14h30 : The protection of privacy and personal data and the right to use one’s image and voice: when does the dissemination of information become an interference with a person’s life?
Professor Eric M. Barendt, University College, London

15h30 : Remedies against an infringement of privacy: the effect of sanctions and compensation and their proportionality,
Mr Matthias Prinz, Law Office Prinz Neidhardt Engelschall, Hamburg

17h00 : Round table: Strategies for balancing freedom of expression and information in the media and the right to privacy

18h00 : Conclusion

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Welcome address
Pierre-Henri Imbert, Director General of Human Rights, Council of Europe
 

It is a great pleasure for me to be present and to open this Conference on freedom of expression and the right to privacy. I am very glad to welcome you to the Council of Europe, and I thank you for responding to our invitation. Very special thanks are due to those who have agreed to introduce the various themes and to conduct the Round Table which will conclude this gathering.

At this stage, of course, it is not my place to anticipate the various presentations to be made by the rapporteurs. My intention is more simply to give you an idea of the background to this conference and share with you some thoughts on certain aspects which I consider essential.

As you are no doubt aware, the European Court of Human Rights, as the supervisory organ under the European Convention on Human Rights (ECHR), keeps the national law and practice of member states under permanent review in the light of the Convention's requirements and acts as supreme authority for the interpretation of its provisions. Judge Françoise Tulkens will shortly be presenting to us the case-law of the Court on the subject in hand.

Furthermore, from the outset the Council of Europe made provision, alongside the judicial oversight performed by the Court, for setting up intergovernmental committees to enhance recognition of fundamental human rights and freedoms, for instance by recommending that governments take specific action to amplify and fulfil the commitments accepted by virtue of the ECHR in particular. In this respect, the Steering Committee on the Mass Media (CDMM) has to its credit an impressive body of achievements. It is of significant relevance to our present concerns that some years ago the committee decided to form a "Group of Specialists on Media Law and Human Rights" (MM-S-HR). As a result of this group's work, the present conference has been convened in order to determine whether, having regard to Articles 10 and 8 of the ECHR, common European approaches are desirable and practicable at intergovernmental level to develop each of these two rights while maintaining a certain balance between them.

There is no need for me to tell you that the topic which brings us together is very much in the news; not that it is really new, for it already has a history behind it.

I shall merely allude to Resolution (74) 26 of the Committee of Ministers on the right of reply which affirmed the right of individuals to have an effective remedy against the publication of facts and opinions constituting "interference with their privacy, except where this is justified by an overriding, legitimate public interest".

More recently, the Heads of State and Government of the Council of Europe, in the Declaration which they adopted at their 2nd Summit in Strasbourg in October 1997, expressed their concern to "seek common responses to the development of the new information technologies … while ensuring a proper balance between the right to information and respect for private life". The Parliamentary Assembly echoed this concern by adopting its Resolution 1165 on the right to privacy in 1998.

This retrospect would be incomplete without mentioning that these two rights are fundamental to every system of democratic government.

As the European Court of Human Rights has had frequent occasion to reiterate, freedom of expression and information constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for the development of each individual. One might add that the exercise of this freedom has been, and remains, one of the essential factors allowing transition from authoritarian rule to democratic government. Indeed, it has always been formally stated in the founding texts such as Article 12 of the 1776 Virginia Bill of Rights or Article 11 of the 1789 Declaration of the Rights of Man and the Citizen. Article 10 of the European Convention on Human Rights is plainly of this lineage in securing, as the Court has pointed out, the right of each individual to express his ideas,

Conversely, when an authoritarian regime takes power, its first measures are usually to abolish freedom of expression and "muzzle" the press. Silence and obscurity are necessary for dictators.

Thus one cannot but welcome the fact that the rapid development of communication facilities and the advent of today's "information society" now enable everybody, at least in theory, to have access to a mass of information beyond the dreams of earlier generations.

At the same time, however, information has become a "commodity"; channels of information and communication now form an industry in many countries. In the light of this development, it seems to me important when addressing the question of the scope and possible limitations of freedom of expression to bear in mind the significance and the effects of market pressure and competition between media. I consider this especially true, as current events regularly prove, in the field with which we are concerned today.

I have just mentioned "limitations", and indeed the question arises whether, as an essential foundation of democracy, freedom of expression can or should be absolute, and in what sense.

This freedom has always clashed with other rights and freedoms and nowadays specifically with the right to privacy.

In saying "nowadays", I should like to emphasise an aspect that is not always properly perceived: the tension or dialectic interplay between - to put it succinctly - the press and private life has an altogether remarkable breadth and intensity in our day. For a long time the basic issue raised by freedom of expression and information was attainment of the conditions most conducive to its full development. From that angle, the central problem was its relationship with authority. This problem has by no means vanished, as witness the number of journalists or writers convicted, imprisoned and even killed for their writings, in Council of Europe member states too.

However, in the "pacified democracies", for some years now the issue tending to "make headlines" has concerned the relationship between freedom of expression and privacy. The reasons for this are many and quite familiar to you. There is of course the development of the media in number, mode (paper, audio-visual forms) and resources (financial and technical). But there is also the fact that privacy evolves in its conception and also its perception.

This may raise a seeming contradiction on which sociologists could enlighten us. On the one hand, privacy occupies a place hitherto unknown. Suffice it to consider the number of activities and enterprises whose sole purpose is to satisfy the material as well as the intellectual "home instinct". Likewise, it is striking to observe the change in the concept of attack; one feels under attack when assailed not only with blows but also with noise or words. Apparently the susceptibility of individuals, at least in some circumstances, increases with the prevalence of technology in modern societies.

But on the other hand, and this may be the paradox, privacy sometimes gives the impression of aspiring to publicity. This is of course the phenomenon of media exposure which occurs with certain personalities who have achieved, or crave, recognition. Yet there is also a tendency to want to externalise certain facets of one's personality, lifestyle or even sexual orientation. Admittedly there have been instances of such attitudes in every age but today it constitutes a mass phenomenon with much further-reaching consequences.

I must humbly admit my uncertainty as to the value of the ideas which I have just outlined, rashly perhaps. At all events I am convinced that the concept of privacy would have to be explored in depth to apprehend its newest facets. A lot of research has indeed been carried out in this area, but one sometimes finds that it is forgotten when the relationship between media and privacy is considered. The role and especially the development of the media are subjected to usually very thorough analysis, but there is a tendency to perceive privacy according to rather traditional criteria.

Analysing both terms of the binomial is indispensable, I feel, in order to understand the nature of their relationship more fully and discover the best ways of striking a balance between them, or at least make sure that the media are not regarded just as a potential danger and protection of privacy as an obstacle.

This should make it possible to adopt a holistic approach in which the various aspects are considered side by side to ascertain their concordances and also their contradictions.

On that score, we know that while the media may commit sometimes serious encroachments on individuals' private lives - the intimate side as well - it happens that these wrongs are the outcome of a combination of material and behavioural factors that go beyond the media as such. This of course brings to mind the acquiescence of certain public figures who have a decidedly ambiguous attitude to the media. The well-known public demand for a certain type of press or programmes could also be mentioned.

Once conflicting rights and their limitations are spoken of, I find it difficult to forgo an examination of the media as a power - an ambivalent power, being very tenuous in some respects and very mighty in others. It is a fourth power which, unlike the three others, is still without a countervailing power. Could or should there be one; if so which and in what form?

We shall consider these questions throughout today's proceedings because whenever an occurrence implicates the media as regards respect for the privacy of others, ideas are put forward for legislative or administrative controls over the media or on the other hand for their self-regulation.

Additional questions will be addressed, such as those relating to the entity too often conspicuously absent from such debates, namely the public consisting of the readership, the listeners and the viewers who have turned into consumers.

It is plain that with all these ingredients to consider, striking a balance between freedom of expression and information and the right to privacy is no easy task.

However, I am sure - in view of the excellence of the participants - that the reports and discussions at this conference will allow us to progress along a narrow and arduous path. I have no doubt that our proceedings today will be informative for the committee of experts which organised this gathering and which I commend by greeting its Chairman as I give him the floor.

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CHAPTER II: THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION 

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Freedom of expression and information in a democratic society and the right to privacy under the European Convention on Human Rights: a comparative look at Articles 8 and 10 of the Convention in the case-law of the European Court of Human Rights

Françoise Tulkens, Judge at the European Court of Human Rights, Council of Europe, Strasbourg
 

"The more powerful the spotlight, the more impenetrable the darkness." (A. Maalouf)

Introduction

I am grateful to you for giving me the honour of addressing this forum of specialists in media law and human rights. I should first of all define the scope - and limits - of my address. Although we have a point in common, or to be precise a point of interest in common, namely human rights, unlike you I am not a specialist in media law, either in theory or in practice. My career prior to joining the European Court of Human Rights on 1 November 1998 was that of teacher and researcher in the field of criminal law and criminology, an area that is clearly sensitive to the difficult, delicate and often tense relations between the judiciary and the media in several matters, such as the secrecy of investigations or the presumption of innocence. Furthermore, in the country where I worked, Belgium, recent events have made us aware, on an almost daily basis, of both the positive and the negative features of the role of the press as well as of the (sometimes contradictory) demands of publicity and transparency, on the one hand, and respect for fundamental rights, on the other.

By making those two points I hope I have helped you to place in context the very modest contribution I am able to make to your proceedings, which I note are to end with a session devoted to establishing "Strategies for balancing freedom of expression and information in the media and the right to privacy".

The topic which the organisers of this conference asked me to deal with is one which, depending on one's viewpoint, either unites or divides the two aspects of today's agenda: freedom of expression and information, on the one hand, and the right to respect for private life, on the other hand, in the light of the European Convention on Human Rights. The question is all the more topical as the media not only amplify facts and events but also, very often, give them a social status. In any case, however, they constitute "an essential element in the creation and development of a democratic culture".2

We are therefore faced with a situation that is delicate but also rich in that it reflects the complexity of reality: on the one hand, rights are recognised and guaranteed, but at the same time they are subject to certain limitations or restrictions; and on the other hand, certain rights that are guaranteed in the same way by the Convention - in the present instance Article 10, which enshrines freedom of expression, and Article 8, which protects private life - clash and conflict with one another. "The unitary, monistic and peaceful vision of legal systems must give way to a perception of competing, confrontational areas".3

Purely in the interest of clarifying the discussion, or more precisely of defining its context, I shall endeavour, first of all, to identify, in the light of the wording of the Convention and the recent case-law of the European Court of Human Rights, the outlines of freedom of expression and the limitations/restrictions to which it may be subjected, from the standpoint of respect for private life (I). I shall then describe the situation of "virtual" conflict between Article 8 and Article 10 of the Convention and attempt to link these rights together in a relationship which I would like to be more dialectic than antagonistic (II). Although these rights and freedoms may limit one another, they may also be stimulated by one other.

This, then, is the title I propose for my contribution: "A comparative look at Articles 8 and 10 of the Convention in the light of the case-law of the European Court of Human Rights".4

I. Freedom and its limits, or the outlines of freedom of expression

Article 10 of the Convention is often regarded as the most central and fundamental provision of the Convention and, in that regard, it may be highly symbolic that the first judgment of the new European Court of Human Rights - the Fressoz and Roire judgment of 21 January 1999 - concerned freedom of expression. Article 10 operates on two levels: it first of all lays down a principle (the freedom guaranteed), then provides for an exception thereto (the limitations permitted).5 Unlike the situation to which I shall refer in Part II, we are dealing here with a hierarchy of rights.

A. The principle: the freedom guaranteed by Article 10

In order to understand the link between freedom of expression and the limits thereto, it is important first to understand the nature, the reasons, the substance and the scope of the guaranteed right, in all its subtleties. I shall merely indicate the factors I consider essential, namely those that must be involved in an attempt to identify the scope of the exception. In other words, we must clearly expound principles in order to have a full understanding of exceptions.

The wording of Article 10

Article 10 of the Convention, which has its origin in Article 19 of the Universal Declaration of Human Rights of 10 December 1948, is also to be found in Article 19 of the International Covenant on Civil and Political Rights of 16 December 1966.6

What is the scope of freedom of expression? "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises" (Article 10 § 1). Of course, this provision concerns not only the written but also the audiovisual press. Any kind of message (even, for example, commercial advertising, as the Court held in the X and Church of Scientology v. Sweden judgment of 5 May 1979)7 and any kind of medium (radio, television etc.) enjoys freedom of expression, which moreover, applies irrespective of the nature of the information (political, cultural, economic, trade, artistic, etc.).

Like freedom of opinion, which is not only the common denominator of the various aspects of freedom of expression but above all the raison d'être of that freedom, freedom of expression has two components: freedom to receive information or ideas and freedom to impart them.8 This identity of position between the "consumer" or "receiver" and the "producer" or "sender" reflects the requirements of the democratic debate.

However, the exercise of these freedoms involves "duties and responsibilities". That is the meaning of Article 10 § 2 of the Convention, which indeed begins with these meaningful words. The idea is not to establish a sort of parallelism between "rights" and "duties". Nor is it to subordinate one concept to the other or maintain that freedom of expression "has to be deserved". More subtly and fundamentally, the wording of the Convention calls on each person concerned, according to his individual or social position in the freedom of expression that is guaranteed, to think in terms both of freedom and of responsibility and to act accordingly. Whoever exercises freedom of expression also undertakes (and I use the word "undertake" advisedly, as it means to take upon oneself voluntarily and is quite different from "ascribe") the duties and responsibilities which these freedoms entail. It is in that sense that freedom of expression is a complex freedom.

There ensue, in a general way, various implications for the operation of the media in a democratic society, which are to be found in numerous codes of professional practice : respect for the public's right to be informed accurately of facts and events; collection of information by fair means; presentation of information, comments and criticism in such a way as to avoid unwarranted invasion of privacy, defamation or unfounded accusations; correction of any seriously inaccurate information; abstaining from inciting to violence, hatred, intolerance or discrimination based, in particular, on race, sex, language, religion or national or social origins.

Case-law

Within this complex entity, it is important to emphasise that the case-law of the European Court of Human Rights has, in successive stages, come to clarify both the scope and the scale of freedom of expression in its task of interpreting the Convention in a dynamic manner, ie in a way that takes account of changes in society and the collective conscience.9

In the case-law of the Court we find a corpus of what might be called guiding principles, making it possible to sketch the outlines of freedom of expression. They are, as it were, pointers, which I mention all too briefly, as each one should obviously be analysed in detail.10

- Freedom of expression is one of the key foundations of a democratic society. In that regard, the media play a pre-eminent role in a State governed by the rule of law (the Prager and Oberschlick judgment of 26 April 1995, § 34).

- The media have a role as "watchdog" (the Sunday Times judgment of 26 April 1979, § 65; the Lingens judgment of 8 July 1996, § 41, the Jersild judgment of 23 September 1994, § 31), which may explain a certain degree of exaggeration or even provocation (the Prager and Oberschlick judgment of 26 April 1995, § 38).

- It lies with the media - precisely because they fulfil the role of "mediation", to which I shall return in my conclusions - to impart information and ideas.11

- They should impart not only information or ideas that are favourably received or regarded as inoffensive or as matter of indifference, but also those that offend, shock or disturb, as intended by "the pluralism, tolerance and broadmindedness without which there is no democratic society".

- They should provide information and ideas about political matters as well as about topics of general interest.

- Finally, in addition to the media's right to impart information and ideas there is the public's right to receive them.

B. The exception: the limitations

Even in democratic societies - indeed, I might say above all in democratic societies - freedom of expression, as enshrined in Article 10 of the Convention, is liable to be affected by certain limitations.12

I shall deal here only with the limitations that are specific to Article 10 itself:13 "The exercise of these freedoms ... may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society [I shall confine myself here to the subject with which we are concerned today, namely private life] ... for the protection of the reputation or rights of others, [or] for preventing the disclosure of information received in confidence". The provision is couched in positive terms.

1. The limits to the limitations

What kind of interference is authorised or, in other words, what limits are placed on the limitations? Generally speaking, exceptions call for "close" supervision. If an interference with freedom of expression is not to constitute a violation of Article 10 of the Convention, three conditions must be satisfied; and the Court's case-law interprets these conditions restrictively. An essential factor, however, is that the limitations must be reconciled with the requirements of a democratic society, which is a rule of political ethics. A democratic society, which is distinguished by the pre-eminence of the rule of law, is the "reference environment" against which the acceptability of a limitation must be gauged.14 This criterion of democratic society, which is considered the most original criterion of the Convention and is to be found in its Preamble, is part and parcel of the general structure of the Convention.

In this context, the Court embarks on a threefold examination in the light of each case as a whole (without any restriction).

- Is the interference "provided for by law"? The question concerns both the accessibility and the foreseeability of the law, what has splendidly been called the "quality" of the law. As regards accessibility, the citizen must have adequate information concerning the legal rules applicable to a given case. As regards foreseeability, a norm must be formulated with sufficient precision to enable the citizen to regulate his conduct, in the sense that "he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty" (the Sunday Times judgment of 26 April 1979, § 49).15

- Does the interference pursue a legitimate aim? This must be one of the aims provided for in Article 10 § 2 of the Convention, namely, for present purposes, "the protection of the reputation or rights of others [or the prevention of] the disclosure of information received in confidence". It is for the States to show that the right must be subjected to a restriction in order to ensure that the legitimate aim referred to can be pursued.

- Is the interference necessary in a democratic society? The necessity of interference for the purpose of attaining the legitimate aim(s) pursued must be established convincingly; it implies a "pressing social need". On the other hand, what is merely useful, desirable, admissible, ordinary or even indispensable is not necessary (the Handyside judgment of 7 December 1976, § 48; the Observer and Guardian judgment of 26 November 1991, § 59). Similarly, a reason may be relevant without being sufficient.

The combination of necessary interference and legitimate aim opens the way to the "irresistible rise of the criterion of proportionality"16: is the interference proportionate to the legitimate aim pursued? It is easier, and above all quicker, to ask the question than to answer it - and yet, that is the crux of the issue.

However, it should be noted - as it is primarily for the States to secure enjoyment of the rights and freedoms enshrined in the Convention - that Article 10 § 2 leaves the States a certain margin of appreciation as regards these limitations.17 Furthermore, the extent of the margin of appreciation varies according to the aims of Article 10 § 218, even according to the facts of the case or to traditions, which may entail a certain amount of legal uncertainty and a lessening of the guarantees. As Lambert observes, however, "it is undeniably the particularly wide margin of appreciation left to the States concerning freedom of expression in the sphere of the protection of the reputation or rights of others that can prove most disconcerting in an analysis of the case-law of the European Court, as the necessary balance between the values involved is so difficult to achieve".19 This "self-limitation" which the Court imposes on
itself - to borrow the phrase of the former Registrar, M.-A. Eissen - may entail the risk that the protection of the rights of others is "reduced to a common denominator remote from a shared ethical rule".20

In any event, the margin of appreciation is subject to a European supervision (the Barfod judgment of 22 February 1989, § 28; the Groppera Radio and Others judgment of 28 March 1990, § 72; the Weber judgment of 22 May 1990, § 47, etc.). In accepting the co-existence of a national margin of appreciation and a European supervision, the Court's case-law requires a certain "proximity" of the national rule in relation to the European system. This "original process of co-ordination ... precludes the absolute sovereignty of States (negation of the European idea) and their complete subordination to the European system (negation of European diversity)".21 P. Wachsmann considers, however, that it is over the question of total supervision (where the Court entirely substitutes its own assessments for those of the national authorities) or restricted supervision (where the Court merely ascertains that the national authorities' assessments were not unreasonable) that "the Court's case-law seems to involve developments and hesitations".22 To my mind, the supervision is entire when it comes to protecting the reputation and rights of others. The majority of the judgments are along these lines, which is logical, as these terms may be given a uniform meaning in the member States. Furthermore, the Court has repeatedly observed that it is ultimately responsible for determining whether a restriction is reconcilable with freedom of expression.

2. Examples from recent case-law

I shall give these examples in an impressionistic manner, without any concern for exhaustiveness.

In the Court's case-law regarding the limits authorised under the exception to Article 10 for the purpose of protecting the reputation or rights of others, two important aspects relate to the protection of the reputation of others, on the one hand, and to the protection of the sensitivity of others, on the other, against unwarranted violations. It should be noted that the protection of the reputation and rights of others is the ground most likely to be relied on in the advertising field, as it includes the protection of consumers.

- As regards the first aspect (reputation), you will, of course, remember the Lingens judgment, where an Austrian journalist complained that his right to freedom of expression had been infringed by his being convicted of defaming the then Austrian Chancellor in two articles. The question, therefore, was whether a conviction for defaming politicians in the press was consistent with Article 10. Mr Lingens had accused the Chancellor of protecting former members of the SS for political reasons. In the Prager and Oberschlick case, on the other hand, the Court held that the conviction of the applicants (a journalist and the publisher of a periodical aimed at intellectuals) for defaming certain Austrian criminal judges was justified under Article 10 § 2. In the De Haes and Gijsels case the Court reached the opposite conclusion, considering that the actions for defamation brought against journalists by some judges had infringed their right to freedom of expression and could not be justified under Article 10 § 2. The Court held that the opinions expressed by the applicants, albeit polemical and even aggressive, were not excessive and appeared to be "proportionate to the stir and indignation caused by the matters alleged in their articles".

- As regards the second aspect, the dividing line between freedom of expression and the protection of the sensitivity of others has been examined in a number of cases. In the Jersild case, where a Radio Denmark journalist had been convicted of aiding and abetting the dissemination of racist remarks made by members of an extremist organisation in a television feature, the Court considered that, in the general context of the feature, the broadcasting of the remarks was not aimed at propagating racist ideas but, on the contrary, at exposing the group concerned to public criticism. The conviction therefore infringed Article 10 and was disproportionate. However, seven judges expressed dissenting opinions, taking the view that persons involved in the broadcasting of racist points of view must clearly and unequivocally dissociate themselves therefrom.

The exception which consists in preventing the disclosure of information received in confidence is also to be found in Article 10 § 2. It was examined most thoroughly in the Gaskin case, where it was interpreted as encompassing "the protection of the rights and freedoms of others", precisely within the meaning of Article 8 (judgment of 8 July 1989).

- The applicant wished to consult the official information gathered about him during his childhood and formative years when he was placed in care, as he claimed that this would allow him to understand the psychological problems from which he was now suffering. He did not allege that the information had been used to his disadvantage, but argued that it was unlawful to deny him access to it. The Court did not attempt to define any general principles governing, in this case, the right of access to data and information of a personal nature. It considered that the States enjoyed a wide margin of appreciation in the case of positive obligations arising under the Convention and that, in order to determine whether this power had been used judiciously, it was necessary to decide whether the various interests involved, including the legitimate aims referred to in Article 8 § 2, had been evaluated fairly. It was necessary to weigh up, on the one hand, the public interest associated with the effectiveness of the functioning of the system of placing children in care and, on the other, the applicant's interest in having access to a coherent file setting out his personal history. At a time when increasing use is being made of information technology, however, it will in future be necessary for the Court to envisage issuing general guidelines governing access to personal information and data.

Finally, I shall refer to two recent judgments of the Court that form part of the dynamics of this case-law and at the same time clarify it and supplement it on certain points.

- In the Fressoz and Roire judgment of 21 January 1999 the Court concluded unanimously that there had been a violation of Article 10 of the Convention. It observed that while it was in the first place for the national authorities to assess whether there was a pressing social need capable of justifying a restriction of Article 10, where the press was concerned the national power of appreciation was circumscribed by the interest of democratic society in ensuring and maintaining a free press. In this particular case the Court found that the publication complained of came within the context of an industrial dispute, widely reported in the press, at one of the major French car manufacturers. "By making such a comparison against that background, the article contributed to a public debate on a matter of general interest. It was not intended to damage Mr Calvet's reputation but to contribute to the more general debate on a topic that interested the public" (§ 50).23 Furthermore, "[n]ot only does the press have the task of imparting information and ideas on matters of public interest: the public also has a right to receive them ... That is particularly true in the instant case, as issues concerning employment and pay generally attract considerable attention" (§ 51). "Consequently, an interference with the exercise of press freedom cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest" (§ 51).24 As for the "duties and responsibilities" undertaken by journalists, the scope of which depended on their situation and the technical means they used, the Court stressed that journalists could not be released from their duty to obey the ordinary criminal law on the basis that Article 10 afforded them protection. In the instant case, however, the Court was required to decide whether, in the particular circumstances of the case, "the interest in the public's being informed outweighed the 'duties and responsibilities' the applicants had as a result of the suspect origin of the documents that were sent to them" (§ 52). The Court considered that it must in particular determine whether the objective of protecting fiscal confidentiality, which in itself was legitimate, constituted a relevant and sufficient justification for the interference (§ 53). In that regard, the Court wondered whether there was any need to prevent the disclosure of information that was already available to the public and might already have been known to a large number of people. "While that information cannot be disseminated, it is thus accessible to a large number of people who may in turn pass it on to others. Although publication of the tax assessments in the present case was prohibited, the information they contained was not confidential. Indeed, the remuneration of people who ... run major companies is regularly published in financial reviews and the second applicant ... had referred to information of that type in order to check roughly how much Mr Calvet was earning ... Accordingly, there was no overriding requirement for the information to be protected as confidential" (§ 53). Finally, if, as the Government accepted, the information about Mr Calvet's annual income was lawful and its disclosure permitted, the applicants' conviction merely for having published the documents in which that information was contained, namely the tax assessments, could not be justified under Article 10. "In essence, that Article leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility. It protects journalists' rights to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide 'reliable and precise' information in accordance with the ethics of journalism" (§ 54).

- The background to the Bladet Tromsø and Stensaas v. Norway judgment of 20 May 1999 was especially delicate. The applicant's newspaper had published an interview with Mr Lindberg, during which Mr Lindberg had stated, inter alia, that certain hunters had violated the Seal Hunting Regulations. The crew of the ship concerned had therefore instituted an action for defamation, which the courts upheld, declaring the contested statements null and void. The question for the European Court was whether the interference, which was provided for by law and which pursued the aim of protecting the reputation and rights of others, was necessary in a democratic society. On the one hand, the Court considered that "[t]he most careful scrutiny" on its part was called for when "the measures taken or sanctions imposed by the national authority [were] capable of discouraging the participation of the press in debates over matters of legitimate public concern" (§ 64). On the other hand, the Court pointed out that "the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the provision that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism" (§ 65). Accordingly, the Court concluded that "[o]n the facts of the present case, [it could] not find that the crew members' undoubted interest in protecting their reputation was sufficient to outweigh the vital public interest in ensuring an informed public debate over a matter of local and national as well as international interest" (§ 73).

Finally, a case currently pending before the Court concerns the question of images. In that regard, it is of course accepted that Article 10 protects not only the substance of ideas and information but also the form in which the substance is communicated. A ban on publishing an image may be considered a justifiable interference with the right to freedom of expression provided it satisfies the criteria of Article 10 § 2.

II. The conflict of freedoms, or the outlines of private life

Here, the situation is sometimes termed conflicts of rules. The protection of values enshrined in the Convention may override the measures which, whether directly or otherwise, restrict freedom of expression and freedom of information.

In a number of Resolutions or Recommendations of the Parliamentary Assembly25 and the Committee of Ministers26 of the Council of Europe, it is expressly stated that "[j]ournalism shall be exercised so as to serve freedom of expression, which includes ... [respect for] other fundamental rights, freedoms and interests protected by the European Convention on Human Rights"27, such as a fair trial or the presumption of innocence. In the present instance, the competing right we are concerned with is the right to private life, respect for which by the media is, as numerous texts adopted within the Council of Europe have also emphasised, an imperative need.28

More fundamentally, this right is guaranteed by Article 8 § 1 of the Convention, which protects individuals not only against interference by the public authorities but also against interference by individuals and private institutions, including the media: "Everyone has the right to respect for his private and family life, his home and his correspondence".

This brings us to the heart of a situation of "virtual conflict" between two rights.29 Each right and freedom is proclaimed, recognised and guaranteed, but, at the same time, each one is capable of limiting the other and being limited by it. Indeed, the right to respect for private life may be openly hostile to freedom of expression. A conflict of values lies within the tension between freedom of expression, the public's right to be informed and the right to one's privacy or reputation.

As J. Velu points out, this situation is different from the previous one, where the State relies on the restriction provided for in Article 10 § 2, even though the two situations are not mutually exclusive (in the sense that they may be superimposed on each other).30 In the present instance, the restrictions placed on freedom of expression result from the conflict between competing freedoms that are both guaranteed by the Convention. In this connection, Fr. Rigaux observes that "far from having to justify the derogation from a freedom guaranteed [by the Convention], the State measure is justified by the duty to enforce another provision with the same status as the article with which it conflicts".31 In other words, the lawfulness of the interference/limitation has its source in the Convention itself. As we shall see, this has consequences for the way in which this conflict between rights guaranteed by the Convention is handled.

Furthermore, as we know, Article 8 has the same structure as Article 10. Both embody rights with a "relative" value or degree of protection, which means that the exercise thereof is subject to limitations.32 Article 8 § 2 is worded as follows: "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of" (I shall confine myself to the matter with which we are concerned) "the protection of the rights and freedoms of others", hence (inter alia) freedom of expression. Although Article 8 of the Convention contains no express reference to that effect (unlike Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights of 1966), it is a reasonable inference that the protection of the honour and reputation of others comes within the concept of private life.33 In this case there is a "twofold reason" why a person availing himself of freedom of expression should be denied immunity in relation to documents or acts that encroach on private life: in addition to the exception in Article 10 § 2, which gives the "protection of the reputation or rights of others" as a legitimate ground for restricting freedom of expression, Article 8 § 1 requires the State to take the measures necessary to protect the reputation of persons within its jurisdiction. If such measures are in danger of discouraging the exercise of freedom of expression, this gives rise to a conflict between Article 8 and Article 10. There is therefore, as it were, a virtual double conflict, a double constraint. It is, in principle, under the supervision of the Court that States can settle the matter; but how?

To try to clarify these issues, I shall confine myself to two points.

A. What is meant by private life? The outlines of private life

The text

Freedom of private life is one of the last democratic freedoms, "the most fragile one" but also "the one given the most media coverage".34 As Fr. Rigaux observes, in the nineteenth century "only certain places or assets enjoyed constitutional protection, which covered the inviolability of the home and the secrecy of correspondence".35 It is not therefore by chance, according to the same author, that Article 8 of the ECHR links private life to these two traditional freedoms; and in the Court's case-law, moreover, we shall see a certain proximity or relationship, and perhaps even a certain interchangeability, between these concepts.

The outlines of the right to private life are blurred and uncertain.36 They are, moreover, keenly debated. Private life is a contingent concept whose content varies according to the era, environment and society in which the concept is applied.37 The best authors conclude that it is virtually impossible to define private life;38 and yet the forms in which private life is manifested today are developing considerably (see, for example, the Botta v. Italy judgment of 24 February 1998, §§ 28 and 29). On 23 January 1970 the Parliamentary Assembly of the Council of Europe adopted a Recommendation on mass communication media and human rights, in which privacy was defined as follows: "The right to privacy consists essentially in the right to live one's own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against unjustifiable or unreasonable spying and prying, protection against misuse of private communications, protection from disclosure of information given or received by the individual confidentially".39 In the same year, as O. De Schutter observes, a committee of human rights experts used a wording which may be more conceptual but where "the concept that private life is based on the individual's mastery of information that concerns him personally prevails": "The right to respect for private life is mainly based on recognition of the individual's interest in being protected against any intrusion into his privacy and into every part of his existence he may legitimately wish to keep to himself. This interest concerns communications and personal relations as well as all matters affecting his private life and personality; it is connected, in particular, with his image, his voice and his home as well as to the possessions which belong to his personal sphere".40 In the various national legal systems we can also observe other examples showing that the concept of private life has made, and continues to make, considerable progress in domestic law.41

Initially this right, called freedom of private life, protected an intangible asset, viz reputation, honour and privacy - in short, everything the disclosure of which adversely affected human dignity. It was only after the second world war that the "assets of personality" became part of our constitutional heritage. The right to develop one's personality is linked to the intangibility of human dignity. A noteworthy debate has, however, arisen. Some see private life as a mere manifestation of the principle of individual freedom, while others regard it as the source of subjective rights of a particular kind, the rights of personality.42 Rights of personality versus freedom of the individual: this debate is not entirely irrelevant here, as it may have effects in terms of the strengthening or weakening of guarantees, in particular those afforded by the European Convention on Human Rights. If private life is identified with the principle of individual freedom (in this sense private life, or privacy, denotes freedom to be oneself), State interference "is justified only where the individual's exercise of this freedom comes into conflict either with other individual freedoms or with the general interest". Private life "cannot be defined a priori: its scope becomes apparent only through a settlement of the conflict caused by its exercise".43 The other option, as we have seen, is a catalogue of a series of subjective rights.

Case-law

The questions asked by Fr. Sudre are fully relevant. "To the question: 'What have the following in common: telephone tapping, pollution caused by the chemical industry, sado-masochistic sexual practices and the forename Fleur de Marie?', the European Court now
replies: 'Private life'".44 "Does this mean that everything is 'private life' and that the right to respect for private life as guaranteed by Article 8 of the Convention has now acquired an indefinite scope? Has the European Court adopted the American model of privacy, whose insular and absolute character has been noted?"45 The evolution of the European Court's interpretations in order to protect the Convention from any anachronism and adjust its application constantly to changes in customs and attitudes causes it to "follow the trend"46 and reach its decisions "in the light of current circumstances" (the Rees v. the United Kingdom judgment of 17 October 1986, § 47).

What I, like Fr. Sudre, find interesting is the way in which the European case-law has evolved: from guaranteeing the "right to live, as far as one wishes, protected from publicity" (Commission Decision of 18 May 1976 in the case of X. v. Iceland), private life has moved towards the obligation to "ensure that an individual has the opportunity to develop his own personality in relationships with other persons" (the Botta v. Italy judgment of 24 February 1998, § 32). Private life concerns two aspects of personal and social private life: privacy and dignity. The frontiers of the right to respect for private life have thus considerably widened. Does this mean that the horizon has become more blurred? It is for you to decide this question.

1. The right to personal private life

Here we are concerned with the privacy of the individual, which covers three fairly separate fields.

First, private life covers the right to lead one's life, including one's sexual life, without any external interference (the Dudgeon judgment of 22 October 1981; the Norris judgment of 26 October 1988; the Modinos judgment of 22 April 1993; and the Laskey judgment of 19 February 1997), the physical and moral integrity of the person (the Stubbings v. the United Kingdom judgment of 22 October 1996, § 61) and includes sexual life (the X and Y v. the Netherlands judgment of 26 March 1985). In the last-named case the Court further held that not only was the State under an obligation to refrain from interfering in the right; it was also under a positive obligation to ensure effective respect for the right (§ 23).47 As Sudre explains, "in the classic field of the right to respect for private life, the Convention's institutions have endeavoured to distinguish the concept of private life from the other concepts referred to in Article 8 by defining the scope of each of them".48

Another field is that of the right to secrecy and the protection of personal data, in particular against computerisation.49 After approaching the issue from the standpoint of private life, which appeared to be relevant to the creation and communication of files containing such information, the Court dealt with it from the angle of private and family life in the M.S. v. Sweden judgment of 27 August 1997.

A third and last field is that of the right to personal development.

2. The right to a social private life

Although the Court "does not consider it possible or necessary to attempt an exhaustive definition of the notion of 'private life'", in its judgment of 16 December 1992 in the Niemietz v. Germany case it caused the concept of private life within the meaning of Article 8 of the Convention to take what Sudre has described as a "qualitative leap forward".50 The Court considered that "[r]espect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings" (§ 29). The right to "private and personal life" is now joined by the right to "private and social life".51 The Botta v. Italy judgment of 24 February 1998, for its part, "attempts to reconcile the personal and the social dimension of private life and, without suggesting a definition, reflects the Court's latest thinking in the matter":52 "[p]rivate life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings" (§ 32).

The concept of private life has therefore been subjected for several years to what Sudre rightly calls a "spectacular widening". In asserting that "respect for private life should also encompass, to a certain extent, the right for the individual to establish and develop relations with his fellows", the Niemetz judgment "opens the scope of private life not only to professional or commercial activities but, more widely, to all social relations, as it is indeed a question, as stated by the Court, of taking account of the opportunities offered to individuals to 'strengthen their relations with the outside world'."53 Life thus acquires a genuine and indisputable "social dimension".54 The right to respect for private life "is not only the right to remain in one's home and exclude others; it is also the right to go out of one's home and meet others".

The most readily identifiable sequels at present are the extension of the protection of Article 8 to the right to establish links in a host State (and to preserve the resulting links) and to preserve the lifestyle of a minority group (the Norwegian Lapps cases, Commission Decision of 3 October 1983). Of more relevance here are the right to one's name and the right to one's identity. In the Burghartz v. Switzerland judgment of 22 February 1994 the Court linked this right not only to private life but also to private and family life (§ 24). The same applies, logically, to the right to a forename (the Guillot v. France judgment of 24 October 1996, § 21). The Court considered that, although the forename concerned the private and family life of the person concerned, the choice of a child's forename by its parents was a personal, emotional matter and hence part of their private sphere.

Finally, the right to a healthy environment is the subject of the very important López Ostra judgment of 9 February 1994, just like, as we shall see, the right of access to certain information concerning the environment.

B. Balancing the rights

Fundamental rights are not arranged in an order of priority. For present purposes there may be said to be two fundamental subjects of attention and legal protection: the media as an instrument of the right "to receive or impart information or ideas", a tool and resource in the formation of public opinion in democratic societies; and the individual in the sphere of his private, personal and social life.

In the presence of the "logical contradiction of two conflicting provisions of the same international instrument",55 it is not the principle of proportionality that should be applied. As Fr. Rigaux points out, a different approach is called for, namely the application of the balancing-of-interests test in order to ascertain whether a fair balance has been struck
between the two competing freedoms.56 Accordingly, where one right clashes with another right it is necessary to find a "reasonable balance". As R. Ergerc points out, "one is no longer dealing with a freedom and the exceptions thereto ... but rather with an interpretative dialectic which should be aimed at reconciling the freedoms".57 In a decision of 16 October 1986 the Commission emphasised that in the event of interference in a person's private life through a publication in the press, the State must strike a fair balance between the two Convention rights involved, namely the right to respect for private life as guaranteed by Article 8 and the right to freedom of expression as protected by Article 10 of the Convention. But where lies the point of balance between freedom of expression and private life today? These rights and freedoms are not always convergent.

What are the contributions or achievements of the Court's case-law in this regard?

Generally speaking, there are fairly few relevant decisions. Why is this? Perhaps, as J. Velu explains, it is because "only the States may be challenged before the European Court of Human Rights, so that an application against an individual or a group of individuals, such as private newspaper groups, on account of an alleged violation of the Convention is as a rule declared inadmissible. The ingredient of the alleged violation must therefore come within the sphere of competence of the State concerned: the act or omission must fall within the direct or indirect responsibility of a public authority under that State".58 In that connection, without going here into the question of the horizontal applicability of the Convention, it is nevertheless possible to refer to the case-law of European Court of Human Rights specifically with regard to the right to respect for private life as guaranteed by Article 8 of the Convention: in the X and Y v. the Netherlands judgment of 25 March 1985 the Court, relying on the positive obligations inherent in effective respect for this right, considered that these positive obligations "[might] entail the adoption of measures aimed at respect for private life even in relations between individuals" (§ 23).

With this proviso, some decisions must none the less be mentioned. I shall refer to them in chronological order so as to indicate the evolution that has occurred.

- In a decision of 6 April 1985 the European Commission of Human Rights considered that there had been no infringement of Article 8 of the Convention as a result of the police or the prosecution making information available to the press, which had published it in relation to a case. The Commission noted that only the initials, age and place of residence of the applicant had been disclosed, that the information in the press was summary and factual and that the reporting of the case could be regarded as in the public interest.59

- In a decision of 10 July 1986, on the other hand, the European Commission of Human Rights acknowledged that member States had to some extent a positive obligation to interfere in the exercise of the right to freedom of expression in order to protect the right to privacy of others, since the right to private life as guaranteed by Article 8 could be violated by publications or disclosures made in the media. The Commission expressly stated that it was necessary to take account of Article 10 of the Convention in fixing the positive obligations that could be imposed by Article 8 of the Convention.60

- In the Z v. Finland case (judgment of 25 February 1997) the Court considered that the disclosure of information about a person's HIV infection could dramatically affect his or her private and family life, as well as social and professional situation, by exposing him or her to opprobrium and the risk of ostracism (§ 96). The Court therefore held that there had been a violation of Article 8 of the Convention because Z's name had been mentioned in a judgment, with an indication that she was HIV-infected and because the judgment had been communicated to the press in that form. More subtly, in fact, it was the revelation of the applicant's medical identity in connection with HIV that was considered to constitute a violation.

- The Guerra v. Italy judgment of 19 February 1998 represents a sequel to the López Ostra decision of 9 February 1994, which, it will be recalled, enabled the right to a healthy environment to make a conspicuous entry into the scope of Article 8. In this judgment, which was delivered by a Grand Chamber, the Court effected what Fr. Sudre calls the "eviction of the right to information as guaranteed by Article 10 of the Convention".61 The applicants complained of the absence of information concerning the risks resulting from a chemical factory, basing their complaints on Article 10 of the Convention. However, the Court decided that it would also consider the case under Article 8 (§ 46). In fact, as Sudre observes, the Court considered the matter from the standpoint of "the positive measures that the State must take to ensure the effectiveness of the right to respect for private and family life and held that Italy had violated Article 8 because the national authorities had not provided the applicant with the essential information concerning the major risks stemming from the establishment of a chemical factory near their locality".62

- The McGinley and Egan v. the United Kingdom judgment of 9 June 1998 follows the same lines: "Where a Government engages in hazardous activities ... which might have hidden adverse consequences on the health of those involved in such activities, respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information".

Other situations may, of course, arise. For example, the laws of a number of European countries have protected the private lives of victims of sexual assault by prohibiting their identity from being made public without their consent. In the United States the Supreme Court declared that legislation similar in scope was incompatible with the First Amendment to the Constitution. The special situation of minors may also be mentioned.

Conclusions

Between "destroying the media" (and, if they did not exist, refraining at all costs from inventing them) and "committing a crime against democracy" by calling in question the functioning of the media,63 is it possible to find another way of expounding the problem? The dialogue of the deaf should be answered with the dialectic of communication (Habermas).

Ultimately, the question is not what is better for the proper operation of a democratic State governed by the rule of law - a free and critical press or respect for private life in its various forms. Each is the custodian of a democratic system. Both must live together in harmony. We must think, wish and live accordingly.

A society always consists of two parts, either implicitly or explicitly: the oikos (the home, the family, private life) and the agora (the public/private place of debate) (Castoriadis).

The European Convention on Human Rights can play a decisive role: this standard-setting instrument is increasingly regarded as one of the soundest legal foundations of the vast "European information society" that is developing, where all rights must be safeguarded.

* * *

Freedom of the media: the freedom to collect and disseminate information and the freedom to self-regulate professional journalistic conduct

Bruno Grausen, former Commissioner for International Affairs, Danmarks Radio, Denmark
 

1. Introductory remarks

This report is not meant to be a “university study” on freedom of information, its definition, international court decisions etc., but it contains a number of personal observations based on 26 years’ work in a public service broadcasting organisation, covering both radio and television. In other words: it is a report on the freedom of information seen from the angle of the information-provider.

2. The freedom of information

In this forum, which has been set up by the Council of Europe, it is hardly necessary to underline the immense importance of the notion of freedom of information. The Council of Europe has always been a leading figure in this field and has done quite an impressive work in order to further the notion of freedom of information, not least in the recent period, where so many journalists in Central and Eastern Europe are changing their working methods from a communist regime to a democratic regime.

Nevertheless – and in order to explain why I, personally, have always fought against any attempt to reduce the field of freedom of information, even if it is done with the best of intentions – I would like to recall two personal experiences. First, as a small child I went to school in Italy under the fascist regime of Mussolini. In retrospect it has been shocking to see how deeply we were influenced by the consequent propaganda where no other opinion was permitted. Secondly, in the years 1976 to 1988, I had the opportunity, in my professional capacity in Danish broadcasting, to visit all State broadcasters in Central and Eastern Europe and to have contacts with colleagues in these organisations. During all these years I had an eternal struggle with my counterparts in order to obtain permission for our journalists to visit and report from these countries, in order to obtain acceptance of correspondents of our own choice, and of trying to gain permission to report on matters which also affected Western countries, such as security measures in the nuclear field (this was before Chernobyl). All in all it was a rather frustrating experience to deal with representatives of societies that do not acknowledge the notion of freedom of information.

Therefore the importance of freedom of information is deeply rooted in me, and I have always fought against any attempt to reduce the freedom of information, even if it is done with the best of intentions. As I shall mention further on, such measures can easily lead to unforeseen or unintended limitations. I have a couple of examples in this field.

3. Freedom of collecting information

The question of protection of privacy is in reality not a question of big importance in the daily activity of a broadcaster. We transmit thousands and thousands of hours of information, and the cases where the protection of privacy is a real issue can probably be counted on one or two hands over a year’s activity. What is the real problem for the journalist in his daily work, is to be sure that he gives correct information. Much of his time is spent on checking and double-checking information, and the Internet has not made his job easier – well, yes in the sense that much more information is available and in a much quicker way, but at the same time it becomes more and more difficult to check the credibility of the sources.

The question of protection of the sources, that is the non-disclosure of a source, is perhaps a problem which arises more often than the question of protection of privacy. And this is a problem which can very well put a journalist in a very serious dilemma, because most legislation contains provisions which oblige a journalist in specific cases, such as serious crime, to disclose his source. The professional ethics of a journalist will probably in most cases induce him not to disclose the source, even if the journalist risks being punished for this.

The freedom to collect information is in many cases made easier by legislation, which gives the public and the press access to files in the public administration, be it the correspondence of the ministries or on the regional and municipal level. This instrument has in many cases proved to be useful in order to disclose abuse, corruption or bad practice. In this field, however, I have an example of a legislation which – unintentionally - had negative consequences for the freedom of information. The Danish legislation on the public’s access to the files of the public administration had been formulated in such a manner that my organisation was also considered to be a public administration. In a way this was a logical consequence of the fact that we are one hundred percent financed by the public through the licence fee. It seemed reasonable that for instance our accounts and administrative procedures were open to the public just as for any other public administration. For many years this never created any problem until, suddenly, in the preparation of a court case concerning a programme, we were met with a request to give to our counterpart a copy of our files concerning the programme in question. The consequence would have been that our sources would not have been protected, so we denied this access. The practical outcome of this controversy was that the Ombudsman got the files and studied them, and gave our counterpart access to parts of the material. The more important consequence was, however, that the legislation was changed, so that our programme activity is not under the provisions of the law on public access now.

I mention this example because, in my opinion, it illustrates how careful you have to be when drawing up provisions; even if it is done with the best of intentions, it can have negative repercussions in the field of freedom of information.

The freedom of collecting information also raises the question of the methods which are used. Especially the use of a hidden microphone or a hidden camera. The Danish Press Council has expressed the opinion that a hidden camera or microphone, as a principle, should not be used. However, it can be used, if the information cannot be provided for by other means, and only if the information is relevant for the society. I think that we all agree that hidden cameras should not be used, except under very special conditions, but we also have to realise that sometimes it can be necessary to use this way of getting information when we try to inform the public of matters of importance for the general public – not just for curiosity. We are quite satisfied with the decision of the Press Council, and I think that its reasoning can also be applied when we as broadcasters face a case of privacy.

When speaking of the freedom to collect information, I would like, finally, to mention one example from very recent Danish court practice, which demonstrates the daily practical value and importance of Article 10 of the European Convention of Human Rights. The case was as follows: a group of a activists fighting for the protection of the environment invaded a construction site where a big bridge was being built. They were accompanied by a camera team from a private television station in Copenhagen. The young activists were fined by the Court, but – with express reference to Article 10 – the Court freed the camera crew because they had acted in the interest of the public.

4. Freedom of dissemination of information

The freedom of collecting information and the freedom of disseminating information are of course strictly united to each other. In the field of dissemination of information I would like to mention a specific case, which again shows a situation, where the freedom of information is limited unintentionally, and where the result was that the European Court of Human Rights found that Article 10 of the Convention had been violated. (For those who are familiar with the practice of the Court it is the so-called Jersild-case).

The situation was the following: at a moment when the question of racism was not yet on the agenda of public discussion in my country, one of our reporters interviewed a group of young skinheads who presented very rude racist points of view. This brief report was brought in our daily news in order to illustrate to the public that the problem of racism was also a problem which affected the Danish society. Three different court instances in Denmark found that not only the young skinheads but also our reporter and the editor of the news had acted against an article in the Danish Criminal Act which prohibits the presentation and the dissemination of racist points of view. This article of the Criminal Act had been introduced as a consequence of a United Nations decision to fight racism. Finally the case ended here in Strasbourg, where the European Court of Human Rights found that the Danish authorities had violated Article 10 of the Convention by punishing our two collaborators. The Danish High Court resumed the case and freed our collaborators. But, again, this shows that you can easily – with the best of intentions – end up in situations which are in conflict with the freedom of information, when you make special provisions, which somehow touch the field of freedom of information.

Taking up the question of dissemination of information from the private sphere, I want to stress that broadcasters are very well aware of the delicate problems which arise in this field. Perhaps they are sometimes even too restrictive in their practice. I have an example from Danish practice, where this can be discussed. Some years ago it was a well-known fact among the journalists who worked in Parliament that the Prime Minister was privately seeing a lady, who was one of the leading persons of another political party. Not a single newspaper or broadcaster ever mentioned this, until the day the two decided to go public with their relation – and their subsequent marriage. Afterwards the President of the Journalists’ Union raised the question whether the press should in fact have informed the public about this relationship, as it might have had political significance. To my knowledge no editor took up this discussion. One can perhaps say, that the risk in this field is not so much the risk of publication of private information, but in some cases there might be a risk of self-imposed censorship, which deprives the public of relevant information.

Let me also add that in most broadcasting organisations it is well established practice to protect the individual against publications of which they cannot foresee the consequences. Television especially is such a strong medium, that one can not always expect the person in question to see the consequences of a statement they make. In this case it is the duty of the broadcaster to protect the individual.

Many of the questions of possible conflict between the freedom of information and other human rights, should also be seen in the light of internal procedures in the broadcasting organisations concerning their programming, which guarantee that difficult decisions are normally taken at a high level by people who have a long experience in this field. It is a clear obligation for a journalist to use the refer-up system, whenever he is in doubt. This is perhaps one of the main reasons why these cases of conflict between the freedom of information and the protection of the private sphere are so relatively rare.

5. Freedom to self-regulate professional journalistic conduct

Most newspapers and broadcasters have internal codes of conduct. They vary very much as to how detailed they are. Some organisations prefer very detailed rules which can guide the journalist, others prefer more general rules which leave more room for concrete evaluations. Personally I prefer the more general rules. In my experience they can work very well, especially in liaison with the refer-up system.

From my experience in Danish broadcasting I have learnt that very detailed rules can easily lead to a limitation of the freedom of information. I have myself as a young lawyer in my organisation formulated a very detailed answer to a member of our Radio Council who had criticised a concrete programme. Afterwards it resulted that this concrete answer to a series of concrete questions was later used against us in numerous other cases, where one could reasonably discuss whether this first statement was really valid also in a slightly different situation. The consequence was that a big bureaucratic system grew up in order to be able to answer all sorts of questions, and with the consequence – which was much more serious – that some of our journalists avoided producing controversial programmes, simply because of the administrative burden which the subsequent discussion would impose on them.

In my view it is sufficient to have a few general guidelines, and then to give room for practical adaptation of these rules in the different concrete cases.

It is also my experience that the broadcasters themselves can very well handle these problems without interference from outside. For many years the Nordic broadcasters in their practice concerning rectification worked on the basis of a common set of rules elaborated by the 5 broadcasters in common. I have also the experience that the relevant actors on the media scene can very well act together in this field : the actual code of conduct for the Danish media was elaborated through co-operation between the editors in the written press, Danish Broadcasting and the association of journalists. This was done without any interference from outside.

Let me also add that the broadcasters of course also discuss these matters in their international organisation. The European Broadcasting Union is currently working on a collection of the different codes of conduct, in order to give all its members material which can be useful if a broadcaster wants to see how colleagues deal with a difficult problem.

6. Concluding remarks

From all I have said you can understand that I am very hesitant towards any attempt to make recommendations which affect the field of freedom of information. The freedom of information as well as its limitations are very well formulated in Article 10 of the European Convention of Human Rights, and those who deliver information are very well aware both of their rights, and of their duties. One should not forget that all our countries have legislation which protects the privacy of the individual. These two instruments: the Convention and national law are, in my opinion, quite sufficient to regulate this field.

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The right of the public to know and freedom of entertainment: information seen from the consumer’s angle

Toby Mendel, Head of Law Programme, Article 19, London
 

Introduction

The death of Diana, Princess of Wales, in August 1997 brought about renewed calls for greater protection for privacy and a shift in public perception about the role of the media and the importance of freedom of expression. These calls have focused on the intrusive nature of the Paparazzi and new technological developments, particularly visual and auditory enhancement devices.64 It is perhaps instructive to recall Warren and Brandeis’ reaction in 1890 to the “latest advances in photographic art” which for the first time made it possible to “take pictures surreptitiously,” that is, without a formal sitting:

Of the desirability [of legal protection for privacy] there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. ... To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily newspapers.65

Ironically, Diana’s death occurred in France, a country with some of the strongest privacy laws in Europe. This illustrates an important point, which is that the debate about freedom of expression and privacy, though a matter of the greatest importance, is plagued with emotional calls for immediate action. These are very complex issues and it is essential that governments base their policy in this area on a realistic appreciation of the competing interests and the legal and social framework in which they operate. The British Government wisely resisted calls for legislation in the aftermath of her death and it may have been unwise for the Parliamentary Assembly of the Council of Europe to pass a resolution on privacy in such a haste.66

In many constitutions and under international conventions, privacy is protected as a human right. Courts, including the European Court of Human Rights, have elaborated the scope of this right. These cases, however, rarely involve conflicts between privacy as a human right and freedom of expression. As this paper illustrates, these cases focus primarily on State interference with privacy interests, for example through unwarranted surveillance or search and seizure actions.

Conflicts between privacy and freedom of expression commonly arise where non-State actors, such as the media or authors of books, publicise private matters. Publishers may claim that the revelations were a matter of public interest or that the individuals involved had forfeited their privacy interest by leading very public lives. The legitimacy of these claims has been tested in a number of cases in countries which provide legal protection for privacy. In such cases, courts have had to balance privacy interests against constitutional or international guarantees of freedom of expression. This paper will look at the way courts have balanced these interests, proposing a number of factors that need to be taken into account.

Complicating Factors

Balancing freedom of expression and privacy is complex for a number of reasons. First, there is still no real consensus on what the right to privacy embraces.67 Warren and Brandeis defined it as “the right to be let alone”.68 The Canadian Supreme Court has defined it as “the narrow sphere of personal autonomy within which inherently private choices are made”.69 The European Court of Human Rights has eschewed definition, stating: “The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of ‘private life’.”70

Second, the legal status of these interests varies depending on the context. Both are human rights, guaranteed for example by the European Convention on Human Rights (ECHR). But human rights guarantees relate primarily to the relationship between individuals and States, whereas privacy interests, as has already been noted, are commonly under threat from other individuals, particularly the media. As a result, balancing is usually a matter of assessing a privacy law which restricts freedom of expression. In such cases, the precise legal status of the privacy interest needs to be carefully assessed.

Third, any effort to balance privacy and freedom of expression interests ultimately has to take into account the amorphous concept of the public interest. Courts around the world have struggled to define the public interest, both generally and in the specific context of each case and issue. While courts have noted that the public interest is not necessarily what the public is interested in,71 it is difficult to define the concept in a positive way.72

Fourth, a variety of legal and social mechanisms are available to protect privacy interests. Invasion of privacy is a crime or civil wrong in some countries,73 while in others it is addressed primarily as a matter of journalistic ethics, either through statutory media councils or self-regulatory bodies.74 Restrictions on freedom of expression are legitimate only if they are carefully tailored to serve a pressing social need.75 This implies that only the least intrusive effective means of protecting interests, including privacy, are acceptable. Restrictions on freedom of expression to serve privacy interests must, therefore, take into account all available options.

Privacy as a Human Right

It is important to distinguish between privacy as a human right and privacy interests as the object of statutory protection. Human rights serve to protect interests which are fundamental to human dignity. They are enshrined in constitutions and in international law and their status is such that States may pass no laws or take any action in breach of their guarantees. The protection provided by ordinary laws is of a lesser order. Ordinary laws may provide, for example, for certain contractual or delictual rights. Criminal laws prohibit certain types of conduct, such as littering or drunk driving. These laws, however, are not constitutional in nature and have no overriding status.

Privacy is clearly protected as a human right, under many constitutions and also by Article 8 of the ECHR. It is submitted, however, that the scope of this protection is limited and that it does not extend to many of the issues which commonly arise in the debate about privacy and freedom of expression.

Human rights govern primarily the relationship between individuals and States. Thus, Article 8(2) of the ECHR proclaims that there shall be “no interference by a public authority with the exercise” of privacy rights, subject to certain narrowly drawn exceptions. The European Court of Human Rights has emphasised in a number of judgements that “the object of [Article 8] is ‘essentially’ that of protecting the individual against arbitrary interference by the public authorities”.76 The Canadian Supreme Court has noted an important reason for this:

The decisions of this Court ... recognize that there is a fundamental difference between a person’s reasonable expectation of privacy in his or her dealings with the state and the same person’s reasonable expectation of privacy in his or her dealings with ordinary citizens.77

In a series of judgements, the European Court has noted a number of types of State interference with private life, including laws prohibiting homosexual conduct,78 interception of telephone conversations79 and search and seizure operations.80

In general, this negative obligation does not, due to its very nature, come into conflict with freedom of expression. This is because it prohibits State actions which interfere with privacy rather than actions, including speech, by individuals. One area of potential conflict is in relation to information. Although the jurisprudence of the European Court of Human Rights has been somewhat ambivalent on the subject,81 ARTICLE 19 considers that the right to freedom of expression comprises a general right of access to information held by public authorities. This potentially conflicts with individuals’ interest in not having private information about them made public. It is quite clear, however, that here the privacy interest prevails and all freedom of information acts include an exemption for private information.82

The Court has also recognised limited positive obligations on States to ensure effective respect for Article 8 rights, including privacy: “in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life”.83 Three factors limit the relevance of this to the question of balancing privacy and freedom of expression.

First, the Court has generally been cautious in finding positive obligations:

[E]specially as far as those positive obligations are concerned, the notion of “respect” is not clear-cut .... Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation ....84

In addition, “the choice of means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation.”85 This means that it is up to States to decide how to protect Article 8 interests. Although the Court might theoretically question the adequacy of this protection, in practice this is rare, as we shall see.

Second, the Court refers to positive obligations in two quite different situations. Most commonly, the Court uses positive obligations in cases in which “it is not that the State has acted but that it has failed to act”.86 These cases deal with the relationship between individuals and the State, or the ‘vertical’ application of rights. Gaskin is an example of this, where the Court held that a public authority was obliged to release certain personal information to protect a privacy interest.87

On the other hand, in a small number of cases, the Court has referred to States’ positive obligation to regulate relations between non-State actors, the ‘horizontal’ application of rights. In such cases, it is not the relationship between the State and an individual, either because of an action the State has taken or the failure of a State to act, that is in issue. Rather, the claim is that the State has failed to regulate relations between non-State actors, in particular by failing to provide a legal remedy against privacy invasions. Even in these cases, however, there has generally been some direct State involvement. For example, in López Ostra, the Court held that the failure of the authorities to take action to prevent the detrimental effects of severe environmental pollution arising from a waste-treatment plant breached Article 8. However, the Court specifically noted that the legality of the plant under Spanish law was in question and focused on the fact that the authorities had not only failed to protect Mrs. López Ostra but had also contributed to prolonging the situation.88 In X and Y v. Netherlands,89 the Court held that a civil remedy was insufficient to protect individuals against sexual assault and that a criminal remedy should be available. However, the Netherlands did normally provide a criminal law remedy for sexual assault – it was not applicable in this case only because the victim was mentally handicapped.

Third, the Court has not yet considered a privacy claim which involved restrictions on freedom of expression, so they have not yet had to undertake a balancing exercise. It must be assumed that the Court, already cautious about inferring positive obligations, would be even more so where such an obligation would limit other rights, perhaps particularly freedom of expression.

The question of States’ obligation to provide positive, horizontal protection for privacy by limiting individuals’ freedom of expression has arisen directly in two applications to the European Commission. In W. v. United Kingdom,90 the applicant complained that under British law he had no effective remedy for gross invasions of his privacy from certain statements published in a book. The statements included very intimate references to the applicant, and his wife and marital life. The Commission noted that he had received compensation for defamatory statements but held that this did not exhaust the privacy claim. However, the Commission rejected the application as manifestly ill-founded. Although the law did give greater protection to freedom of expression, the applicant’s privacy did find some protection in the law of defamation and his own liberty to publish. This illustrates the very low burden States have to discharge where a claim for horizontal protection for privacy is balanced against freedom of expression.

Earl Spencer and Countess Spencer v. the United Kingdom,91 raised a very similar issue. Three British newspapers had published stories and photographs about the Spencers, focusing on the treatments the Countess was having for eating disorders and referring to a number of martial problems. The UK Press Complaints Committee had upheld complaints against the newspapers and all three published an apology. Despite this, the applicants applied to the European Commission, claiming that the United Kingdom was in breach of its obligations for failing to provide an effective remedy against intrusions by the media into their private lives. In this case, the Commission held that the applicants had failed to exhaust domestic remedies by not bringing breach of confidence actions against the newspapers and did not, therefore, deal with the case on its merits.

The jurisprudence of the European Court illustrates a reluctance to impose positive obligations on States and a willingness to allow States a great deal of freedom in deciding how and how far to protect privacy interests. Threats to privacy from the exercise of freedom of expression usually involve non-State actors such as the media or publishers. In general, positive obligations have been imposed only in the context of vertical rights claims, involving a public actor. Where claims of a breach of Article 8 have involved the exercise of freedom of expression by non-State actors, the European Commission has demonstrated a clear preference for freedom of expression, declaring one application manifestly ill-founded even though the national law favoured freedom of expression.

Balancing Privacy and Freedom of Expression

As noted above, legal conflicts between privacy and freedom of expression rarely arise in cases based on privacy as a human right. Such conflicts are far more common in the converse situation, where a law protecting privacy is being challenged as an unacceptable restriction on freedom of expression. This is perhaps natural given that the vast majority of cases involving privacy are claims between individuals for redress for breach of legally protected privacy interests.

Privacy laws, where they restrict freedom of expression, must meet the three part test for such restrictions outlined by the European Court.92 In particular, the restriction must be “necessary in a democratic society” in the sense that it serves a pressing social need, the reasons given to justify it are relevant and sufficient and it is proportionate to the legitimate aim pursued.93 In particular, States are obliged to ensure that the measures adopted to serve a legitimate aim are carefully designed and do not go beyond what is necessary to achieve the objective.94

Chilling Effect

Regardless of the test one seeks to apply, it is clear that in assessing privacy laws as restrictions on freedom of expression, courts cannot focus only on the narrow interests that are present in an individual case but must take into account the broader implications of their decision on freedom of expression. In particular, courts must look at whether a particular standard or approach which is being advocated might, if adopted, potentially deter the media from publishing information in the public interest in future. This is known as the ‘chilling effect’, something that courts around the world, including the European Court, have frequently adverted to. In particular, courts have noted that restrictions prevent not only harmful expression but also a penumbra around the prohibited zone as journalists and editors steer well clear of it to avoid even the possibility of legal sanction.

A key consequence of the “chilling effect” is that it is better to tolerate some excesses in expression, even where they may cause some harm, than to limit publication in the public interest. This is clear from the following quotation from James Madison, cited by the US Supreme Court. It may be noted that this quotation dates from 1931, long before US courts elevated freedom of speech to the pre-eminent position it now occupies:

Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding the proper fruits.95

The Public Interest

Courts have identified four different types of privacy interest worthy of protection: unreasonable intrusion upon the seclusion of another, appropriation of one’s name or likeness, publicity which places one in a false light and unreasonable publicity given to one’s private life.96 Conflicts with freedom of expression have arisen most commonly in relation to appropriate of one’s name or likeness and unreasonable publicity given to private life. In these cases, the basic issue is whether publication can be justified in the public interest. Although no clear definition of public interest has emerged, the case law points to a number of relevant factors. To avoid a chilling effect, the public interest must be defined broadly so that journalists and editors are not forced to make excessively fine distinctions with the result that the flow of important information to the public is diminished.

The public interest is a notoriously vague phrase which is probably incapable of precise definition. I will not attempt to define public interest but I will note some factors that are relevant when assessing whether or not it is engaged. Perhaps most importantly, discussion of matters of public interest should not be restricted in the name of privacy interests. As has already been noted, this means that the public interest should be defined broadly. Indeed, it may be noted that in other areas which engage a freedom of expression interest, such as defences against claims of defamation, courts have interpreted the public interest very broadly.

Many cases in which privacy interests arise involve a public figure and such cases usually engage the public interest. As was noted at the outset, public figures often play an important social role and this should be taken into account in determining whether the public interest is engaged. It is also important to allow a certain latitude to journalists and editors here. In several cases, the European Court has indicated that it will not second guess journalists about matters that are central to their job, such as the most appropriate manner to present information to the public.97 This is relevant to privacy, as well, as part of the job of editors is precisely to determine what material is of public interest.

Regarding appropriation of one’s name or likeness, in a number of French cases, courts have held that everyone, including politicians, has an absolute right to his or her image.98 In these cases, however, it would appear that the use of the images was purely commercial. In another case, where the images were used as part of a story about a famous photographer, thus arguably engaging the public interest, the court weighed the competing interests more carefully. In holding that pictures taken while the plaintiff was on a yacht violated a privacy interest, the Court noted that the boat was not on a port or near a beach, so that its occupants had a reasonable expectation of privacy.99

A Canadian case, Aubry v. Éditions Vice-Versa Inc.,100 involved a claim based on the right of an artist to publish photographs without the consent of the subject. In that case, the photograph was of an unknown 17-year old in a public place. The majority of the Supreme Court noted:

The public’s right to information, supported by freedom of expression, places limits on the right to respect for one’s private life in certain circumstances. This is because the expectation of privacy is reduced in certain cases. ... Only one question arises, namely the balancing of the rights at issue. It must, therefore, be decided whether the public’s right to information can justify dissemination of a photograph taken without authorisation.101 [emphasis added]

The Court noted a number of circumstances in which freedom of expression might prevail, including where the subject is a public figure or “whose professional success depends on public opinion”, where a previously unknown individual is called upon to play a high-profile role and where the individual is accidentally or incidentally included in a photograph, for example as part of a crowd.102 In the circumstances of the case, it would have been relatively simple for the photographer to have obtained the consent of the subject, perhaps by paying him, so the privacy interest prevailed.

The Court’s reference to cases where “success depends on public opinion” bears further scrutiny. It is certainly the case that the success and marketability of many modern celebrities is largely dependent on their ability to remain in the public eye which, in turn, depends on their frequent portrayal in the media. A great deal of money and effort is spent trying to attract media interest, including by publicising events which are normally considered to be very private, such as weddings or the breakdown of relationships. This begs the question of whether such individuals, having opened up their private lives to public scrutiny in pursuit of fame and wealth, can simply decide to exclude the media whenever it suits them. The phrase, “he who lives by the sword shall die by the sword” is harsh, but perhaps not entirely inappropriate here.

In this regard, it is significant that in the Spencer case, noted above, the UK Press Complaints Commission held that Earl Spencer’s past relationship with the press – namely of seizing every opportunity to put himself in the public eye and of selling private stories to the media – affected his right to privacy. This did not, however, mean the press were free to publicise private details regarding his wife.

The most contentious area of conflict between privacy and freedom of expression is almost certainly the scope of the prohibition on unreasonable publicity of one’s private life, which to some extent comprises publicity which places one in a false light. The standard commonly applied in this context in the United States is whether the matter publicised is of a sort that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.103

One issue which has frequently arisen before the courts is whether bans on publication of certain material raised in legal proceedings, particularly the identity of rape victims, breach the guarantee of freedom of expression. Another is the use of visual or auditory enhancement devices, which effectively allow for collection of information that would normally be unavailable without committing a trespass.

Two Canadian cases provide some insight into the permissible scope of court publication bans. In one case, the Supreme Court struck down a wide ban on publishing matters relating to marital cases.104 The Court quoted with approval from an earlier judgement:

Many times it has been urged that the ‘privacy’ of litigants requires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. ... As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.105

The Court went on to say that in modern society, the openness of court processes was effectively guaranteed by the media, so broadly to prevent publication was effectively to close the court to the public. While privacy was a “pressing and substantial” concern, such interests could be met by vesting a discretionary power in judges to prevent publication of certain matters.

In assessing the nature of the privacy interest at stake, Wilson J. made an interesting point. The press are generally only interested in publishing details about individuals’ private lives in two instances: where the individual is well-known or where the activities involved were somewhat abnormal, in the sense of immoral or aberrant. In other words, legal protection is not necessary to protect the privacy of the vast majority of people.

In Canadian Newspapers Co. v. Canada (Attorney General), the Supreme Court upheld a provision that required a judge, upon request, to ban the publication of information that would identify the victim in sexual assault cases.106 The provision did not leave the judge any discretion, unlike similar provisions in other jurisdictions. However, since the goal of the provision was to encourage reporting of sexual assault, and since victims would need to be sure in advance that their identity would not be publicised, the mandatory ban was justified. In addition, the ban did not prevent the media or members of the public from attending trial proceedings or from otherwise reporting on the trial. It is perhaps significant, however, that the privacy of the victim was not considered to be the objective of the provision; the aim was to “favour the suppression of crime and to improve the administration of justice.”107

The US Supreme Court has come to a different conclusion in two cases, albeit on very narrow grounds, and has protected the publication of the names of victims of sexual assault.108 In both cases, although significant weight was attached to the privacy interest in question, the Court focused on the fact that the defendant had obtained the information legally from a public authority. In Cox Broadcasting, the defendant obtained the name of the victim by examining the indictments which were available for public inspection. In The Florida Star, the name of the victim was included in a police report which had been placed in the Sheriff’s Department’s pressroom. A crucial consideration for the Court was that the government could have safeguarded the information by not releasing it in the first place, a less drastic solution than punishing publication. This was particularly the case, given that the issue was generally a matter of public interest. In addition, the laws in question did not require that publication be highly offensive, a requirement normally associated with US privacy laws, as noted above.

In 1999, California passed so-called “anti-Paparazzi” legislation banning both physical and constructive invasion of privacy.109 The latter extends the existing law by providing for a right of action in cases where visual or auditory enhancing devices are used to record personal or family activity that could not otherwise have been obtained without committing a trespass. Significantly, even the Council of Europe Parliamentary Assembly Resolution on the Right to Privacy limits liability for the use of enhancement devices to situations where the information could not otherwise have been obtained without committing a trespass.110

The California law limits the scope of constructive invasion of privacy to situations where the attempt is offensive to a reasonable person and where the individual being recorded had a reasonable expectation of privacy. Investigations into illegal activities, whether undertaken by public or private bodies, including the media, are exempted. In addition, broadcasters and publishers are not liable for using actionable material unless they were involved in the breach.

Resolution (74) 26 of the Committee of Ministers of the Council of Europe also provides some guidance as to the factors to be taken into account in balancing privacy and freedom of expression interests. That Resolution recommends effective remedies against the publication of material which interferes with a privacy interest unless consent has been given, publication is in the circumstances a generally accepted and legal practice or, significantly, publication is justified by an overriding legitimate public interest.

These cases, laws and resolutions suggest a number of factors to be taken into account when assessing the legitimacy of privacy laws which restrict freedom of expression. A recurring theme is that publication should generally be allowed where the material relates to a matter of legitimate public concern. Publication of material of significant social interest, for example relating to illegal activities, should be absolutely protected.

Another consideration is whether the individual in question had a reasonable expectation of privacy, based on location and other circumstances. Public figures should tolerate a greater degree of intrusion into their private lives than ordinary citizens. This is particularly apposite in relation to individuals whose professional success depends on public opinion, especially where they have willingly exposed themselves to media scrutiny of their private lives.

Special considerations apply to constructive invasion of privacy, using visual or auditory enhancement devices. Here, it seems to be accepted that a reasonable expectation of privacy extends to situations where the information could not otherwise have been obtained without committing a trespass. Otherwise, however, no special liability should flow from the use of such devices.

Privacy laws should prohibit only the publication of material that is offensive to a reasonable person. This ensures that restrictions on freedom of expression are based in general societal values rather than special sensitivities asserted by individuals. Significant in this regard are established journalistic standards or, to use the words of the Committee of Ministers, situations “where publication is in the circumstances a generally accepted practice”. It may be assumed that publication will rarely be offensive to a reasonable person where it can be shown to be an accepted professional practice.

The US rape victim decisions raise the question of State responsibility for invasions of privacy. Where a public authority has somehow been complicit in publication, for example by providing information that it could have kept secret, it seems unreasonable to impose liability on the media. In particular, effectively shifting responsibility to the media in such cases cannot be considered to be necessary in a democratic society.

The balancing of interests takes on a slightly different hue where reporting of court matters is involved. Here, the interest in securing open access to the courts may complement the privacy interest in prohibiting publication. On the other hand, the fundamental importance of openness of the courts is a countervailing consideration. While it seems reasonable to prohibit the publication of certain individuals’ names, for example juveniles and victims of sexual assault, it is more difficult to justify broader publications bans, particularly where these relate to court processes or issues before the courts.

Remedies

The above reasoning should not be taken as an argument that individuals should not have a remedy in cases where their privacy has been infringed. This would be contrary to the practice and principles established in every country in Europe. However, the scope and nature of remedies are also limited by the guarantee of freedom of expression. In particular, authorities should only prescribe the least intrusive, effective remedy in any given situation.

Many countries provide for civil and even criminal sanctions for invasions of privacy. It is significant, however, that Princess Diana died in France, a country with some of the strongest privacy laws in the world. This implies that such laws may not be as effective as their proponents argue. It has been noted that the pictures that the paparazzi were taking that day could not be published in France and that standardisation of privacy laws would solve the problem. I suggest that this would be almost impossible in practice even within Europe, due to widely diverging views about the importance or otherwise of protecting privacy in this manner. One might in any case question the effectiveness of even pan-European privacy laws, given the global nature of the media business, and the easy availability of information across frontiers. In addition, it may be noted that civil law remedies are in practice inaccessible to the vast majority of the public, so they are not the panacea that some claim.

In certain countries, such as the United Kingdom, self-regulatory or professional mechanisms provide the primary remedy for an invasion of one’s privacy in the media. I submit that these remedies are largely, albeit not entirely, effective in preventing the worst abuses by the media without unduly restricting freedom of expression, and that they should, therefore, be promoted.

Conclusion

Although privacy is often referred to as a human right, conflicts with freedom of expression are far more common in the context of privacy as the subject of statutory protection. This is because as a human right, privacy relates primarily to State, not private, actions. The obligations human rights guarantees impose on States to protect individuals against possible invasions of their privacy by other individuals are very limited.

The need to balance these key interests arises most commonly where privacy laws restrict freedom of expression. Broadly speaking, the balance between privacy and freedom of expression depends on one’s assessment of what the public interest demands. Some indication as to the content of this notoriously vague phrase can be gleaned from the jurisprudence. Factors to be taken into account include whether the subject matter is of legitimate public concern, whether the circumstances give rise to a reasonable expectation of privacy, whether publication would be offensive to a reasonable person and any role public authorities have played in the publication.

Constitutional and international guarantees require that restrictions on freedom of expression, even in the interests of privacy, must meet a high standard of legality and necessity. This implies, among other things, that States must use the least intrusive means available to protect privacy interests. Given the signal failure of strong criminal and civil privacy laws in France to protect Diana, Princess of Wales, one cannot help wondering whether ethical self-regulation is not a more appropriate way of addressing these concerns.

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CHAPTER III: THE RIGHT TO THE PROTECTION OF PRIVACY 

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The protection of privacy and personal data and the right to use one’s image and voice: when does the dissemination of information become an interference with a person’s life?

Eric M. Barendt, Goodman Professor of Media Law,
Vice Dean of the Faculty of Law, University College, London
 

1. Introduction

Privacy is now widely recognised as a fundamental human right, guaranteed by the Universal Declaration of Human Rights and by the European Convention (ECHR). In most European countries it is protected at the constitutional level (Germany, Spain, Portugal) or under the Civil Code, interpreted by judicial decision (France, Italy), or by a mixture of constitutional provision, general and specific legislation. The English and Scottish legal systems are unusual in that they have hitherto not recognised autonomous rights of action to protect privacy.

However, individuals in England may protect privacy by other remedies, in particular by the equitable jurisdiction to prevent a breach of confidence. An action may be brought to stop the disclosure of confidential information, that is, generally information disclosed by the confidant to another person in the course of a confidential relationship; an injunction may be obtained to stop the publication of such information by third parties, including the press and other branches of the media, who know or should have known that it is confidential. In a number of recent cases, the courts have suggested that the action can be used to stop the publication of personal information or photographs, whether or not it was originally disclosed by the claimant to another person in the course of a confidential relationship111. The European Human Rights Commission recognised the similarity between breach of confidence and privacy, when it held inadmissible an application by the Earl and Countess Spencer; they had argued that UK law violated Article 8 of the ECHR in failing to provide a right to privacy, but the Commission held that they should first have exhausted domestic remedies by bringing an action for breach of confidence.112

Privacy is also to an extent protected in the United Kingdom by recourse to extra-legal remedies: a complaint to the Press Complaints Commission (PCC) or to the Broadcasting Standards Commission (BSC), though these institutions, unlike courts, can neither grant an injunction to stop an anticipated infringement of privacy nor can they award compensation or damages to the victim. Moreover, aspects of the privacy right are frequently protected by specific legislation, notably that introduced to regulate telephone tapping and other illegitimate interception of communications (Interception of Communications Act 1985) and, more recently, to regulate the storage, use, and distribution of personal data (Data Protection Acts 1984 and 1998). It has indeed been frequently debated in the United Kingdom whether it is better to use specific legislation to provide remedies for particular types of privacy infringement, or whether it is more appropriate to rely on judicial interpretation and development of general provisions in a Civil Code. Recent governments have been nervous of introducing statutory rights of privacy against the press (and other media), but it is likely that the courts will soon develop an autonomous right, encouraged to some extent by the incorporation of the ECHR by the Human Rights Act 1998.

Section 2 of this paper makes general observations about the right to privacy and the reasons why it is generally protected in developed legal systems. In Section 3 I discuss the difficult question of definition: how is, or should, privacy be defined? What is covered by the right to privacy? This is an important question, because once it has been decided that the publication concerns a private matter, it is for the media to prove that publication is in the public interest. But it is for the claimant to show in the first place that the publication disclosed personal or private information. Finally in Section 4 I make a few remarks concerning how the right should be balanced against the freedom of expression and information, though this topic will be explored in the Round-table discussion at the end of the programme.

2. What is 'privacy' and why should it be protected?

In comparison with the right to reputation, protected by defamation and libel laws, the right to privacy is relatively new. In the Anglo-American legal world, it did not emerge until the end of the nineteenth century, when a famous law review article in the Harvard Law Review by Warren and Brandeis argued that the common law implicitly recognised a right to privacy and that it was now time for the law explicitly to uphold this right in view of the increasing tendency of the press to spread gossip and scandal about prominent political and social figures.113 Several states in the USA have adopted a privacy right, either as a result of legislation or by judicial decision, although (as earlier mentioned) a parallel development has not yet occurred in England. In Germany the right only clearly emerged from judicial decisions in the 1940s and 1950s; in France the right was put on a statutory basis as recently as 1970, although earlier court decisions had recognised it. Legally speaking, therefore, the right is a child of the mass media age. It reflects the need which most people feel 'to be let alone' by the press and broadcasting media, their desire not to be harassed or observed by journalists and camera-men. At the same time, technical developments have made an invasion of privacy by long-range cameras, bugging devices, and electronic data banks considerably easier, whether the violation is committed by the media, the police, banks or credit agencies. These developments have not only made more imperative the need to develop privacy rights in their traditional form, but also influence the scope of the right (see Section 3(vi) below).

The legal right to privacy has to some extent developed from a general right to the free development of the personality, guaranteed in Germany by Article 2 of the Basic Law, 1949. Broadly, the justification for recognition of the privacy right is that without its protection, individuals could be deprived of their capacity to think or reflect free from public observation and intervention. Further, they would be inhibited from forming and developing intimate personal, particularly sexual, relationships, unless as a couple (or perhaps a group) they could secure some space for themselves. This idea was captured by the European Court in Niemetz v Germany, when it said: 'Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.'114 Privacy can also be derived from the fundamental right to human dignity, a right which the German Basic Law regards as inviolable (unantastbar).115 Ideas which are frequently linked to 'privacy' are such concepts as 'intimacy', 'autonomy', or 'the right to individual liberty'.

But these points reveal a central difficulty in applying the privacy right. How does one distinguish the right to privacy, from general rights to the development of personality, to liberty or autonomy, the recognition of which would seriously limit the ability of government to enact measures for public welfare. This difficulty is illustrated legally by the recent decision of the European Court of Human Rights in Laskey, Jaggard & Brown v UK,116 when it doubted whether sado-masochistic sexual activity conducted behind closed doors was covered by the ECHR right to respect for private life, guaranteed by Article 8. Such activity clearly falls under a general right to personal liberty or the right of individuals to choose their (sexual) life-style, but it is less clear that it is an aspect of the right to privacy. Much of the difficulty in formulating a precise definition of 'privacy' is attributable to this basic uncertainty how we should distinguish privacy from broader rights to the development of personality, to liberty or autonomy.

This point is most relevant in the context of such questions as whether, or to what extent, the right to privacy covers a right to an abortion or a right for transsexuals to official recognition of their sexual identity. (This latter question has given rise to a number of cases before the European Human Rights Court, notably Rees v UK,117 B v France.)118 But it is also relevant to the scope of privacy against the media, in particular in determining what information an individual is entitled to keep private as essentially 'personal'. On a broad view of the scope of privacy - the view which sees privacy as closely linked to concepts of autonomy and individual liberty - it might be for the individual him/herself to determine which information is 'personal' and therefore covered by the right to privacy. Consequently, a celebrity or politician might be entitled to keep, say, information derived from school or college records - of attendance at school, examination results, reports - private or confidential, simply because he or she regards it as personal information to which the public should have no access. But it can be argued that this broad view empties the term 'personal information' of any meaning; information is personal simply because the individual chooses that it should be regarded in this way. Such a broad view of privacy must be wrong, just as it would be wrong for newspaper editors to argue that freedom of expression or of the press covers everything they want to print in their paper. But unless the law forms a view of what information is really 'personal', and how the right to privacy is to be distinguished from broader rights to personal liberty or individual autonomy, it will be easy to make this mistake.

The right to privacy should not only be distinguished from broad rights to liberty and autonomy, they should also be distinguished from commercial and intellectual property rights. In the first place, it is different from what is known in the United States as the right to publicity, that is the right to exploit some essential attribute or feature for commercial purposes. Sports personalities, film stars, and other celebrities market their image, voice, distinctive gestures or expressions to promote goods or for commercial advertising; if a rival company uses that attribute without permission, the celebrity can bring an action for infringement of a right to publicity. The privacy right and publicity right have been confused, largely because the latter emerged in the 1950s in the United States from one type of privacy tort - the appropriation of a name or image for commercial purposes.119 Privacy is a fundamental human right which both in principle and in practice should be enjoyed by everyone; the right to publicity is a commercial or property right recognised in the United States and to a limited extent in other jurisdictions, but not generally upheld in European jurisdictions and certainly not covered by Article 8 of the ECHR.

Privacy should also be distinguished from intellectual property rights. There is, for instance, a difference between the right of a photographer or cinema director to exclusive rights to reproduce or distribute a photograph or film on the one hand, and on the other the right everyone enjoys not to have a likeness published in circumstances which amount to a violation of privacy. The former is a property or commercial right, the latter a fundamental human right. The difference can be illustrated by reference to a moral rights provision in the United Kingdom copyright legislation. It gives the person who commissions for private or domestic purposes the taking of a photograph or the making of a film, in which copyright exists, a right not to have the work published.120 This is entitled a 'right to privacy of photographs of certain photographs and films'. But it is really a mixture of a privacy right and a property right, replacing the copyright which had been held by the person who commissioned the photograph under earlier legislation.121 A true privacy right would give protection against the publication of a photograph in circumstances where privacy is infringed, whether or not the photograph was commissioned by the claimant and irrespective of the subsistence of any copyright in the work.

3. The definition of privacy for the purpose of privacy laws

In the United Kingdom one of the most common objections to the introduction of a privacy law has been that the concept or right of privacy is impossible to define with sufficient precision to make the application of the law predictable.122 (The other objection, of course, is that it would interfere with the freedom of the media to report on matters of legitimate public interest.) In my view, the difficulties have been considerably exaggerated. It would be possible for legislation to list the categories of matters which might be covered by the privacy right, for example, personal correspondence, diaries, intimate photographs, medical records, and so on. Such a list should not be exhaustive, so courts would be free, when appropriate, to hold that some item of information not covered by any of the explicit headings could be protected. But the headings would give the media some idea of what information should normally not be published (in the absence of a clear public interest in its disclosure). Legislation should, in my view, provide some guidance of this kind, rather than simply stipulate that the right to privacy or intimacy of private life is protected.123

At the same time it would be wrong to ignore the real difficulties in arriving at a satisfactory definition. In this section of the paper, I explore briefly some difficult cases.

i. Anonymity. In what circumstances, if any, should the law allow an individual anonymity, so that, at least in the absence of a compelling public interest in disclosure, the media should not be free to identify him? This question is most often discussed in the context of legal proceedings where defendants, or the parties to civil litigation, frequently claim anonymity. Leaving aside the special circumstances of youth proceedings (to be resolved by the European Court soon in the James Bolger murder case), English courts are reluctant to allow anonymity, unless there is a clear risk to life or physical security. It is clear that personal or financial embarrassment as a result of being associated with the proceedings is not recognised as a sound argument for restricting the freedom of the media to identify and report the names of the parties. This is particularly the case for claimants or applicants who are assumed to take the risk of publicity when they initiate legal proceedings.124

An interesting issue arose five years ago in an entirely different context. Under the terms of the licence to operate the National Lottery, the organisers, Camelot, must obtain written consent of prize winners to disclose their identities. At the end of 1994 there was enormous media interest in the identity of the winner of £17.8m, at that time the largest sum awarded. Three tabloid newspapers identified him. The Press Complaints Commission held that inquiries into the financial affairs of individuals do come within 'private life' and can only be justified when in the public interest; the size of the win would not necessarily justify publication. Normally, the press should respect a lottery winner's expectation of anonymity.125 Prize winners were given this expectation by the terms of Camelot's licence incorporated as a term of the purchase of lottery tickets. But it is unclear otherwise how far personal wealth, earnings, or prize winnings should be regarded as matters of 'personal' or 'private' information.126

ii. Information about a person's health, physical or mental. It is generally agreed that this should be regarded as essentially private, so any disclosure of health records or details must be justified. The PCC decided that to take and publish photographs of the Countess Spencer walking on the grounds of a clinic which treated alcoholics infringed her right to privacy.127 Matters of health fall within the concept of 'private life'. The French courts have taken the same view, most famously in the decision preventing publication of a book, Le Grand Secret, by President Mitterrand's doctor which discussed his terminal illness.128 Moreover, the European Court has held that the protection of medical data is of fundamental importance to a person's enjoyment of his right to respect for private life.129

It is unclear whether this should apply in the same way to the disclosure of the medical histories of current holders of political office. Should the press be required to justify a particular publication as being in the public interest, or should the law take the view that a politician's health is always a matter of legitimate public interest and concern, as there may be presumed to be a link between his health and his ability to discharge public office - a connection which is less clear in the case of intimate personal or sexual relationships?

iii. Membership of, and donations, to churches, political parties, and other associations. This is more controversial than the previous category. Some French authors consider that membership of religious denominations is prima facie a private matter; certainly there may be strong historical and cultural arguments for this perspective. But it is hard to see why active membership of a church or other religious association should not be a matter for legitimate inquiry and comment by the media, at least in the context of politicians, public officials, and perhaps some public figures. Moreover, the argument that donations to political parties are a private matter is surely misconceived. That argument used to be made by leading Conservative politicians in the United Kingdom but few take it seriously now.

iv. Photographs. Intimate, personal photographs should be covered by the right to privacy. It is, therefore, clearly an infringement of the right for the media to take, and/or publish, photographs of film stars and actresses (or anyone) nude or in intimate poses with lovers - at any rate, unless publication is with the specific consent of the claimant. English law prohibits publication of photos which have been taken without permission on private property to which the photographer has no legitimate access.130 The publication of photos of persons engaged in a 'private act', taken without authority by long distance camera, would probably be stopped on the basis that the information was confidential.131 It is doubtful whether English law does, or should, go so far as the law in France and Germany appear to do in restricting publication of photographs under the principles of droit à l'image or established under the German Law of Artistic Creations of 1907, principles which represent broad personality rights. English law would not stop publication of photographs taken in a public place or of people engaged in public activities, eg. attending a political meeting or demonstration. For the law to stop the unauthorised publication of all photographs, in the absence of a public interest defence, would erode the distinction, referred to earlier in this paper, between a true privacy right and a general personality or liberty right.

v. False portrayal, sham interviews. A number of leading privacy cases have involved the attribution of interviews or statements to the claimant which s/he did not give or the publication of distorted photographs, creating an inaccurate impression of him or her. These cases are different from those already mentioned in that they do not involve the publication of embarrassing true facts, but rather present the claimant in a false light, the third category of privacy in the classification made by the distinguished American commentator, William Prosser.132 It is generally agreed that these instances of media abuse should be covered by privacy laws. False suggestions that someone is seriously depressed or is having an affair or plans to marry clearly intrude on private matters.133 But, as in the circumstances discussed under the previous headings, some line should presumably be drawn between a false portrayal which would be offensive to most people and minor inaccuracies, such as mistakes about age or precise address. It would be wrong to give a privacy remedy to 'correct' mistakes of a trivial kind.

vi. Access rights to information on data banks. The examples under the previous headings for the most part show classic negative rights not to have personal information divulged or to be portrayed falsely by the media. But it is also clear that privacy may entail positive rights of access to discover what information is held on data bases by security services, the police, health authorities, and perhaps the media in order to correct false information and reduce the risk that it may be released improperly. The European Court has upheld a right of access to data banks,134 although national authorities enjoy a wide margin of appreciation in balancing this example of a right under Article 8 ECHR, with the interests in national security, public safety, economic well-being, etc.

vii. Conclusions: privacy under the ECHR. A definition of privacy should reflect the reasons why privacy is valued in liberal European society, so much so that it is frequently recognised as a constitutional right or freedom. Obviously, it covers more than physical solitude; it gives individuals the right to keep some information about themselves and their relationships away from public scrutiny. But the right should extend only to personal information, and it must be for the law, in the first place legislation, to clarify what that is. The right of privacy does not confer on each individual the right to choose for himself what amounts to private information (or necessarily for that matter private sexual conduct). Such a perspective would, in the first place, mean that privacy was indistinguishable from a general liberty or autonomy right. Secondly, it would significantly restrict the exercise of media freedom.

Privacy under the ECHR should be interpreted in light of the text of Article 8, which refers to the right to respect for 'private and family life, home and correspondence.' Privacy is as a result linked to family life, the security of the home and of communication. Although the scope of the right must be determined in the light of changing social conventions, the text suggests that it would be wrong to interpret privacy as if it were a broad personality right or right to individual liberty.

4. Balancing privacy and freedom of the media

This final section makes a few general points about balancing privacy and freedom of expression or media freedom. The first point is that under the ECHR it is more likely that this question will arise in the context of an application by the media that the laws of a state violated the right to freedom of expression guaranteed by Article 10 of the Convention than it is in the context of a claim that the laws have failed to respect the right to privacy against media invasion. While it is not yet established that Article 8 protects privacy against the media, it is clear that the press and broadcasting media are covered by freedom of expression. In the context of Article 10, the question is whether a privacy law, or its application, amounts in the circumstances to a 'necessary' limit on freedom of expression. Following its approach in the Sunday Times case,135 the Court would not therefore treat the two freedoms as of equal weight, but would give priority to freedom of expression.

However, another preliminary point should be made. Courts should not accept that a publication is covered by freedom of expression, merely because an editor or broadcaster argues that the story about, for example, the private life of a politician or celebrity is newsworthy. In the United States, courts are now reluctant to challenge an editor's judgement that such a story falls under the First Amendment to the US Constitution, so the protection of privacy has become in practice quite ineffective.136 Courts should make an independent assessment whether a publication is in the public interest, and so protected by a free speech or free press provision, just as they should assess whether the information, document, or photograph is personal and so covered by the right to privacy.

Balancing involves a number of general questions discussed under four headings. These points are not exhaustive.

i. Ad hoc or definitional balancing? An American commentator has drawn a distinction between what may be termed ad hoc, or case by case, balancing on the one hand, and 'definitional' balancing on the other.137 Under the former all the factors on each side of the scales are carefully weighed up to see whether, say, freedom of speech or the right to privacy or reputation should prevail. The court might, for example, assess the gravity of the damage to the claimant's privacy or reputation against the importance of the particular publication in question. Under the latter approach rules are formulated for the disposition of these cases. For example, there is the famous libel rule in the United States, requiring all public official and figure plaintiffs to prove actual malice before they can recover damages in libel.138

The argument for definitional or rule balancing is that it makes application of the law more predictable. Editors and broadcasters are better able to assess the risks of a successful privacy (or libel) action; privacy laws exercise less 'chilling effect' on freedom of publication than they do on case by case balancing. This explains why national courts, as in Germany, tend to formulate what at first sight appear complex distinctions between privacy in the Individualsphäre, Privatsphäre, and Intimsphäre, and the capacity to sue of absolute public persons, relative public persons, and private individuals. The disadvantage of this approach is that inevitably it may lead to injustice in a particular case, if, for instance, a political figure were unable to protect his privacy in respect of a publication which did not cover the sphere of absolutely private matters, but which nevertheless was highly embarrassing to him and his family.

ii. How should definitional rules be formulated? If definitional balancing is adopted, the next question is whether the rules should be formulated in terms of the character of the claimant or in terms of the contents of the publication, or perhaps some combination of the two. Various categories of claimant can be devised: public officials, election candidates, public figures by virtue of their position or status, temporary public figures by virtue of their involvement in a public incident, and ordinary private persons. The US Supreme Court has used categories of this kind in developing the principles of First Amendment immunity from libel actions after the New York Times decision, as have the German civil courts in their development of privacy law. One drawback of these distinctions is that it may be hard to categorise a particular claimant: is a retired army general or tennis player still a public figure, is every civil servant, including in some countries school and university teachers, a public official for this purpose? Secondly, their application is complex when, for instance, a publication gives details of an incident or intimate relationship involving people in two or more different categories: does it make sense for the law to permit the identification of one person, or publication of his photograph, but not that of others involved?

Because of these difficulties it may be better for a privacy law to place greater emphasis on the contents of the story. The UK Press Complaints Commission Code provides for a public interest defence to violations of the privacy clause.

The public interest includes:

(i) Detecting or exposing crime or a serious misdemeanour
(ii) Protecting public health and safety
(iii) Preventing the public from being misled by some statement or action of an individual or organisation.

In cases involving children editors must show an exceptional public interest to override the normally paramount interests of the child.139 The three listed instances of public interest are not exhaustive, but in other circumstances an editor must provide a full explanation how the public interest was served by publication of the story.

The PCC rightly takes the view that politicians and other public figures do not surrender their right to privacy because of their position. But stories revealing even intimate details of their private life can be published if they are in the public interest; so it rejected a privacy complaint from a Member of Parliament about an article reporting, with photographs, an affair with a mistress, on the ground that his Election Address had portrayed him as a happily married man and he had continued subsequently to appear in public with her. The article therefore prevented the public from being misled.140

iii. Protection of children and family. The PCC takes a more protective approach to the privacy of children, shown in its recent adjudication of the complaint brought by the Prime Minister and Mrs. Blair. The Mail on Sunday carried an article suggesting that their 11 years old daughter had been given preferential treatment in the allocation of a place at a Catholic school. The PCC upheld the complaint, on the ground that an article could have been written about selection procedures without naming her or giving her prominent treatment; it rightly rejected the argument that a newspaper was free to write a story about the education of the Prime Minister's children, merely because he spoke frequently about education policy.

iv. The public domain argument. The media frequently persuade the court or the PCC/BSC that a privacy complaint should be rejected because the story is already in the public domain. The complainant, it is argued, has consented to publication by disclosing information to friends and neighbours, so putting it in the public domain, or by giving (or selling) it to another publication; alternatively, the information may have been so extensively covered in other media that it is no longer confidential or private.141 In some cases the argument may be sound. But it can easily be abused. One reason why privacy should be protected is that people value choice in areas of personal life: we choose whom to give information to and whom to undress for. It is not far-fetched to argue that a public figure might be willing to give some personal or sensitive information to a specialist publication, without consenting to publication in the mass media. Courts should therefore treat with some caution the argument that information or a photograph is no longer private, merely because it has appeared in other (perhaps foreign) media.

* * *

Remedies against an infringement of privacy: the effect of sanctions and compensation and their proportionality

Matthias Prinz, Rechtsanwalt and Attorney at Law,
Law Office Prinz Neidhardt Engelschall, Hamburg
 

I. Introduction:

In today’s information society, the protection of privacy is becoming more and more difficult. Personal information and data have become valuable and lucrative commodities. The pressure created by the competition in the media leads journalists to publish ever new revealing scoops and sensationalised reports focusing on the private lives of others. Serious economic interests of publishers and broadcasters increasingly overwhelm journalistic ethics.

The protection of privacy by legislation or by the courts has always been a reaction to technical and social development:142 for example, the right to the protection of one’s own image has been a reaction to the development in camera engineering, which makes it easy to take pictures of anybody. The introduction of data protection rules has been a reaction to the processing of personal data by means of computers.

Since the mid-nineties, Italian, French and German courts have increasingly tended to award higher damages for the violation of privacy by media companies. This is the legal system’s reaction to the increasingly competitive media sector. More and more magazines, television channels, online services, etc. fight for consumers` attention and for a share of advertising budgets. Since people have always been interested in stories about others, and especially in stories which involve intimate and private details about other people’s family life, health, relationships with others and last but not least their sex life, this kind of story plays an important role in some areas of the media market. The first story about the new love of a top model, the adultery of a well-known politician, the fact that a famous actress has had an abortion, or the disease of a famous sportsman can make huge sums of money for media and can gain important strategic advantages in the competitive battle for readers, viewers and advertisers. Since more and more media fight for their share in a market which is not growing as fast as the constantly increasing number of competing media, the competition gets constantly stronger and the incentive to invade other people’s privacy to gain market share is growing steadily. Human dignity and privacy are being sacrificed for a higher circulation or viewing rate.

Since the Princess of Wales’ accidental death it has become apparent that the legal system has had to react to these new forms of journalism. In the Resolution on the protection of privacy143 (1998), the Parliamentary Assembly of the Council of Europe has correctly stated under paragraph 6:

“The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as the stimulus to sales.”

Yes, this is a problem for “public figures”, but “public figures” are not the only victims of the tabloid media. Even the “average citizen” might find himself in the press without desiring or provoking comment.

Two examples that illustrate how different the cases can be:

For 11 years, a private photo showing Sophie Rhys-Jones topless had been of no interest to the English public. It was not until just before her marriage to Prince Edward that one of her personal friends sold the photo for an alleged amount of 250.000,00 Pounds to the SUN, page 3 of which was on 26 May 1999 adorned with Sophie’s bare breasts in order to promote sales of the newspaper.

In Germany in the spring of 1998, an eleven-year-old girl was raped and killed in a bestial manner. The photo of the battered girl frequently appeared on the tabloids` front pages for several weeks. One tabloid even used the photo of the girl in their TV commercial until the child’s parents took legal action to stop this.

1. Privacy and freedom of the press

Today, it is generally agreed that the legal system has to do more for the protection of privacy. An individual’s private domain has to be secured and protected. Two questions stand in the centre of attention:

A: What is the definition of privacy as it is actually protected by law and how should its limits be defined?

B: What are the legal remedies to violations of privacy by the media?

In answering these two questions, not only an efficient protection of the individual has to be considered, but also the effects on freedom of the press - which as a founding element of democracy is protected by Art. 5 of the German constitution and by Art. 10 of the ECHR. Paragraphs 11 and 12 of the Resolution on the protection of privacy144 accurately point out that both the right to privacy and the freedom of opinion and the press are fundamental values of any democratic state, and that they are in principle to be considered as being equally important. Thus, the perfect solution has to achieve two aims: It has to protect privacy while at the same time limiting the freedom of the press as little as possible.

2. The freedom of the press

Let us first reflect on freedom of the press and the reasons why it has to be protected:

(...The) constitutional right (to freedom of expression and freedom of press) is fundamental for the free and democratic order established by our constitution, for it enables the intellectual fight, the free discussion of ideas and interests, which are of vital importance for the functioning of the state order. Only the free public discussion about subjects of general importance permits the free shaping of public opinion. In a free and democratic state this shaping necessarily has to be carried out in a pluralistic confrontation of different opinions which stem from different motivations and which have been expressed freely, mainly through the exchange of pros and cons (...). 145

Most nations could probably agree on this formulation given by the German Bundesverfassungsgericht (constitutional court). The effect for a free society is the special importance of and the reason for freedom of the press and freedom of speech. Freedom of the press does not award a special right to the media companies to exploit other people’s private lives. It does not protect the economic success of Mr Murdoch, Mr Berlusconi or Mr Kirch. In our pluralistic society, freedom of the press is protected because of its particular importance for democracy and the public, and not to give anyone the right to earn money with other people’s private experiences, love life, family life, etc.

Freedom of the press should not be understood as some kind of licence for publishers and broadcasters, allowing them to maximise profits by commercialising other people’s lives against their will. Freedom of the press has to be understood in a way required by its democratic legitimacy and its high legal status. The press is supposed to serve public discussion and the shaping of public opinion on subjects of general importance. It supplies readers or viewers with those pieces of information which are necessary to enable them to participate actively in the democratic process of forming opinions as well-informed citizens.

Most of the tabloid publications that are the subject of privacy trials nowadays do not have anything to do with exercising the freedom of the press as it was defined above. These lawsuits are only about the violation of someone’s private domain by publishers or broadcasters who entice their readers and viewers with indiscretions about the lives of others. In most of these cases a person has been exploited for commercial interests only, without agreement or participation. Whenever one of these media-victims is no longer willing to be an instrument of money-making for the media, protest about the supposedly endangered freedom of the press commences, although in most cases only the publisher’s wallet is endangered.

These interests are evident. Therefore, the Parliamentary Assembly of the Council of Europe146 has already accurately stated in paragraph 8 of its Resolution that:

“It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people’s privacy, claiming that their readers are entitled to know everything about public figures.”

Such an abuse of the freedom of the press to the disadvantage of the individual’s rights can only be confronted when the legal system guarantees an efficient protection of the private domain. This does not mean that the private domain should enjoy an absolute and boundless protection. Of course it still has to be possible to reveal private information if it is of actual importance to the shaping of public opinion.

Before one can properly differentiate and weigh these aspects, the true interests have to be determined: the commercial interests of media companies are not synonymous with the public’s interest in information or with the interest of a democratic system in having a free press. When weighing these interests against the interest of the individual to enjoy a protected private life as part of his human dignity, one always has to look very closely at what is being put onto the scales of press freedom: forced commercialisation of others or important information for the public.

3. The private domain

The definition of privacy is difficult. It is commonly agreed that an abstract definition cannot be found. What is part of the private sphere of a human life is as multi-faceted as the human personality itself.

Hence, the European Court of Human Rights – in the decision Niemietz v. Germany 147 - has commented on the meaning of privacy according to Art. 8 ECHR as follows:

“The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of “private life”. However, it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.”

Based on these considerations, the court pointed out in this decision that the notion of “private life” in Art. 8 ECHR might also include events that take place in a professional or business context.

On 19 December 1995148, the German Bundesgerichtshof decided for the first time in a leading case that the protection of privacy is not limited to the domestic sphere, one’s “own four walls”, but instead that a protected private life can also occur in places which are accessible to the public, and that reporting from this sphere without the person’s agreement may therefore be inadmissible. Because it makes a difference whether a limited number of people just happen to be at a certain public place and therefore witness certain aspects of private life, or whether these events are fixed in photographs or in writing and then made accessible to millions of people. The protection of the private sphere in public places is very much limited in Germany for so-called “Personen der Zeitgeschichte” (public figures), who can only forbid photos taken in those public places when they are shown in a situation of particular confidentiality, taking place in “secluded surroundings”.

In Germany, establishing that a report infringes someone’s private sphere does not automatically lead to its illegality. The court always weighs the severity of the infringement with the public’s justified interest in information, thereby taking the freedom of the press into account. This permits an adequately wide definition of the limits of the protected private sphere from case to case, without an inadequate limitation of the freedom of the press.

The French Art. 9 Code Civil (CC) guarantees the protection of private life (vie privée).

The notion of private life in Art. 9 CC is extensive. A statutory definition is missing. The definition of private life and private sphere is left to the courts. The French court decisions in the area of paparazzi pictures (a person’s right to his own image) make it clear that, unlike Germany, the protection of privacy does not depend on a spatial definition of what “private” means. It is not important whether the event occurred in a public place (lieu public), but whether the activity in which the person was engaged was of a private or public character (activité privée/publique). Protected private life can also occur in a public place. A public place does not automatically lead to the presumption that the photographed activity is a “public activity”149. There is an unlimited protection of the private sphere, without any restrictions to certain rooms or spaces. A decision of the Paris Cour d’Appel dating from 1986 may be taken as an example: The court decided that a photograph showing a prominent figure in a bathing suit on the Côte d’Azur violated this person’s private sphere150. According to the current jurisdiction of the Bundesgerichtshof, however, the publication of such a photograph would have been admissible if the depicted person could be classified as an “absolute Person der Zeitgeschichte” (absolute public figure)151.

In French law, the technical means by which the photograph was taken are of particular importance. If, for example, high-performance telephoto lenses have been used (as is regularly the case with paparazzi photographs) in order to capture things or events on film that otherwise could not be captured, the publication of this photo is always considered to be illegal152.

Of course, French courts also weigh up the intrusion caused by text- and photo-reports with the justified public right to information, i.e. the freedom of the press. As in Germany, a justified public right to information can result from a person’s participation in an event of special importance to the public. In addition to this – just as in Germany – a certain group of people is considered to be “Personen der Zeitgeschichte” (hommes public), in whom the public supposedly have a general interest, due to these persons` public positions and their subsequent fame. But, and this is a vital difference to the legal situation in Germany, these persons‘ right to a protected private life is also very important in the court‘s decision. In France, a prevailing public interest in the lives of “hommes public” is only accepted when the person in question has stepped out into public in the context of his or her (professional) function. Private life in public places, e.g. a walk on the beach in swim suits, are also part of the private sphere for those prominent people and therefore protected by French law against non-consented publication153. This French solution gives much better protection of privacy than the German law. There are considerable gaps in German law, leaving the individual unprotected for no acceptable reason. The press may basically publish any photos showing the “hommes public” in activities that plainly belong to the ordinary private life as long as they occur in public places (e.g. shopping; walks in the countryside; sports such as jogging, cycling or canoeing).154

In France, on the other hand, there are only very few cases where journalistic coverage of private matters is admissible, e.g. when a striking discrepancy between a politician’s supposed aims and his personal way of life is being revealed, or when the media report on certain aspects of this person on which his popularity is founded. Thus, in France the “homme public” enjoys a great degree of protection of his private life, while at the same time the public receives those pieces of information in which they might in certain cases have a justified interest. The French example shows that there is no necessity for a general limitation of the private sphere to enable the press to fulfil its public tasks. In France it is possible for a prominent person to enjoy an unobserved private life in which he has to accept intrusions only in certain justified cases.

Unlike the French and German legal situations, the English law does not acknowledge a general “right to privacy”. Nor is there a general right to lead one’s own life unwatched or unpublished nor a right to one‘s own image. However numerous cases in Great Britain have shown that there is a strong need for protection of privacy. Therefore British courts use other legal provisions in order to reach the desired protection of privacy155. The legal protection is rather randomly based on trespass on land, trespass to goods, the law of confidence and occasionally defamation, etc. A good example is the case of the actor who – after a severe brain operation – was photographed and “interviewed” in his bemused state by reporters who had entered his hospital room: he gained a temporary injunction, not on the basis of the violation of his privacy or his human dignity, but only because the court referred to the offence of “malicious falsehood”. The public had been misled to assume that the interview had been voluntarily given156. An analysis of comparative law shows that English judges evidently are trying to guarantee a basic protection of privacy by means of these complicated legal constructions, motivated by general consideration of justice157. Although this policy frequently leads to fair decisions in individual cases, the uncertainty regarding the (non-existent) law of privacy is considerable. Apart from the special legal constructions mentioned in the above example, the victims of privacy violations are usually unprotected in Britain, particularly when faced with the publication of paparazzi photos.

It is evident that the protection of privacy in Europe has different forms in every country. The wide protection of privacy under French law offers the highest level of protection for the individual’s private life. At the same time, these rules take the interests of the public and the press adequately into account, so the French regulations might well be considered the most suitable. This is not, of course, a position that tabloid media will favour, since French law makes their business difficult. However, any comparative analysis of the laws which protect privacy in Europe will find that the French legal system goes a long way to ensure protection of privacy without neglecting the importance of a free press.

It is worth noting that the French legislator’s rules frequently lose their impact due to regulations that exist in other countries. To give an example: On the night of her death, the Princess of Wales was chased in Paris by French paparazzi in order to take pictures that legally could not be published in France. However, as their publication would not have violated the law in other European countries, a market for these photos existed outside France, thereby thwarting the French legislators‘ will to enable a protected private life, ( i.e. without paparazzi) on French territory. This example shows the necessity for a standardisation of the protection of privacy in Europe.

II. The different types of privacy violations

Violations of privacy occur in many different forms.

1. (Paparazzi) photos and film shots

The private life of a person is frequently dragged into the limelight by the publication of photos without his consent. In most cases these are “paparazzi photos”, i.e. photos that are produced and sold in secrecy, shot from a great distance by means of high-tech cameras and usually showing the photographed person in discreet and private moments. Modern camera technology permits crystal-clear photos from a distance of more than 350 metres. Photos shot from a distance of up to 1.6 km are still publishable. This means that there are hardly any spatial limits to protect the prey. Paparazzi use helicopters, aeroplanes and speedboats to follow their victims. They hide in bushes, in trees, and on roofs, they use military camouflage and high tech machinery. Like secret service agents they hunt down their targets to make a fortune. The fees paid for paparazzi photos are simply incredible. Thanks to their financial strength, media companies are able to pay these sums, if - according to their own business calculations - the purchase of photos at this extremely high price pays off. The huge fees make it profitable for the photographers to lie in wait for days, weeks, or even months and also to go to considerable technical and organisational lengths just to shoot a photo of the victim in spite of all the defensive measures he or she has taken. A recent example is the hunt for Princess Caroline of Hanover’s new baby. In the last eight weeks, dozens of photographers sneaked onto her private property, equipped with high-tech machinery and military camouflage, in order to shoot the first photo of baby Alexandra who was born on 20 July 1999. Approximately one million pounds are to be earned from the first picture of the baby, and it is apparent that there are many who are willing to accept any violation of law or of the child’s and parents’ rights and well-being for a sum this high. Another example: the photo depicting Fergie’s toe being sucked by her lover is said to have sold for more than one million pounds, and the gym-photos of the Princess of Wales were sold at around the same price. For these amounts, paparazzi are hiding in confessionals in order to shoot the christening of a prominent baby, and are entering hospitals disguised as doctors or medical staff to shoot a photo of a new-born baby or a prominent patient. They sneak onto private property in order to spy on the private doings of others, always looking for sensations, for adultery, for the proof of a disease, for a family dispute, etc.

2. True text reporting

Of course, an infringement of privacy can also happen in writing, e.g. the account of a reporter who approaches a prominent person to spy on him. To give an example, one of my clients had been followed by a “journalist” all the way into the hotel sauna. The sauna encounter was then re-narrated including every detail, such as the oil with which the masseur treated my client, the contents of her chat with him and the merits of her naked body.

3. Untrue reports that violate privacy

Violations of privacy can also happen in untrue texts about private life or manipulated photos. Some media love to create easy-to-sell (untrue) headlines, with electronically manipulated photos. For example: In spring 1998 the German papers GALA and BUNTE, the French PARIS MATCH and the Italian OGGI published a manipulated title photo, in which a third person, who stood between two celebrities, was erased. The magazine manipulated the photo to present the couple’s allegedly first official appearance to their readers. It is remarkable that this incident has been reported and criticised in France and that PARIS MATCH had to apologise to its readers in an open letter. In Germany and in Italy the manipulation bothered neither the readers nor the other media.

False information about the private sphere violates the victim in two respects: On the one hand his public image becomes falsified. On the other hand he might be compelled to expose details from his private life which he did not want to become public in the ensuing court procedure, because it may be necessary to reveal the private truth in order to prove that the journalist’s report was untrue. This leads to new reports about his private life (as revealed in the trial). This happens in England regularly, because it is much easier there to defend oneself against untrue reports than it is against violations of privacy in general. Here again the French system is better. In France it doesn’t matter whether the report is true or untrue. If it violates the right to privacy, it is illegal and the victim is not forced to reveal the truth about his private life in a lawsuit.

III. Claims against violations of privacy

1. Uselessness of reply, correction and “publication judicaire”

Most legal systems offer claims that can correct untrue public impressions: reply, correction, retraction and the “publication judicaire” under French law. In the case of a violation of privacy these claims are rarely taken into consideration. A person who wants to protect his private life against public disclosure does not want to bring up that subject himself. He does not want his private life to be the subject of a publication - even in the form of a reply or correction.

2. Injunctions

Usually the victim of a violation of privacy will use proceedings to obtain an injunction, in order to prevent a new violation. The injunction is directed towards the future and will not undo the violation of privacy; nevertheless it has an increasing meaning in view of modern electronic information systems and computerised media archives. Each reporter, editor or even freelance journalist in big media companies has access to the electronically stored data of the archives. In many cases the publishing companies/TV and radio stations co-operate and supply each other with information and data. It is therefore only a question of time before already published information concerning a private incident will be republished. In those cases the person affected can protect himself with an injunction.

Usually, the claim for an injunction can only be asserted after an illegal publication. The claim always follows the violation. An injunction does not undo anything and neither compensates for the infringement of rights nor gives satisfaction.

Also the economic calculation of the media companies is not disturbed by an injunction. Sensational publications about other people’s private lives increase sales and improve the relationship with the consumer, who will get hooked to a paper or TV/radio station if he likes the sensational reports. This leads to the result that an intrusive report might produce long term profit, more consumers and an increase in advertising revenues. The media have already made money from the publication by the time they receive an injunction, so that injunctions will never keep them from committing similar offences in the future.

3. Compensation for immaterial damages

As mentioned above an injunction offers at most little protection. It protects from the repetition of a violation which has already occurred, but not from a new, different violation. The person who gains an injunction against a paparazzi photo today could be the victim of another paparazzi publication tomorrow. And it is certain that he will become the victim of the next paparazzo, as long as the photographers and the media companies can make money from these publications. In order to prevent such violations, one has to get to the root of the problem and that means considering the financial interests of media companies. Under German law the claim for compensation for immaterial damages (“Geldentschädigung”) is based on the realisation that the private sphere would be virtually unprotected without such a damage payment. The courts acknowledge that the “Geldentschädigung” is the only sanction that can produce an effective protection of privacy.158

Unfortunately the publication of a paparazzi photo does not always justify a claim for “Geldentschädigung” in Germany.

The same applies to true text reporting. This leads to the result that certain public figures are shadowed and observed, and photos can be taken 24 hours a day. Even if this is considered to be a violation of personal rights, the offence is not considered so severe by German courts that it justifies a claim for “Geldentschädigung”(-damages). In 1995 the Bundesgerichtshof (Federal High Court of Justice) realised this problem and pointed out in an important decision159 that damages are needed for prevention, also that a repeated and persistent violation, the intention of which was to gain profit, could be qualified as a severe violation and justify payment of damages. Even if each single case is not severe enough (so called “cumulative principle”) they can be added up to justify one damage payment after several violations. Prior to this judgment, paparazzi shadowed and observed the three minor children of Princess Caroline of Hanover for many months. They continuously took pictures of the children on their way to school, during their holidays, on the sports field etc. Despite the fact that in France the publication of this kind of private photo is illegal and will be sanctioned with damage payments, the German, English, Spanish and Italian markets were important enough to make the constant siege by paparazzi at the children’s French residence a lucrative business for the photographers. After the children obtained over 60 injunctions against various publishing houses and photo agencies, the Bundesgerichtshof realised how unsatisfactory the situation was: illegal publication – injunction, illegal publication – injunction etc. The publishing houses made money, the paparazzi made money and the situation of the children did not change. Then the Court decided that only the payment of a “Geldentschädigung” in a noticeable amount could protect the children’s privacy.

In France the victims obtain a damage payment fairly rapidly, but this has not led to a total extinction of violations and hardly even to a noticeable reduction, because the damage payments are very low compared to the enormous profits of the media companies. Lately the French judges have noticed this, and I hear from my French colleagues that the damage payments are rising, as they are – as mentioned before – in Germany and in Italy.

4. Consequences and proposals for the future

With the demands set up in paragraph 14 of the Resolution on the protection of privacy160 the Council of Europe has taken an important step on the way to a better protection of privacy. There the member states were requested to create a legal system which fulfils the following preconditions:

- the possibility of taking an action under civil law should be guaranteed to enable a victim to claim possible damages for invasion of privacy

- economic penalties should be envisaged for publishing groups which systematically invade people’s privacy

- civil action (private lawsuit) by the victim should be allowed against the photographer or the person directly involved, where paparazzi have trespassed or used “visual or auditory enhancement devices” to capture recordings that they otherwise could not have captured without trespassing

- provisions should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy

This Resolution has to be supported emphatically. But the most important thing is to enable the courts to award damage payments that are really felt by the big media companies and will have a lasting influence on their conduct. At present, the damages in the European countries are of no consequence for companies that make several millions of Euro a day. For example: A big German publishing house, which is on the market with 85 magazines (32 of them in Germany) and has a dominant position in the “Yellow Press” section, had a turnover of 3.03 billion DM in the business year 1997. The owner has taken out 700 million DM for his private use, which means an average of 2 million DM per day. The damages awarded in Germany for violation of privacy (NB: only in grave and severe cases or because of repeated offences) add up to approximately 15,000 to 20,000 DM and therefore are equal to the profit this media tycoon makes every seven to ten minutes. It is evident that he will not be impressed by these amounts and that he will not urge his chief editors to respect the right to privacy in the future. The big media companies will still regard the judgments for damages as a joke if they do not rise considerably in the future. Compensation for damages must take into consideration the economic productivity, the income and financial circumstances of the media companies. It should not be possible for media companies to calculate the positive or negative aspects of a violation of privacy as a business calculation. The damages awarded by the courts for the publication of paparazzi pictures should not be less than the amount that can be earned with the publication of these pictures. It is natural that the damage awards at present are quite the reverse: the violation of privacy has to become so expensive that it is absolutely not worth it. Exceptions are admissible in the interest of the freedom of the press and information, but only if the justified public interest demands such exceptions. Paparazzi photos must be admissible, for example, in the case of taking pictures of a corrupt politician receiving money, but not in order to show persons naked or with a new lover against their own will.

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CHAPTER IV: CONTRIBUTIONS FOR DISCUSSION 

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Statement by the UK Press Complaints Commission (PCC), London 

It has now been widely accepted in the UK that self-regulation is the best solution to the problem of balancing the conflicting rights of freedom of expression and privacy. This has been accepted by two successive governments but also, perhaps more importantly, by both the general public and the industry itself. The general public has shown its acceptance of the system by its use of the PCC as a means of resolving complaints against the press - since its foundation in 1991, complaints to the PCC have risen from around 1000 a year to over 3000, including complaints from ordinary individuals, companies and organisations, politicians, celebrities and other public figures. The majority of complaints accepted by the PCC for investigation are amicably settled between the parties with the help of the PCC’s staff. Our success at resolving complaints also shows that the system has the full support and co-operation of the UK newspaper and magazine publishing industry.

Self-regulation works in the UK because it is a purely voluntary system. We offer a fast, flexible and informal way for ordinary people to resolve their disputes with newspapers. If we were working within a legal framework or had the power to seek financial compensation for complainants, we could not possibly be as fast or as effective and ordinary people - who could not afford to take legal action - would be denied justice.

The other reason why self regulation works in this country is that it is a system which has grown up organically (in common with other press councils across Europe). The PCC administers a Code of Practice written by the UK press based on its journalistic and ethical traditions. This is its strength. Any attempt to produce a cross border code or to bring all European codes into line with each other would undermine this strength.

When the ECHR was incorporated into UK law in 1998 concerns were raised that this might undermine effective self-regulation by allowing a privacy law to be brought in through the back door and thus threaten the system of self-regulation. In the event, however, the Human Rights Bill was amended to contain a clause which specifically protects freedom of expression and emphasises the role of the PCC and its Code of Practice. The bill therefore clearly supports the preservation of self regulation. Self regulation is a manifestation of freedom of expression and Article 10 underpins self-regulation philosophically.

The task of the Council of Europe should therefore be to encourage the growth of self-regulation throughout Europe and in particular in the new democracies. Steps have already been taken by the press councils across Europe to meet on a regular basis in order to exchange views and information. We hope that this network will be of benefit not only to the established press councils, but also to those trying to set up press councils in countries where no system of self regulation yet exists.

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Statement by Mr Lutz Tillmanns, Managing Director, Deutscher Presserat (German Press Council), Bonn 

Firstly, it is necessary to see privacy and freedom of expression not as mutually exclusive interests, but as equivalent rights. I believe that it is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed by the European Convention of Human Rights: the right to respect for one’s private life (Article 8) and the right to freedom of expression (Article 10). These rights are important and fundamental to a democratic society. They are neither absolute nor in any hierarchical order, since they are of equal value.

Secondly, I believe that media already have enough limiting rules. Publishers and the editors of newspapers, magazines, radio and television as well as individual journalists, should be in a position to weed out through self-regulation undesirable excesses and patterns.

The tendency of governments, at the national and European levels, to tighten up privacy laws is not only dangerous to the media, it is a threat to society at large. In Europe, including in those countries with long democratic traditions, along with ordinary crime, white-collar crime, corruption and horror-behind-closed-doors also exist. It goes without saying that we respect the privacy of every person’s house and emotional experiences. But this privacy of the ordinary citizen applies as long as he does not become a source of news through exceptional happiness, unhappiness, glamour, accident or crime. When he is the subject of negative news, his full name is respected as far as possible through the use of his initials. The Press Code of the German Press Council says: “The publication of names and photographs of accused persons and victims in reports on accidents, crimes, investigations and court cases is in general not justified. The public’s right to information must always be weighed up against the personal rights of those involved.

Everything that happens in public is fit to print. Everything that affects public figures is news!

So: Whether Paparazzi methods or offences against the right to privacy in the media, the accusation or reports which violate the personal right or the publication of names and photographs: everywhere the journalistic professional ethics – the ethic of journalists and publishers – is being tested. How effectively do voluntary self-regulation bodies on a national or European level work?

For 43 years now the German Press Council has defended both the freedom and the reputation of the press, supported by the two leading organisations of publishers (Federal Association of German Newspaper Publishers and Federal Association of German Magazine Publishers) and the two journalist trade unions (German Association of Journalists and Industrial Union of Media, Printing and Paper, Journalism and Art). Interested in supporting the freedom of expression and the freedom of press, we are committed to observe the main rules of a fair and honest journalism including the keeping of those professional ethical principles. Therefore, press self-regulation seems to be necessary because it is not the legislators’ task – whether at the national or the European level – to correct violations of journalistic fairness and accuracy in the field of professional ethics.

The German Press Council therefore supports its “Publicistic Principles (Press Code)” which was set up by the Council and is continually developed further as rules for the protection of journalistic ethics, intensifying the awareness for the necessity of fairness, accuracy and responsibility in the press. For the same reason the German Press Council founded in 1973 the Complaints Commission which takes care of complaints from the public, examines and decides on them on the basis of a procedure, corresponding to the aspects and conditions of a constitutional state. On the basis of its extensive rulings (roughly 4500 complaints since 1985) the Press Council actualises its ethical norms, and through this provides for a permanent dialogue between readers and editors. Independent of this a consumption-critical attitude of the users towards media content is being achieved.

The German Press Council sees itself as a classical voluntary self-regulatory body whose work not only wants to avoid state sanctions in the fields of criminal law (for example pornography, instigation on racism) or on protecting minors (glorification of violence). It also monitors the editors’ work which is protected in Germany by article 5 paragraph 1 sentences 1 and 2 of its constitution. The effectiveness of self-regulation for the German Press Council is shown through the acceptance from both: the publishers (employer, it means company self regulation) and the journalists (employee, it means editor self-regulation).

For 25 years now the German Press Council has worked intensively on complaints guided by the rules of the Press Code and the guidelines/recommendations for journalistic work. The effectiveness in its own ranks is being supported through the so-called “reprimand-obligation-declaration”. Roughly 900 publishing houses (95% of Germany’s publishers) have signed this declaration. The publishing houses print in their papers and on on-line services the public reprimands which the German Press Council has ruled against their papers. The Press Code is generally being accepted within the press, partly also in broadcasting, here especially in the field of journalistic reports.

On top of this, the effectiveness of self-regulation in Germany can be seen when it comes to lasting discussions for example on journalistic lapses in the process of sensational hostages, the Paparazzi-discussion on the occasion of the death of Princess Diana, the commitment to the victims in the media and so on. Over and above that think for example about questions on journalistic accuracy, limits of investigations, admissibility of so-called Paparazzi methods, protection of informants and the connecting rights for journalists to refuse to talk about informants before court, ethical standards on war reports, the responsibility of investigating content which is published on-line and finally the legal questions of the transformation of the 1995 EC Data-Protection Act into national law. The German Government is currently preparing a draft of the national data-protection law. So meanwhile we are forced to defend the freedom to use personal-data for journalistic purposes. The last subject I think is a very serious example to a threat to freedom of expression and press freedom.

In the following I would like to talk about the preconditions and chances of self-regulation in the press at the European level: the development of self-regulation should be promoted by the Council of Europe – but only on the basis of recommendations and promotion. Such a promotion could include financial help for education and advanced training for journalists and employees of publishing houses, programmes for the exchange of experience in the field of self-regulation, respectively programmes which include imparting media competence, media accountability and ethics.

Self-regulation at the European level can only take place under the precondition that it is built by the individual countries themselves and only if it takes into account the respective cultural and historical experiences of the national media systems. In particular, the assessment of, for example, questions of discrimination and the moral/ethical perception of media users are completely different in each single member country. The growing international co-operation in the media field makes it necessary, in the German Press Council’s view, to establish platforms of co-operation, co-ordination and the exchange of experience among the institutions of the voluntary self-regulation at the European and international level.

In my view the meeting on “Media self-regulation at an European level”, held from April 19-21, 1999 in Saarbrücken/Germany was helpful. The Conference was organised by the German Government together with the Saarland Government and the European Commission. The experts present from politics and media –including representatives of several press councils – ended the meeting with the “Conclusion of Saarbrücken”. The recommendation formulated here is directed to media associations and media organisations, to governments of the European member States and to the executive bodies of the EC. Among other things the following was recommended:

- promotion of public awareness for self-regulation and the so-called co-regulation, for the existing complaints procedures in the media field as well as “for their legal and social significance”.

- the support of the media industry, user associations and organisations of self-regulation and co-regulation by the single countries and the European Commission, especially in regard to cross-border co-operation.

- the “engagement for European models of self-regulation and co-regulation in the media field.”

The experts explicitly rejected harmonisation attempts for which also no competence exists. They also rejected Europe-wide control mechanisms and instead suggested rather an active exchange between colleagues and a stronger co-operation of the different self-regulatory bodies.

I think the Council of Europe should support these ideas and the media to create their own guidelines concerning the right to protection of privacy and to publication.

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Statement by Mr Pär-Arne Jigenius, Swedish Press Ombudsman, Stockholm 

The Code of Ethics for the Swedish Press, Radio and Television, contains provisions on rules of publicity which include the protection of privacy and one’s image. The respective provisions are reproduced below.

Pressens Samarbetsnämnd is a Joint Committee founded by the leading media organisations in Sweden: The Newspapers Publishers Association, The Union of Journalists and The National Press Club.

These three organisations are responsible for the Charter of the Press Council and the Standing Instructions for the Press Ombudsman. They all contribute to the financing of the Press Council and the Office of the Press Ombudsman.

The concept of self-regulation means that the parties formulate the ethical and professional guidelines and see to it that these guidelines are respected.

Code of Ethics for the Press, Radio and Television

The press, radio and television shall have the greatest possible degree of freedom, within the framework of the Freedom of the Press Act and the constitutional right of freedom of speech, in order to be able to serve as disseminators of news and as scrutinisers of public affairs. In this connection, however, it is important that the individual is protected from unwarranted suffering as a result of publicity.

Ethics does not consist primarily in the application of a formal set of rules but in the maintenance of a responsible attitude in the exercise of journalistic duties. The code of ethics for the press, radio and television is intended to provide support for this attitude.

I. Rules on publicity

Provide accurate news

1. The role played by the mass media in society and the confidence of the general public in these media call for accurate and objective news reports.

2. Be critical of news sources. Check facts as carefully as possible in the light of the circumstances even if they have been published earlier. Allow the reader/listener/viewer the possibility of distinguishing between statements of fact and comments.

3. News bills, headlines and introductory sections must be supported by the text.

4. Make sure of the authenticity of pictures. See to it that pictures and graphical illustrations are correct and are not used in a misleading way.

Treat rebuttals generously

5. Factual errors are to be corrected when called for. Anyone wishing to rebut a statement shall, if this is legitimate, be given the opportunity to do so. Corrections and rebuttals shall be published promptly in appropriate form, in such a way that they will come to the attention of those who received the original information. It should be noted that a rebuttal does not always call for an editorial comment.

6. Publish without delay statements of censure issued by the Swedish Press Council in cases concerning your own newspaper.

Respect individual privacy

7. Be careful in giving publicity where it can trespass upon an individual’s privacy. Refrain from such action unless it is obviously in the public interest.

8. Exercise great caution in publishing notices concerning suicide and attempted suicide, particularly out of consideration for the feelings of relatives and in view of what has been said above concerning the privacy of the individual.

9. Always show the greatest possible consideration for victims of crime and accidents. Carefully check names and pictures for publication out of consideration for the victims and their relatives.

10. Do not emphasise race, sex, nationality, occupation, political affiliation, religious persuasion or sexual disposition in the case of the persons concerned if such particulars are not important in the context or are disparaging.

Exercise care in the use of pictures

11. Where applicable, these rules also apply to pictures.

12. Making a montage, retouching a picture by an electronic method, or formulating a picture caption should not be performed in such a way as to mislead or deceive the reader. Always state, close to the picture, whether it has been altered by montage or retouching. This also applies to such material when it is filed.

Listen to each side

13. Endeavour to give people, who are criticised in a factual report the opportunity, at the same time, to reply to the criticism. Endeavour also to state the views of all parties involved. Bear in mind that the sole objective of reports of various kinds may be to cause harm to the subjects of the reports.

14. Remember that, in the eyes of the law, a person suspected of an offence is always presumed to be innocent until he is proved guilty. The final outcome of a case that is described should be reported.

Be cautious in publishing names

15. Give careful thought to the harmful consequences that might follow for persons if their names are published. Refrain from publishing names unless it is obviously in the public interest.

16. If a person’s name is not to be stated, refrain from publishing a picture or particulars of occupation, title, age, nationality, sex, etc., which would enable the person in question to be identified.

17. Bear in mind that the entire responsibility for publication of names and pictures rests with the publisher of the material.

Comments on Part I

Where the press is concerned, the Swedish Press Council is primarily responsible for interpreting the concept "good journalistic practice"; in matters not referred to the Press Council, the Press Ombudsman has this responsibility. It should be noted that the Press Council and the Press Ombudsman do not deal with cases of departure from the rules applying to radio or television programmes. The Broadcasting Commission, appointed by the Swedish government, is responsible for scrutinising such programmes.

In addition to the criticised newspaper, the Press Council’s ruling, in the form of a brief factual report, is published in Pressens Tidning (Press Journal) and in Journalisten (The Journalist). A subscription for Press Council decisions may be placed with the Swedish Newspaper Publishers Association (Tidningsutgivarna).

Rulings given by the Broadcasting Commission may be requested from the Commission Secretariat.

* * *

Statement by Ms Judith Mann, Private Secretary to HRH The Princess of Hanover, Monte Carlo, Monaco 

There are two levels of press and my criticisms are directed at the tabloids which at present benefit from the liberty of expression accorded to the press in general. The development and expansion of the tabloid press is without a doubt linked to the present press laws practised in most countries where protection of the individual’s privacy is inadequate and whose penalties for infringement are no deterrent to renewed abuse.

I am profoundly convinced that the press, but particularly the tabloid press in most countries gives no serious consideration, if any at all, to the permanent psychological damage and anguish created by their repeated and harmful violations of a person’s right to a safe mental, emotional and physical environment.

I am also firmly convinced that discussions and debates on the rights of the press to freedom of expression and the individual’s right to privacy, organised under the aegis of the Council of Europe, would really benefit from the active participation of lawyers specialising in the protection of privacy, and psychologists who could describe the damage caused by intrusive, unjustified and untruthful reporting on an individual and particularly on a child. Their participation would add some balance to what I perceive as a very strong press lobby in favour of even more freedom.

My opinion is based on observations while working with someone whose own life and whose children’s lives are tracked by photographers selling to the international, but mainly European, tabloid press. For over 15 years I have witnessed the misery and frustration, which a parent experiences from the impossibility of protecting her children, and know first hand what this permanent violation inflicts on the family and its entourage.

May I draw your attention to a paradox?

Amongst many charities, HRH The Princess of Hanover is President of an NGO – AMADE Mondiale – whose mission is to protect children through campaigns to modify previous laws and create new laws in their favour, giving them the right to life, education and an unexploited childhood. These children are mainly exploited in the East but not exclusively.

The bitter irony is that Her Highness’s unceasing efforts to protect her own children from a very Western form of exploitation are without effect because the law protecting the right to privacy is non-existent in some countries, weak in others and frequently disregarded in France because a perverted form of the freedom of the press prevails.

In the East exploitation frequently takes the form of buying and selling children to work in factories or on the streets. Whichever way you look at it, it is a commercial transaction dealing in a commodity: people’s lives.

In the West the ceaseless trailing of a child or an adult, the trading in stolen images, the fabricated stories around the pictures, are also commercial transactions dealing in a commodity: people’s lives.

Who is responsible for this particular form of exploitation? Informed adults. From the paparazzi who sell their photos, to the journalists who write the stories through to the editors who take the final decisions to print, they know exactly what they are doing. Commercialising for profit pictures and stories about children and adults which do not constitute either a subject for the public’s ”right to entertainment” or their “right to information”. Who would accept that children and non-consenting adults should be used to provide “entertainment” to the public once the pure facts about profits to the media were laid bare?

I would not disagree that the freedom of the press is a fundamental necessity in a democracy but I believe the Council of Europe is appropriately placed to widen the debate on this subject and present the very valid arguments for the protection of privacy of both the adult and child, with particular reference to the United Nations Convention on the Rights of the Child adopted in November 1989.

Article 16 of this Convention states:

1. “No child shall be subject to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

“The child has the right to the protection of the law against such interference or attacks.”

and Article 36:

“States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.”

One could argue that the children of whom I speak are a minority when we consider the entire planet. A change in the law of privacy may be considered pointless if it is just to protect so few among so many. But those children who are regularly exploited in the press will grow into disturbed adults, often severely so, with personality alterations which will never be eradicated and, worse, into a new generation of adults whose lives, thanks to their notoriety as children, will be grotesquely serialised and perhaps wrecked by the tabloids, and whose daily activities are shadowed by an ever-growing number of unprincipled, and sometimes dangerous, paparazzi.

* * *

Statement by Mr Alain Toucas, Avocat, Paris 

Without the financial backing of a certain section of the press, which pays them for their work, there would be no paparazzi.

The success of the so-called celebrity press is actually founded on a perversion: showing precisely what people do not want to be shown, their private lives. It should, however, be noted that since the editor of Le Figaro was murdered by Madame Caillaut, private life has gradually been given greater protection under French law.

Article 9 of the Civil Code and its corollary, Article 368 of the Penal Code, have established genuine rights linked to individual freedoms. These are fundamental rights of the French Republic aimed at guaranteeing peace, freedom, tranquillity and family and personal life, and the same notions are to be found in the Universal Declaration of Human Rights and the Convention on the Protection of Human Rights and Fundamental Freedoms.

France had already made it a constitutional right to move peacefully within its national territory.

Notwithstanding the above and despite years of effort by the courts and numerous, sometimes spectacular decisions, private individuals continue to be followed and hounded and their private lives violated every week.

a. Each issue of the celebrity press magazines generally includes:

- a series of unauthorised photographs taken with a telephoto lens which have been re-centred, enlarged and sometimes put together, in other words faked;

- a text which is always hypocritical and demagogic, often harmful, sometimes defamatory and, in any case, often contrary to the victims’ repeatedly expressed desire to protect their private lives.

These texts are therefore systematically published with total disregard for:

a. a law which these weekly magazines no doubt consider has been repealed;
b. the numerous court decisions given each month;
c. the repeatedly expressed wishes of their victims.

They cause damage which has been the subject of one court case after another and which, in the case of some public figures, amounts to a permanent violation of privacy, a sort of ongoing offence or civil “recidivism” that because of its repetitive character, is sometimes described in court decisions as reprehensible and/or systematic harassment.

Nevertheless, this intolerable upsetting of daily life, so often censured by the courts, endures, as the victims are unable to obtain the protection which should be the logical outcome of the many decisions condemning these violations.

Celebrities, sometimes men but more often women, whether mothers, divorcees, bereaved or none of these, but who have certainly never shown any sign of tolerating or consenting to such treatment, continue to be hounded daily and have rumours spread about them to satisfy the hunger of the celebrity press.

Lies upon lies, sometimes every week, frequent distortions of the victims’ personalities, articles that may be accommodating or disparaging, tactless or demagogic, but which always affect the victims’ identities and sometimes their dignity, continue to be published.

These magazines break the law; they contravene court decisions and behave like cynical commercial concerns whose only goal is to make a profit.

b. In such a context, can we speak of the press, when we are faced with veritable machines of war that attack private lives, and organised violations of people’s rights? And can we invoke the legal protection to which the quality press is legitimately entitled?

It is fashionable today to defend and/or justify the violations that are committed by referring to “the freedom of the press” or “freedom of information”.

I feel I should point out that people gave their lives for these freedoms at a time when the press did indeed need to be protected from political power, and later from the power of money, and these worthy principles are not to be invoked lightly.

Moreover, it must be remembered that the laws protecting freedom of the press and freedom of information were introduced to protect ideas, to protect a press that serves as a medium for ideas, and certainly not to protect a press which is only interested in such and such a celebrity’s love life or family life.

This section of the press cannot claim to genuinely inform the public; half of what it prints is untrue or tactless (“news” of unwanted pregnancies, new lovers, secret weddings, etc) and distorts the victim’s character, even though tampering with people’s identities is an act of the utmost gravity.

The real problem is therefore whether just anyone can be given a press card and whether this section of the “press”, which does not really belong to the press at all, can publish what it likes. Can one cloak oneself in the dignity of the right to information and freedom of the press to pick out a person, market their fame against their will and spread all sorts of rumours about them in order to increase profits using methods in which no holds are barred?

No, of course not, for this leads to the degradation of public morals and the degradation of civic life of which judges are the guarantors.

In such a situation, everyone is discredited.

c. Why is there such persecution, hounding and tailing? Why are such articles published?

For profit, of course, as by grabbing hold of their victims’ renown, these publications transform it into something they can sell, which is precisely what most of their victims refuse to do.

The idea that celebrities give their tacit consent to the celebrity press, or that they do not suffer any harm from being trailed and photographed against their will and having those photographs printed in the press with captions that spread rumours such as those mentioned above, must be banished once and for all.

No magazine prosecuted for invasion of privacy has ever had the victim's permission, nor has press coverage of this kind ever been sought after, despite the rumours to the contrary deliberately spread by the celebrity press lobby.

Being featured in these weekly publications is the worst possible form of publicity, and simply to see one’s picture in one of them is often prejudicial in itself.

If these magazines were to market the fame of Christian Dior, Chanel or Vuitton, the courts would find them guilty of parasitism and counterfeiting and fine them so heavily that such violations would be brought to an end. But in cases of infringements of private life, the celebrity press has, in a certain sense and at little cost, managed to get away with continually violating the rights of the very people who enable it achieve a wide circulation. How has this happened? Perhaps because in France, we are very good at recognising great principles before anyone else, but we are also dab hands at then emptying those principles of any meaning.

France certainly has a law to protect private life, but the system for awarding damages is inadequate. Why?

Because the French courts which award compensation for non-material damage have an extremely limited conception of that damage. This is true of all the courts in the French judicial system.

Psychological suffering is subjective and therefore difficult to quantify, although the degree of that suffering can sometimes be seen through the acts that are carried out as a result: victims acting in psychological self-defence have, among other things, lashed out at paparazzi and dumped lorry loads of manure on magazines’ doorsteps.

The resulting paradox is that France, whose privacy laws probably offer better protection than those of any other country in the world, also has magazines which make it their profession to trample those laws underfoot and violate it daily before going on to boast of what they have done on television.

Have these magazines succeeded in turning French judges into “taxing masters” responsible for assessing the price to be paid for what is effectively a licence to go on violating private life indefinitely? No, for French judges are aware of the seriousness of the problem and are trying to develop a body of case law that will improve assessment of the damage caused by this section of the press and their paparazzi agents.

Everyone now realises that by obliging readers to put together what is supposed to have taken place with what is shown in the magazines, these articles and photographs, these violations, leave them with an indelible impression that what was implied really happened and cause suffering and damage that is not short-lived or ephemeral, but enduring.

* * *

LIST OF PARTICIPANTS 

SPEAKERS

Professor Eric M. BARENDT, Goodman Professor of Media Law, Vice Dean of the Faculty of Law, University College London, Bentham House, Endsleigh Gardens, GB – LONDON WC1H OEG, UNITED KINGDOM

Mr Bruno GRAUSEN, former Commissioner for International Affairs and Head of Legal Department of Danmarks Radio, Callunavej 10, 3450 ALLEROED, DENMARK

Mr Toby MENDEL, Head of Law Programme, ARTICLE 19 - International Centre Against Censorship, Lancaster House, 33 Islington High Street, GB – LONDON N1 9LH

Mr Matthias PRINZ, Rechtsanwalt and Attorney at Law, Law Office Prinz Neidhardt Engelschall, Tesdorpfstrasse 16, 20148 HAMBURG, GERMANY

Mrs Françoise TULKENS, Judge at the European Court of Human Rights, Council of Europe,
67075 STRASBOURG, FRANCE

PARTICIPANTS

Ms Pirjo AALTO, Sanoma-WSOY Oyj, P.O. Box 1229, FIN-00101 HELSINKI, FINLAND

Mr Nils Klevjer AAS, European Audiovisual Observatory, 76, allée de la Robertsau,
67000 STRASBOURG, FRANCE

Ms Janet ANDERSON, Press Complaints Commission, 1 Salisbury Square, EC4Y 8JB, LONDON, UNITED KINGDOM

M. Denis BARRELET, journaliste, professeur, Président de l'Autorité indépendante d'examen des plaintes en matière de radio-télévision, Gewerbegasse 118b, CH - 3036 DETLIGEN, SWITZERLAND

Mr Frithjof BERGER, Office of the Federal Government Commissioner for Culture and the Media, Graurheindorferstr. 198, D - 53117 BONN, GERMANY

Mr Ulf BERGER-DELHEY, Law Office of Prof. Schweizer, Arabellastraße 21,
D-81925 MUNCHEN, GERMANY

Mr Gojko BERVAR, Journalists Association of Slovenia, DTV Slovenia, 1000 LJUBLJANA, Tavcarjeva 17, SLOVENIA

Mr Vahit BICAK, Police Academy, Anittepe, PK. 197, 06582 BAKANLIKLAR, ANKARA, TURKEY

Mr Guy BLACK, Director, Press Complaints Commission, 1 Salisbury Square, EC4Y 8JB, LONDON, UNITED KINGDOM

Mr Franco BONDIN, Senior Counsel for the Republic, Office of the Attorney General, The Palace, VALLETTA CMRO2, MALTA

Mr Alexander BORISOV, Dean and Professor, Department of International Information of the Moscow State Institute of International Relations, 76 Vernadskogo Prospect, 117454 MOSCOW, RUSSIA

Ms Alison CLARK, News International PLC, PO Box 495, Virginia Street, LONDON E1 9XY, UNITED KINGDOM

Mr Charles COLLIER-WRIGHT, Mirror Group, One Canada Square, Canary Wharf, LONDON E14 5AP, UNITED KINGDOM

Ms Catherine COURTNEY, The Newspaper Society, 74 Great Russel Street, WC1B 3DA, LONDON, UNITED KINGDOM

M. Bernard DELATTRE, Dernières Nouvelles d’Alsace, 17-21 rue de la Nuée Bleue, BP 406 R1, 67077 STRASBOURG Cedex, FRANCE

Mr Rui FERREIRA, Member, High Authority for the Mass Media, Av. D. Carlos I, 130-6°, 1249 068 LISBOA, PORTUGAL

M. Philippe GERARD, Conseiller juridique, European Broadcasting Union, Ancienne Route, 17A, Case Postale 67, CH - 1218 GRAND SACONNEX/GENEVE, SWITZERLAND

Mrs Bilge GÜREKEN, Expert, International Relations Department, Radio and Television Supreme Council, Bilkent Plaza B2 Blok, 06530 BILKENT, ANKARA, TURKEY

Ms Katharina HADJIDIMOS, OSCE, Office of the Representative on Freedom of the Media, Kärntner Ring 5-7, Top 14, 2DG, 1010 VIENNA, AUSTRIA

Ms Petra HAGELSTAM, Ministry for Foreign Affairs, PB 176, 00161 HELSINKI, FINLAND

Mr Uwe J. HOCHRATHNER, Legal Department, Südwestrundfunk, Hans-Bredow-Strasse,
76530 BADEN-BADEN, GERMANY

Mr Nicholas HODGSON, Lord Chancellor’s Department, Selborne House, 54-60 Victoria Street, LONDON SW1E 6QW, UNITED KINGDOM

Ms Axelle HOVINE, Services juridique et technique de l’information du Premier Ministre, 69 rue de Varenne, 75700 PARIS, FRANCE

Mr Gent IBRAHIMI, Ministria et Reformave Legjislative, Keshilli i Ministrave, Bulevardi “Deshmoret e Kombit”, TIRANA, ALBANIA

Ms Tytti ISOHOOKANA-ASUNMAA, Chairperson of the Sub-Committee on the Media, Committee of Culture and Education, Parliamentary Assembly, Council of Europe, F-67075 STRASBOURG

Ms Helena JÄDERBLOM, Legal Adviser, Ministry of Justice, 103 33 STOCKHOLM, SWEDEN

Mr Franciso JAVIER CABRERA BLASQUEZ, European Audiovisual Observatory, 76, allée de la Robertsau, 67000 STRASBOURG, FRANCE

Mr Pär-Arne JIGENIUS, The Press Ombudsman, Kungsholmstorg 5, PO Box 12708,
112 94 STOCKHOLM, SWEDEN

M. Ioannis KTISTAKIS, Expert, Ministère des Affaires Etrangères, ATHENES, GREECE

Mr Ronald KOVEN, World Press Freedom Committee, 9, place du Président Mithouard,
75007 PARIS, FRANCE

M. Alexandre LEVY, Reporters sans Frontières, 5 rue Geoffroy-Marie, 75009 PARIS, FRANCE

M. Jacques LOUVIER, Chef du département juridique de la presse écrite, Service juridique et technique de l'information du Premier Ministre, 69, rue de Varenne, 75007 PARIS, FRANCE

M. Miroslaw LUCZKA, Représentant Permanent Adjoint de la Pologne auprès du Conseil de l’Europe, 2, rue Geiler, 67000 STRASBOURG, FRANCE

Mrs Monica MACOVEI, Lawyer, Romanian Helsinki Committee, str. H. Tonitza n° 8, BUCHAREST, ROMANIA

Ms Judith MANN, Private Secretary to HRH The Princess of Hanover, Palais Princier, BP 518,
MC 98015 PRINCIPAUTE DE MONACO

Mr Norman McLEAN, Deputy Director, Broadcasting Standards Commission, 7, The Sanctuary, LONDON SW1P 3JS, UNITED KINGDOM

Ms Angela MILLS, European Publishers Council (EPL), 49 Park Town, OXFORD, OX2 6SL, UNITED KINGDOM

M. Bruno NEDELEC, Magistrat de l’ordre judiciaire, détaché, Ministère des Affaires Etrangères, Direction des Affaires Juridiques, 37 quai d’Orsay, 75007 PARIS, FRANCE

R. Père Gabriel NISSIM, O.P., 41 Boulevard de la Victoire, 67000 STRASBOURG, FRANCE

Ms Audrone NUGARAITE, Director of the Institute of Journalism, Vilnius University, Maironio 7, 2600 VILNIUS, LITHUANIA

M. Pedro OSONA, Direction Générale X/C/1, Rue de la Loi /Wetstraat 200, Commission Européenne, B-1049 BRUXELLES

Mr Erik PETERSON, Ministry of the Interior, Pikk 61, 15065 TALLINN, ESTONIA

Mrs Teodora PETROVA, Comité des Postes et Telecommunications, 6 Gourko Street, 1000 SOFIA, BULGARIA

Mrs Vesna POPOSKA, Advisor to the Minister of Information, Djuro Djakovic 64, 91000 SKOPJE, “THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA”

Ms Danguole ROKUIZIENE, Lithuanian Radio and Television, Konarskio 49, VILNIUS 2015, LITHUANIA

M. Dietrich ROSS, Juge, Tribunal de Gde Instance d’Offenburg, Wiesenstr. 6, 77704 OBERKIRCH, GERMANY

Mr Nikolaos ROUSSIS, Union of Periodical Press Journalists, Press Representative of the Council of Europe in Greece, Sikelianou 9, KORIDALLOS, 18122, GREECE

Ms Karen SANIG, Mishcon de Reya Solicitors, 21 Southampton Row, LONDON WC1B 5HS, UNITED KINGDOM

Ms Erika SIBERTS, Badische Zeitung, freie Journalistin, Kreuzerweg 28, 77955 ETTENHEIM, GERMANY

Mr Radomir TCHOLAKOV, Chief Legal Adviser, Bulgarian National Television, 29 San Stefano Str., 1504 SOFIA, BULGARIA

Mr Lutz TILLMANNS, Managing Director, German Press Council, Gerhard-von-Arc-Str. 8,
53111 BONN, GERMANY

Me Alain TOUCAS, Avocat à la Cour, 10 boulevard Suchet, 75016 PARIS, FRANCE

Mrs Pinar ÜLKÜLÜ, Expert, Radio and Television Supreme Council, Bilkent Plaza B2 Blok,
06530 BILKENT, ANKARA, TURKEY

Mr Antonio VELLUTO, European Federation of Journalists, 266 rue Royale, B - 1210 BRUSSELS

Prof. Patrick WACHSMANN, Université Robert-Schumann, 6, avenue de la Liberté,
67000 STRASBOURG, FRANCE

SECRETARIAT

Mr Pierre-Henri IMBERT, Director General of Human Rights / Directeur Général des Droits de l’Homme

Mr Hanno HARTIG, Head of Media and Equality Department, Directorate General of Human Rights / Chef du Service Médias et Egalite, Direction Générale des Droits de l’Homme

Mr Christophe POIREL, Head of Media Division, Directorate General of Human Rights / Chef de la Division Media, Direction Générale des Droits de l'Homme

Mr Rüdiger DOSSOW, Secretary to the MM-S-HR / Secrétaire du MM-S-HR, Administrator, Media Division, Directorate General of Human Rights / Administateur, Division Media, Direction Générale des Droits de l'Homme

* * *

EUROPEAN CONVENTION ON HUMAN RIGHTS (Rome, 4 November 1950) 

ARTICLE 8

Right to respect for private and family life
 

    1. Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 10

Freedom of expression
 

    1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

    2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

* * *

CONTACTS 

Readers interested in further information on the themes discussed and presented in this volume may contact:

Rüdiger Dossow
Media Division
Directorate General of Human Rights
Council of Europe
67075 Strasbourg, France
Email: rudiger.dossow@coe.int

http://www.humanrights.coe.int/media


1 The acronym MM-S-HR stands for “Group of Specialists on Media Law and Human Rights”, the intergovernmental committee of experts under the Steering Committee on the Mass Media of the Council of Europe which has organised this conference.

2 Media and democratic culture, Report by Mr. J. Jarab, Committee on Culture and Education, Council of Europe, Parliamentary Assembly, 23 March 1999 (Doc. 8355).

3 Fr. Rigaux, Justice et presse: réflexions comparatives (Justice and the press: comparative thoughts), Journal des Tribunaux, 1996, p. 46, paragraph 21.

4 See also D. Evriginis, La jurisprudence de la Cour relative aux articles 8 et 10 de la Convention européenne des droits de l'homme (The case-law of the Court concerning Articles 8 and 10 of the European Convention on Human Rights), Boletin do Ministerio de Justicia, 1981, No. 7, pp. 347 et seq.

5 See, generally, D. Voorhoof, Critical perspectives on the scope and interpretation of Article 10 of the European Convention on Human Rights, Strasbourg, Council of Europe, Directorate of Human Rights, Files on the Mass Media No. 10, 1985.

6 J. Velu, Propos sur les normes applicables aux relations entre la justice et la presse (Observations on the norms applicable to relations between the judiciary and the press), Journal des Tribunaux, 1995, p. 580, paragraph 5.

7 G. Cohen-Jonathan, Liberté d'expression et publicité. L'article 10 de la Convention européenne des droits de l'homme (Freedom of expression and publicity. Article 10 of the Human Convention on Human Rights), Revue de Droit des Affaires Internationales, 1986, pp. 9 et seq.

8 J. Velu, Propos sur les normes applicables aux relations entre la justice et la presse (Observations on the norms applicable to relations between the judiciary and the press), op. cit., p. 581, paragraph 5.

9 Directorate of Human Rights, Case-law concerning Article 10 of the European Convention on Human Rights. 40 years of case-law 1959-99, Strasbourg, Council of Europe, 1999.


10 See M.-A. Eissen, La liberté d'expression dans la jurisprudence de la Cour européenne des droits de l'homme, La télévision transfrontalière en Europe dans la perspective des droits de l'homme (Freedom of expression in the case-law of the European Court of Human Rights, Transfrontier television in Europe from the standpoint of human rights), Baden-Baden, Nomos Verlagsgesellschaft, 1990, pp. 113 et seq.

11 Freedom of expression therefore covers both facts and value-judgments: while the existence of the former may be demonstrated, the truth of the latter is not susceptible of proof. Provided that the facts on which a journalist bases his value-judgment, as well as his good faith, are not in dispute, to convict him because he was unable, for the purpose of a value-judgment, to prove the truth of his statements amounts to an infringement of freedom of opinion, a fundamental part of the right secured by Article 10 (the Lingens judgment of 8 July 1986, § 46; the Oberschlick judgment of 23 May 1991, § 63; and the Schwabe judgment of 28 August 1992, § 34).

12 See M. Lévinet, L'incertaine détermination des limites de la liberté d'expression: reflexion sur les arrêts rendus par la Cour de Strasbourg en 1995-96 à propos de l'article 10 de la CEDH (The uncertain determination of the limits to freedom of expression: thoughts on the judgments delivered by the Strasbourg Court in 1995-96 in connection with Article 10 of the ECHR), Revue française de droit administratif, 1997, pp. 999 et seq.

13 Limitations may also result from the general provisions of the Convention itself. Thus, Article 15 authorises States to derogate, on certain conditions, from their obligations under the Convention in time of war or other public emergency threatening the life of the nation. Again, Article 17 provides that individuals and groups must not "engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention".

14 F. Ost, Le concept de démocratie dans la jurisprudence de la Cour européenne des droits de l'homme (The concept of democracy in the case-law of the European Court of Human Rights), Journal des Procès, 4 March 1998, p. 13.

15 See J. Velu, Propos sur les normes européennes applicables aux relations entre la justice et la presse (Observations on the European norms applicable to relations between the judiciary and the press), op. cit., pp. 582-583, paragraph 12.

16 P. Martens, L'irrésistible ascension du principe de proportionnalité (The irresistible rise of the principle of proportionality), Présence du Droit Public et des Droits de l'Homme. Essays in honour of J. Velu, Brussels, Bruylant, 1992, pp. 51 et seq.

17 P. Wachsmann, La Cour européenne des droits de l'homme et la liberté d'expression: renforcement ou affaiblissement du contrôle? (The European Court of Human Rights and freedom of expression: stronger or weaker supervision?) Essays in honour of G. Apollis, Paris, Pedone, 1992, pp. 151 et seq.

18 Thus, for example, national authorities are in a better position than the international judge to give an opinion on the requirements of morals, which vary in time and in space (the Handyside judgment of 7 December 1976, § 48).

19 P. Lambert, Les restrictions à la liberté de la presse et la marge d'appréciation des Etats au sens de la jurisprudence de Strasbourg (Restrictions on the freedom of the press and the State's margin of appreciation within the meaning of the Strasbourg case-law), Revue Trimestrielle des Droits de l'Homme, 1996, p. 152.

20 Ibid., p. 155.

21 M. Delmas-Marty, Vers une autre logique juridique: à propos de la jurisprudence de la Cour européenne des droits de l'homme (Towards a different legal logic: the case-law of the European Court of Human Rights), Recueil Dalloz-Sirey, 1988, p. 222.

22 P. Wachsmann, La Cour européenne des droits de l'homme et la liberté d'expression: renforcement ou affaiblissement du contrôle? (The European Court of Human Rights and freedom of the press: stronger or weaker supervision?), op. cit., p. 154.

23 See also the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, § 66.

24 See also the Goodwin judgment, § 39.

25 See, in particular, Resolution 428 (1970) of 23 January 1970 containing a declaration on mass communication media and human rights; Recommendation 582 (1970) of 23 January 1970 on the mass communication media and human rights; or Resolution 1003 (1993) of 1 July 1993 on the ethics of journalism.

26 Resolution (74) 26 of 2 July 1974 on the right of reply and the position of the individual in relation to the press.

27 Cf. Resolution on journalistic freedoms and human rights, adopted in December 1994 by the Fourth European Ministerial Conference on Mass Media Policy.

28 See, for example, the Parliamentary Assembly's Resolution 1165 (1998) on the right to privacy.

29 J. Velu, Propos sur les normes européennes applicables aux relations entre la justice et la presse (Observations concerning the European norms applicable to relations between the judiciary and the press), op. cit., p. 586, paragraph 23.

30 Ibid.

31 Fr. Rigaux, Introduction générale (General introduction), Revue Trimestrielle des Droits de l'Homme, 1993, special issue on freedom of expression, p. 7.

32 S. Greer, Les exceptions aux articles 8-11 de la Convention européenne des droits de l'homme (The exceptions to Articles 8 to 11 of the European Convention on Human Rights), Strasbourg, Council of Europe, Human Rights Files No. 15, 1997.

33 D. Voorhoof, Gerechtsverslaggeving, openbaarheid van rechtspraak en het recht op privacy (The reporting of court proceedings, the public nature of judicial decisions and the right to privacy) , Brussels, Ministry of Foreign Affairs, Seminar 26-27 November 1998, p. 194.

34 Fr. Rigaux, Justice et presse: réflexions comparatives (Justice and the press: comparative reflections), Journal des Tribunaux, 1996, p. 42.

35 Ibid.

36 S. Gurwith, Privacyvrijheid. De vrijheid om zichzelf te zijn (Freedom of privacy. The freedom to be oneself), The Hague, 1998.

37 See M. Lévinet, L'incertaine détermination des limites de la liberté d'expression: réflexion sur les arrêts rendus par la Cour de Strasbourg en 1995-1996 à propos de l'article 10 de la CEDH (The uncertain determination of the limits of freedom of expression: thoughts on the judgments delivered by the Strasbourg Court in 1995-1996 concerning Article 10 of the ECHR), Revue Française de Droit Administratif, 1997, pp. 999 et seq.

38 Fr. Rigaux, La protection de la vie privée et des autres biens de la personnalité (The protection of private life and the other assets of personality), Brussels, Bruylant, 1990.

39 Recommendation 428 (1970) containing a declaration on mass communication media and human rights, Yearbook of the Convention, vol. 13, 1970, p. 60, cited by O. De Schutter, La vie privée entre droit de la personnalité et liberté (Privacy between the right to personality and freedom), Rev. Trim. D.H., p. 831, paragraph 5.

40 Ibid.

41 See, among other works, H. Mazeaud, La protection de la vie privée (The protection of private life), Presses Universitaires d'Aix-Marseille, 1990; J. Ravanas, La protection des personnes contre la réalisation et la publication de leur image (The protection of individuals against the creation and publication of their image), Paris, L.G.D.J., 1978; J. Velu, Le droit au respect de la vie privée et ses limitations en droit belge (The right to respect for private life and the limitations thereof in Belgian law), Rapports au 9ème Congrès International de Droit Comparé, Teheran, 27 September - 4 October 1974, p. 417.

42 O. De Schutter, La vie privée entre droit de la personnalité et liberté (Private life between right of personality and freedom), op. cit., p. 827, paragraph 1.

43 Ibid., p. 839, paragraph 16.

44 Fr. Sudre, Les aléas de la notion de vie privée dans la jurisprudence de la Cour européenne des droits de l'homme (The vicissitudes of the concept of private life in the case-law of the European Court of Human Rights), Essays in homage to L.E. Petiti, Brussels, Bruylant, 1999, p. 687, paragraph 1.

45 Ibid., citing M.-T. Meulders-Klein, Vie privée, vie familiale et droits de l'homme (Private life, family life and human rights), Revue Internationale de Droit Comparé, 1992, p. 788.

46 Ibid., p. 688, paragraph 2.

47 See also F. Sudre, Les obligations positives de la jurisprudence européenne des droits de l'homme (Positive obligations in European human rights case-law), Revue Trimestrielle des Droits de l'Homme, 1995, p. 363.

48 Fr. Sudre, Les aléas de la notion de vie privée dans la jurisprudence de la Cour européenne des droits de l'homme (The vicissitudes of the concept of private life in the case-law of the European Court of Human Rights), op. cit., p. 690, paragraph 5.

49 See P. De Hert, Mensenrechten en bescherming van persoonsgegevens. Overzicht en synthese van de Europese rechtspraak 1955-1977 (Human rights and the protection of personal data. A survey and synthesis of European case-law), Jaarboek Mensenrechten, 1996-97, pp. 43 et seq.

50 Fr. Sudre, Les aléas de la notion de vie privée dans la jurisprudence de la Cour européenne des droits de l'homme (The vicissitudes of the concept of private life in the case-law of the European Court of Human Rights), op. cit., p. 689, paragraph 3.

51 Ibid.

52 Ibid.

53 Ibid., p. 701, paragraph 19.

54 Ibid. See, along the same lines, H. Mock, Le droit au respect de la vie privée et familiale, du domicile et de la correspondance (art. 8 CEDH) à l'aube du XXIè siècle (The right to respect for one's private and family life, one's home and one's correspondence at the dawn of the 21st century), Revue Universelle des Droits de l'Homme, 1998, pp. 239 et seq.

55 J. Velu, Propos sur les normes applicables aux relations entre la justice et la presse (Observations on the norms applicable to relations between the judiciary and the press), op. cit., p. 586, paragraph 23.

56 Fr. Rigaux, La protection de la vie privée et des autres biens de la personnalité (The protection of private life and the other assets of personality), op. cit., p. 214, paragraph 151; ID., La loi des judges, Paris, O. Jacob, 1997, p. 46. For a critical analysis, see S. Van Drooghenbroeck, Conflits entre droits fondamentaux et marge nationale d'appréciation. Autour de l'arrêt Chassagnou c. France du 29 avril 1999 (Conflicts between fundamental rights and the national margin of appreciation. The Chassagnou v. France judgment of 29 April 1999), Journal des Tribunax. Droit Européen, 1999, pp. 62 et seq.

57 R. Ergec, La liberté d'expression, l'autorité et l'impartialité du pouvoir judiciaire (Freedom of expression, authority and impartiality of the judiciary), Rev. Trim. D.H., 1993, p. 178.

58 J. Velu, Propos sur les normes applicables aux relations entre la justice et la presse (Observations on the norms applicable to relations between the judiciary and the press), op. cit., p. 587, paragraph 24.

59 European Commission of Human Rights, the A.K. v. the Netherlands decision of 6 April 1985. See also European Commission of Human Rights, the A. Baragiola v. Switzerland decision of 21 October 1993.

60 European Commission of Human Rights, the W.S.W. v. the United Kingdom decision of 10 July 1986.

61 Fr. Sudre, Les aléas de la notion de vie privée dans la jurisprudence de la Cour européenne des droits de l'homme (The vicissitudes of the concept of private life in the case-law of the European Court of Human Rights), op. cit., p. 704, paragraph 22.

62 Ibid.

63 B. Libois, Redéfinir la liberté de la presse (Freedom of the press redefined), in Les Médias entre droit et pouvoir, edited by G. Haarscher and B. Libois, Brussels, published by the Free University of Brussels, 1995, p. 7.


64 For example, Paragraph 14(vi) of Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe states that civil actions for privacy should cover the use by paparazzi of such devices.

65 “The Right to Privacy” (1890) 5 Harvard Law Review 193, pp. 211 and 196, respectively.

66 Resolution 1165 (1998), Right to Privacy

67 In 1992, Workman, R., wrote: “[A] solid definition of ‘privacy’ has eluded commentators”. “Balancing the Right to Privacy and the First Amendment” (1992) 29 Houston Law Review 1059, p. 1063.

68 Op cit., p. 195.

69 Godbout v. Longueuil (City) [1997] 3 SCR 844, para. 97.

70 Niemietz v. Germany, 16 December 1992, 16 EHRR 97, para. 29.

71 See, for example, National Media Ltd. and Ors v. Bogoshi, 1998(4) SA 1196 (SC), at 1212.

72 In Aubry v. Éditions Vice-Versa Inc. [1998] 1 SCR 591, para. 26, Canadian Supreme Court Chief Justice Lamer noted: “It is inevitable that the concept of public interest is imprecise.”

73 It is both a criminal and a civil wrong in France. See Article 226 of the New Penal Code and Article 9 of the Civil Code. It is a civil wrong in the US and in some Canadian jurisdictions, for example, British Columbia. See Nader v. G.M., 307 NYS 2d 647 (1970), and the Privacy Act, RSBC 1996, c. 373, respectively.

74 See Clause 4 of the Code of Practice of the UK Press Complaints Committee.

75 See, for example, Goodwin v. United Kingdom, 27 March 1996, 22 EHRR 123, para. 40.

76 See Marckx v. Belgium, 13 June 1979, 2 EHRR 330, para. 31.

77 Aubry v. Éditions Vice-Versa Inc., op cit., para. 8.

78 Dudgeon v. United Kingdom, 22 October 1981, 4 EHRR 149.

79 Malone v. United Kingdom, 2 August 1984, 7 EHRR 14.

80 Funke v. France, 27 January 1993

81 See Gaskin v. United Kingdom, 7 July 1989, 12 EHRR 36, para. 52.

82 See, for example, Article 28 of the Freedom of Information Act, No. 13 of 1997, Republic of Ireland.

83 Airey v. Ireland, 9 October 1979, 2 EHRR 305, para. 32.

84 Abdulaziz, Cabales and Balkandali v. United Kingdom, 28 May 1985, 7 EHRR 471, para. 67.

85 X and Y v. Netherlands, 26 March 1985, 8 EHRR 235, para. 24.

86 Airey, op cit., para. 37.

87 Op cit., paras. 41 and 49.

88 López Ostra v. Spain, 9 December 1994, 20 EHRR 277. See paras. 54-6.

89 Op cit..

90 Application No. 10871/84, Decision of 10 July 1986.

91 Application Nos. 28851/95 and 28852/95, Decision of 16 January 1998.

92 See Lingens v. Austria, 8 July 1986, 8 EHRR 103, para. 35.

93 Sunday Times v. United Kingdom, 26 April 1979, 2 EHRR 245, para. 62. These standards have been reiterated in a large number of cases.

94 Significantly, in Observer and Guardian v. United Kingdom, 26 November 1991, 14 EHRR 153, the Court held that a UK ban on publication of material affecting national security was legitimate before the material had been published in the United States but ceased to be legitimate once the material was effectively available in the UK.

95 Near v. Minnesota, 283 US 697 (1931), p. 718.

96 See, Lake v. Wal-Mart-Stores Inc., 30 July 1998, Minnesota Supreme Court, C7-97-263. See also, Restatement (Second) of Torts, § 652B-E (1977).

97 see, for example, Jersild v. Denmark, 23 September 1994, 19 EHRR1, para. 31

98 See Pompidou v. L’Express, 4 April 1970, Dorléac v. Sté Presse Office, 14 May 1975 and d’Estaing v. M. Ways, 15 October 1976, all decided by the Paris Court of Appeal.

99 Schneider v. Sté Union Editions Modernes, 5 June 1979, Paris Court of Appeal.

100 Op cit.

101 Ibid., paras. 57 and 61.

102 Ibid., paras. 58-9.

103 Lake v. Wal-Mart-Stores Inc., op cit. See also, Workman, op cit., pp. 1079-80.

104 Edmonton Journal v. Alberta (Attorney General) [1989] 2 SCR 1326.

105 Attorney General of Nova Scotia v. MacIntyre [1982] 1 SCR 175, p. 185.

106 [1988] 2 SCR 122.

107 Ibid., p. 130.

108 Cox Broadcasting Corp. v. Cohn, 420 US 469 (1975), and The Florida Star v. B.J.F., 491 US 524 (1989).

109 California Civil Code, S. 1708.8, The Right to Privacy, 1 January 1999.

110 Op cit., Paragraph 14(vi).

111 See in particular the speech of Lord Goff in the Spycatcher case: Attorney-General v Guardian Newspapers (No.2) [1990] 1 AC 109, 281.

112 (1998) 25 EHRR CD 106.

113 (1890) 4 Harvard L. Rev. 193.


114 Decision of 16 Dec. 1992, Series A, No. 251-B: (1993) 16 EHRR 97.

115 Art. 1.

116 Judgment of 19 February 1997.

117 Judgment of 17 Oct. 1986, Series A, No. 106; (1987) 9 EHRR 56.


118 Judgment of 25 March 1992, Series A, No. 232-C, (1994) 16 EHRR 1.

119 This is the fourth of the torts in Prosser's famous classification of privacy : the others are (i) intrusion on the plaintiff's seclusion or solitude, or into his private affairs; (ii) the publication of embarrassing private facts; (iii) the presentation of the plaintiff in a false light: see W. Prosser, 48 California L. Rev. 383.

120 Copyright, Designs, and Patents Act 1988, s. 85.

121 Copyright Act 1956, s. 43.


122 See the Younger Committee Report on Privacy (1972, Cmnd. 5012), paras. 665-66.

123 As in Art. 9 of the Civil Code in France, introduced by Law of 17 July 1970.

124 See R. v Legal Aid Board, ex parte Kaim Todner [1998] 1 All ER 541, where the Court of Appeal held a firm of solicitors had no right to anonymity when it challenged the legality of a decision withdrawing its franchise to provide legally aided services.

125 PCC Report No. 29 (1995), 26.

126 See the decision of the French Cour de Cassation of 20 Oct. 1993, D. 1994, 594, holding that publication of list of 100 richest French people did not affect the intimacy of their private life.

127 Ibid., p. 6.


128 CA Paris, 27 May 1997: JCP 1997 II, 22894.

129 Z v Finland, Judgment of 25 February 1997.

130  Shelley Films v Rex Features [1994] Entertainment and Media Reports 134 (the judge stopped publication of photos of Robert De Niro on a film set, taken without permission).

131 See Laws J. in Hellewell v Chief Constable of Derbyshire Police [1995] 1 WLR 804, 805.

132 See n. 8 above.


133 See the Princes Caroline of Monaco case, I, NJW 1996, p. 861.

134 See Leander v Sweden, Judgment of 26 March 1987, Series A, No. 116, (1987) 9 EHRR 433; Z v Finland, Judgment of 25 Feb. 1997.


135 Sunday Times v UK, Judgment of 26 April 1979, Series A No. 30, (1979-80) 2 EHRR 245.

136 For an account of US privacy law, see D.A. Anderson, 'The Failure of American Privacy Law', in Protecting Privacy (ed. by B.S. Markesinis, Oxford, 1999), 139.

137 See M.B. Nimmer,'The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy', (1968) 56 California L. Rev. 935.


138 New York Times v Sullivan 376 US 254 (1964).

139 Emphasis added. Children are therefore the only group singled out for special protection.

140 PCC Report, No. 37 (1995) p. 5.

141 It is the second version of the argument which persuaded the House of Lords not to grant a permanent injunction to stop publication of extracts from Spycatcher; the book was available in the USA and many other countries.


142 Wanckel, Persönlichkeitsschutz in der Informationsgesellschaft, 1999, pp. 16 ff., 85 ff.with further references; BVerfGE 65, 1; Helle, Besondere Persönlichkeitsrechte im Privatrecht, 1991, S. 45 f. with further references.

143 Resolution 1165 (1998)

144 see above footnote No. 2

145 Bundesverfassungsgericht, BVerfGE 12, 113 ff.

146 see above footnote No. 2

147 decision of 16th December 1992, Series A no. 251 B, pp. 33 - 34, par. 29 = EuGRZ 93, 65 ff.

148 BGH, decision of 19th December 1995, BGHZ 131, 331 = NJW 1996, 1128

149 Heisig, pp. 118

150 Cour d’ Appell Paris, 12th March, 1986, D 1986, S. C., 445; Heisig, pp. 86 ff., 223, with further references.

151 BGH, decision of 19th December 1995, BGHZ 131, 331 = NJW 1996, 1128

152 Heisig, pp. 121 with further references

153 see above footnote No. 10

154 see above footnote No. 11

155 Brömmekamp, Die Pressefreiheit und ihre Grenzen in England, 1997, pp. 100 ff. with further references.

156 Kaye v. Robertson (1991) FSR 62 (C.A.); Brömmekamp, pp. 105 f.

157 Brömmekamp, pp. 100 ff.,

158 established by BGH, decision of 15th November 1994, BGHZ 128, 1 = NJW 95, 861 (864)); BVerfG, decision of 14.02.73 (BVerfGE 34, 296 – “Soraya”)

159 BGH, decision of 12th December 1995; NJW 96, 985

160 Resolution 1165