Doc. 8130
3 June 1998

Right to privacy

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Walter Schwimmer, Austria, Group of the European People's Party

Summary

Should a new convention be drawn up to protect the right to privacy? This is the question dealt with by this report, in the light of the hearing held on this theme in December 1997. The report concludes that the right to privacy is protected by Article 8 of the European Convention on Human Rights, which not only protects against interference by public authorities, but also against interference by private persons or institutions. However, this right sometimes conflicts with the right to freedom of expression guaranteed by Article 10 of the Convention and which is fundamental to a democratic society. The problem arises particularly where public figures are concerned.

It is with a view to reaching a balance between the right to privacy and the right to freedom of expression that the resolution calls not for a new convention but for the drawing up of guidelines.

I. Draft resolution

1.       The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life.

2.       On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised.

3.       In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media.

4.       The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as “the right to live one’s own life with a minimum of interference”.

5.       In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition.

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 a stimulus to sales.

7.       Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

8.       It is often in the name 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.

9.       Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts.

10.       It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one’s private life and the right to freedom of expression.

11.       The Assembly reaffirms the importance of every person's right to privacy, and of the right to freedom of expression, as fundamental to a democratic society.

12.       However, the Assembly points out that the right to privacy afforded by Article 8 of the European Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media.

13.       The Assembly believes that, since all member states have now ratified the European Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted.

14.       The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy containing the following guidelines, or if such legislation already exists, to supplement it with these guidelines:

i. express, unambiguous permission should be required before making public photographs, video, film or text which are in no way connected with the public role of the person;

ii. compensation for an invasion of privacy, in particular financial compensation, should be sufficient to act as a deterrent;

iii. editors should be rendered liable for invasions of privacy by their publications, as they are for libel;

iv. economic penalties should be envisaged for publishing groups which systematically invade people’s privacy;

v. following or chasing a person in a manner which causes him or her to have a reasonable fear or bodily injury, in order to photograph, film or record him or her should be prohibited;

vi. a civil action (private lawsuit) by the victim should be allowed against a photographer or a 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.

15.       It invites those governments which have not yet done so, to ratify without delay the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.

II. Explanatory memorandum by Mr Schwimmer

A.       Introduction

1.       The accident in the late summer of 1997 which cost the Princess of Wales her life and, above all, the accusations levelled at the photographers, the "paparazzi", believed to be responsible for that accident have prompted the Parliamentary Assembly to consider the issue of the right to privacy.

2.       Its tragic nature aside, this event raises the question of the right of individuals, in particular public figures, to respect for their private lives. To what extent is that right guaranteed?

3.       It is not for the first time that the Assembly is occupied with these questions. In 1970, the Assembly adopted Resolution 428 (1970) containing a declaration on mass communication media and human rights. This Declaration deals with three main topics:

a. Status and independence of the press and other mass media

b. Measures to secure responsibility of the press and other mass media

c. Measures to protect the individual against interference with his right to privacy.

4.       Journalists argue that intrusions into personal privacy, particularly that of public figures, can be justified on the ground of freedom of expression. They also point out that there is a demand for news on the part of readers, who are eager for details about the private lives of public figures. In sum, journalists allege that they are merely seeking to satisfy their readers' appetite for sensational news, for scoops, what might even be called their voyeuristic tendencies.

5.       It was this situation which one newspaper summed up in the headline "Two million paparazzi", referring to the two million readers who pounced on the newspaper articles and the photographs of the accident, the inference being that without the demand there would be no supply. Indeed … this is a familiar argument already proffered in other cases such as that of drug abuse.

6.       Where does private life begin and where does it end? Do public figures enjoy the same right to privacy as other persons?

7.       The Assembly reacted by holding a current-affairs debate on the right to privacy during its September 1997 session, less than one month after the accident.

8.       At the same time, a motion for a resolution (Doc. 7897) was tabled, wherein the signatories expressed the view that it was "urgent to consider the elaboration of a European Convention on Privacy which will among its principles protect the privacy of the legitimate behaviour of individuals from photography without approval and permission." The motion was referred to the Committee on Legal Affairs and Human Rights for a report.

9.       Having been appointed as rapporteur by that committee, I proposed a hearing on the right to privacy, which was held in Paris on 16 December 1997. The programme of the hearing is attached hereto as Appendix I. The minutes of the hearing are reproduced in document AS/Jur (1998) 11 rev.

10.       Although it was not possible to review the situation in each member state in turn, it is clear that the position varies considerably from one country to another. In some countries, in particular the United Kingdom, privacy is afforded no protection under the law, and the press is allowed almost free rein. Elsewhere, especially in France, extremely strict protective legislation has been passed. Between these two extremes a wide variety of situations exist.

11.       However, despite the guarantees, invasions of personal privacy are an extremely frequent occurrence, including in countries with specific legislation intended to protect people's private lives.

12.       Journalists justify such intrusions on the ground of freedom of expression. An attempt must therefore be made to define privacy and to determine its scope. At what point does privacy come into conflict with freedom of expression? Should the fact that someone is a public figure entail a restriction on that person's right to privacy? Is freedom of expression absolute in nature?

13.       Only after these questions have been answered can we try to determine whether new legal instruments are needed, whether it should be left to the courts to set the rules or even whether the profession – journalists themselves – should draw up its own code of ethics.

B.       The right to privacy

      1.       Attempt at a definition: What is privacy?

14.       Both the right to privacy and freedom of expression are guaranteed by the European Convention on Human Rights, which is binding on all Council of Europe member states.

15.       Article 8 provides:

16.       But, as there is no absolute right, paragraph 2 sets out restrictions:

17.       The European Court of Human Rights has handed down a number of leading decisions on the substance of this right. In its Niemietz v. Germany judgment it ruled that the notion of private life could be extended to include professional activities.

18. The above-mentioned Declaration on mass communication media and human rights in Resolution 428 (1970) states:

19.       Professor Rodotà, who chairs the Italian Privacy Commission, defines privacy as the right to control use of one's personal data.

20.       The European Union Directive 95/46/EC on the protection of individuals with regard to the processing of personal data, adopted in 1995, guarantees certain aspects of privacy and requires the Union's member states to comply with its provisions, in particular those on protection of privacy. This Directive specifies and expands on the principles of the Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data (Convention No 108).

21.       Almost everyone who took the floor at the hearing concurred that privacy is more than a private right; it is a freedom and, as such, must be afforded the same protection as freedom of expression, not only by individuals but by society.

22.       The reason why this right is so frequently interfered with is that private affairs have become a commodity. Firstly, intrusions into the private lives of certain persons are a source of substantial profits, and, secondly, the damages awarded by the courts are insufficient compared with those profits. What is more, if the award of damages goes hand in hand with an order to publish a retraction, as is often the case, this again focuses public attention on a person who no longer wanted such attention. In principle, the persons concerned are not seeking money, but wish to be left in peace. However, as the journalists point out, it is true that public figures sometimes voluntarily contact the media, as they need media attention to remain in the public eye, in other words to preserve their fame. It should also be said that readers frequently show an interest in the private lives of public figures.

      2.       Are public figures forbidden a private life?

23.       In French case-law, for example, Article 9 of the Civil Code, which provides that "Everyone shall be entitled to respect for his or her private life", has been interpreted as being applicable to "everyone" without exception, and public figures therefore have the same right to respect for their privacy as anyone else.

24.        The above-mentioned Declaration in Resolution 428 (1970) states:

25.       What meaning should be given to the term "public life"? The criteria by which it is defined include, for instance, the holding of public office and/or the use of public resources.

26.       As we have already mentioned, this does not suffice to deprive individuals of the right to protection of their privacy. Nevertheless, subject to the limits laid down in the Convention on Human Rights itself, it may be legitimate to inform readers, who are also voters, when persons holding public office commit certain misdeeds or behave in certain ways, including in the private sphere.

27.       Here we are touching on the point where the right to privacy and freedom of information converge.

C.       The right to information

28.       The right to information and its corollary, freedom of expression, are conditions of democracy. The European Court of Human Rights made this clear in its Handyside v. United Kingdom judgment. The Court held, in substance, that freedom of expression constituted one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every individual. Subject to paragraph 2 of Article 10, it was applicable not only to information or ideas that were favourably received or regarded as inoffensive, but also to those that shocked or disturbed the state or any sector of the population. Such were the demands of the pluralism and tolerance without which there was no democratic society.

29.       Article 10 of the European Convention on Human Rights guarantees freedom of expression in the following terms:

30.       This freedom is likewise not absolute and is subject to certain restrictions:

31.       Again in the Handyside case, the Court asserted that not only did the media have a duty to disseminate information and ideas, but the public also had a right to receive them.

      2.       The scope of freedom of expression

32.       At this stage it is important to differentiate between categories of the media. It is necessary to distinguish the general-interest press, whose task, as the Court pointed out, is to disseminate information and ideas, from the investigative press which reveals certain items of news that were not intended to be made public but serve the interests of democracy.

33.       Then there are the other categories of the media which do not help to keep the public informed but assert a right to "tell people the truth" and will not stand for being penalised when they publish bogus pieces of news.

34.       In their view a public figure is public property, as one representative of the press pointed out at the hearing. She thought it obvious that a public figure's right to privacy was curtailed by what readers had a right to know about him or her, that is to say everything! In addition, any attempt at regulation is perceived as a threat to the freedom of the press.

35.       This is the crux of the problem. What constitutes news and what constitutes an invasion of privacy? It is true that some pieces of scandal may qualify as news depending on whether or not the person concerned is a public figure.

36.       The difficulty lies in distinguishing what is a matter of freedom of expression and of information from what amounts to unhealthy curiosity.

D.       Conclusions

37.       It is necessary to reaffirm the importance, on one hand, of the right to privacy of both public figures and members of the general public and, on the other hand, of freedom of expression and of information. An effort must also be made to clarify the interface, where the right to privacy begins and the freedom of expression and information ends and vice versa, so that these two liberties border on each other seamlessly. Does this mean that protection of privacy must be reinforced? Should a convention be drawn up, as called for in the motion for a resolution?

38.       We have seen that the European Convention on Human Rights guarantees both the right to respect for one's private life and freedom of expression, and that some countries have passed legislation protecting personal privacy. We have likewise noted that there are as many invasions of privacy in those countries as elsewhere.

39.       It might therefore be asked whether it is necessary to add another convention to what already exists. The question is rather how to ensure the effectiveness of the existing protective measures.

40.        Should the press become self-regulating and draw up its own code of ethics? Although long reticent about the latter idea, the press now seems open to it, seeing therein a means of avoiding measures imposed by parliament or the courts. This would be in keeping with Recommendation 1215 (1993) on the ethics of journalism.

41.       It might be useful to recall and follow the Assembly's considerations and results contained in the Declaration on mass communication media and human rights (Resolution 428 (1970) (see Doc 2687, report of the Legal Affairs Committee) and especially paragraph C.7:

42.       Several avenues to strengthen the safeguards on the respect for private life were opened up at the hearing:

-       Journalists should no longer be able to take refuge behind "tacit approvals"; to make public photographs, videos, films or articles they must have the express, unambiguous consent of the person concerned. The penalty should, above all, have a dissuasive effect.

-       Since private affairs have become a commodity, the amends for an invasion of privacy must no longer be a token gesture, but tangible compensation. This should not lead to a form of censure or limit freedom of expression in any way. It should only be called for where it is absolutely obvious that the photos, videos, films, texts, etc. in question have no connection whatsoever with the public life of the person. The penalty should, above all, constitute a reparation.

43.       If the intention is to consider repressive measures, the following might be envisaged:

-       treat invasions of privacy as defamation and make editors liable for defamatory statements;

-       impose economic penalties on press groups which systematically invade people's privacy;

-       lastly, an extreme measure would be compulsory closure.

44.       In this connection we should also observe recent developments in the USA. There, on 18 February 1998, California Senator Dianne Feinstein and Senate Judiciary Committee Chairman Orrin Hatch announced legislation aimed at curbing privacy abuses and harassment by tabloid media known as "paparazzi". The legislation, called the Personal Privacy Protection Act, would make it a crime to persistently follow or chase a person in a manner which causes them to have a reasonable fear of bodily injury in order to film or record them for commercial purposes. The Bill also allows civil actions to be brought against paparazzi who use high-powered lenses, microphones or even helicopters to trespass for commercial purposes.

45.       It might also be envisaged that the Council of Europe issue an instrument completing the EU Directive by addressing issues which it disregards and extending its geographic scope.

APPENDIX I

Programme of the hearing

9.30 am       Opening of the hearing and introduction by Mr Walter Schwimmer,

      Rapporteur of the Committee on Legal Affairs and Human Rights

10 am       Theme I - The right to privacy

      Moderator: Mr Walter Schwimmer, Rapporteur

      a.       Statements by lawyers who have represented clients in cases concerning breaches of their right to privacy

      b.       State of national legislation on the protection of privacy

      c.       The protection of private life in the European Convention on Human Rights:

      d.       Questions and debate on the definition and scope of private life

12.30 pm       Lunch

2 pm       Theme II - The right to information

      Moderator: Mr Jacques Baumel, Committee on Culture and Education

      a.       Statements by representatives of agencies and editors of publications

      d.       Questions and debate on the scope and implementing provisions of the right to information

5.30 pm       Close of the hearing

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Doc 7897, References Nos. 2200 and 2224 of 22 and 26 September 1997

Draft resolution adopted by the committee on 27 May 1998 with 24 votes in favour, 2 votes against and 2 abstentions

Members of the committee: MM Hagård (Chairperson), MM Schwimmer, Bindig, Jansson (Vice-Chairpersons), Mrs Aguiar, MM, Akçali, Arzilli, Bartumeu Cassany, Besostri, Bulic, Clerfayt, Columberg, Contestabile, Dees, Demetriou, Mrs Dumont, MM Enright, Fogaš, Forni, Mrs Frimansdóttir, MM Frunda, Fuhrmann, Fyodorov, Mrs Gelderblom-Lankhout, Ms Jäätteenmäki, MM Jaskiernia, Jeambrun, Kelam, Lord Kirkhill, MM Kostytsky, Mrs Krzyzanowska, MM Loutfi, Magnusson, de Marco, Martins, Marty, McNamara, Mészáros, Micheloyiannis, Moeller, Mozetic, Nastase, Németh, Pantelejevs, Pavlov, Mrs Plechatá, Mrs Pobedinskaya, MM Pollo, Polydoras, Poppe, Rippinger Robles Fraga, Rodeghiero, Simonsen, Solé Tura, Staciokas, Lord Steel, MM Sungur, Symonenko, Tahiri, Vishnyakov, Vyvadil, Weyts, Wittmann, Mrs Wohlwend.

N.B. The names of those members who took part in the vote are printed in italics.

Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge