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Doc. 8146
22 June 1998
Right to privacy
Opinion1
Social, Health and Family Affairs Committee
Rapporteur: Mr Gillbert Mitterrand, France, Socialist Group
INTRODUCTION
The report prepared by the Committee on Legal Affairs and Human Rights on the right to privacy provides abundant food for thought, rounded off, moreover, by an account of informative hearings.
On behalf of the Social, Health and Family Affairs Committee, I cannot but welcome Mr Schwimmer’s report: his draft resolution coincides with the principles which we believe should guide action by the Council of Europe member States aimed at re-establishing a more satisfactory balance between freedom of the press and information on the one hand, and an individual’s right to privacy on the other.
In fact, the Assembly has already considered this question on several occasions, notably in 1970 when it adopted Resolution 428 on mass communications media and human rights, and in 1993 when it adopted Resolution 1003 and Recommendation 1215 on the ethics of journalism, intended to protect the right to privacy effectively, without sacrificing freedom of the press.
Nevertheless, the rapid development and globalisation of information and communication technologies force us to re-examine the rules reconciling freedom of expression and the right to privacy. In addition, the public is expecting a response to the emotional reaction following the Princess of Wales’s fatal accident and to the most flagrant abuses in the daily and weekly press, which attract less attention but cause just as much anguish to the victims and their families.
The Assembly has already observed that the media explosion resulting from the growth of new technologies, their variety, their high degree of penetration and the profitable exploitation of morbid curiosity, mean that these two freedoms can no longer coexist in harmony.
The Social, Health and Family Affairs Committee further proposes that the Assembly reassert that the rights and freedoms recognised in the European Convention on Human Rights, including those of privacy and a family life, should be observed without any distinction whatsoever, in accordance with Article 14, which prohibits any discrimination.
Thus, basing ourselves on analysis of the European Convention on Human Rights, we can propose more specific wording for certain of the proposals in the draft resolution.
I. ANALYSIS OF THE LEGAL FOUNDATIONS IN THE EUROPEAN CONVENTION ON HUMAN RIGHTS
For the sake of clarity, it is worthwhile to take a closer look at the articles in the 1950 Convention that are involved in the conflict between respect for privacy and freedom of information.
Firstly, the right “to respect for (…) private and family life” is specifically enshrined in the Article 8 of the Convention. For its part, “freedom of expression”, which includes “the right to impart information” is provided for in Article 10 of the same Convention.
However, these two articles are not entirely alike, even though they appear to be drafted along the same lines: assertion of the right, followed by recognition of the potential for regulation.
Indeed the second paragraph of Article 8 places strict limits on potential interference by a public authority with regard to the right to privacy: any such interference must be “in accordance with the law” and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
In Article 10, on the other hand, the first paragraph, used to confirm the principle involved in the right, already states that “this article shall not prevent States from requiring the licensing of (…) enterprises”, while the second paragraph immediately states that the exercise of these freedoms (of expression and communication) carries with it “duties and responsibilities” and “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law”.
In addition, these formalities or penalties may not only be founded on the legitimate requirements previously listed in Article 8, but also on other expressly protected interests, “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”.
This being so, neither of these two rights, no more in fact than any of the rights recognised by the Convention, is absolute. There is therefore no question of a right to know everything about everything.
In addition, the Convention on Human Rights wisely states in Article 17 that “nothing in this Convention may be interpreted as implying for any State, group or person to 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”.
This Article, extended to groups and individuals and not merely applied to States, is therefore applicable to the media, and is of value in illuminating the range of protection afforded by Article 8.
It is clear that even if one claims that Articles 8 and 10 recognise rights of an equivalent scope, Article 17 prohibits an over-lax interpretation of Article 10 being used to minimise the scope of Article 8. Freedoms do not threaten freedoms: abuses do.
In addition, it should be remembered that when the European Court of Human Rights has ruled on cases concerning the respective scope of Articles 8 and 10 of the Convention, it has stated that Article 8 should be considered as the lex specialis, which therefore takes priority over the lex generalis of freedom of expression in Article 10.
Thus, analysis of the provisions in the European Convention on Human Rights leads us, at the very least, to conclude that the rights recognised therein are neither absolute nor graded, and in any case, certainly not in such a way that Article 10 takes precedence over Article 8.
The importance of the statement in Article 8 of the European Convention on Human Rights has been reaffirmed by the recent Convention on Human Rights and Biomedicine, opened for signature on 4 April 1997, which states in Article 10: “Everyone has the right to respect for private life in relation to information about his or her health”.
II. TOWARDS A NEW BALANCE BETWEEN THE RIGHT TO PRIVACY AND THE RIGHT OF INFORMATION
Having reviewed the principles, a balance has to be struck between these rights. However, given the constant development of individual rights and public freedoms in the Council of Europe member States, the question nowadays is less one of providing protection for the individual against interference by the State than of finding a way to reconcile the right to privacy and freedom of information.
That tragic incident almost a year ago, the death of the Princess of Wales, which clearly resulted from a wish to escape scoop-hunting journalists, reminded us how correct the authors of the 1950 Convention had been in their vision, when they immediately stipulated that freedom of expression and freedom to impart information entails duties and responsibilities.
The considerable growth in information technologies and the technical innovations enabling them to reach a large number of people and also to communicate their messages extremely quickly make it vital to re-examine the legal aspects of the essential balance between freedom of information and the protection of privacy.
It is in this vein that the Social, Health and Family Affairs Committee wishes to add to the draft resolution submitted by the Committee on Legal Affairs and Human Rights, particularly by emphasising protection of the rights that constitute privacy.
Some of these rights may refer to aspects of family life, or to information about a person’s health, information which everyone is entitled to protect from public intrusions.
The Council of Europe recently prided itself on adopting a Convention on Human Rights and Biomedicine (opened for signature on 4 April 1997), which is clearly an essential element of a “European ethical model” that takes specific account of scientific progress.
In considering privacy safeguards, we cannot call into question the protective provisions that the Assembly, in four successive debates, has urged the Committee of Ministers to take into account.
How can we justify a situation where a person affected by a very serious illness, such as AIDS, can be guaranteed the strictest of confidentiality from his doctors under Article 19 of the Convention on Biomedicine, but cannot prevent the media from publicising the fact if, by chance, they should obtain this information?
It should be added that Article 14 of the European Convention on Human Rights, which prohibits any discrimination amongst individuals, does not authorise the view that some persons are entitled to keep information on their private lives secret, whilst others, due to their participation in public life, do not enjoy the right to respect for privacy.
In fact, any person with a role in public life has the right to protection of his or her privacy, except in limited cases where it might have an impact on public life. The fact that an individual is in the news does not deprive them of the right to privacy.
Public figures are asking for no more but also no less than other people, while at the same time they endure more intrusions, appeals, and restrictions, and are obliged to adopt attitudes of greater care and prudence.
It is generally accepted that individuals’ reputations should be respected and that information and comments regarding their private lives should not be published unless this serves a legitimate public interest such as the reporting of a criminal offence, with due respect of the law. No other motive could be a legitimate interest, in the absence of a definition included in any code of professional practice applied in the territory in question.
The concept of “legitimate public interest” can usefully serve to compensate for the absence of a legal definition of privacy, or the difficulty in drawing a line between private and public life. It appeals to ethics, conscience and professional practice. Under no circumstances can “legitimate public interest” be taken to mean the commercial interests of the media or the mere satisfaction of public curiosity.
Without a legitimate public interest, an invasion of privacy can be justified only when the person involved agrees and authorises publication. Such authorisation can only be express, unambiguous and specific. Even if repeated, this agreement gives the media no right to permanent information about the private life of others. Even when they are solicited, it is for the media to decide whether or not to publish. There is nothing that obliges them to do so, unless they claim to be content with being a servile press.
It should be noted that the agreement and presumed benefit to the consenting individual are counter-balanced by the commercial profits of publishing: freedom of trade should not be confused with freedom of the press. The benefits are therefore not one-sided, and reciprocal benefit gives no particular advantage to one side or the other.
On the other hand, where the published material concerns public or professional life, there is a tacit but unambiguous agreement on the part of the individuals concerned, demonstrated by the fact that they have exposed themselves to the public gaze.
Public interest is always legitimate where the law has been violated, whether in public or private life, with the reservation that reporting of a criminal offence fully respects existing laws. This justifies investigative journalism and is part of the process whereby citizens receive information. This instance apart, public interest is never legitimate when private life has no bearing on the exercise of a public role, in the absence of a code of professional practice, or when the principle of protection of professional secrecy is being observed.
There is no doubt that the knowledge that such and such a star or political figure is ill or has difficulties in his or her private life is not necessarily indicative of morbid curiosity, in that the impression that human experience is the same for everyone has always helped people to surmount individual problems: however, the people who are actually experiencing these problems should be allowed to make the decision about sharing their sufferings or confronting them with discretion. This is respect for the principle of free will.
Individuals are free to determine the limits of what can be made public with regard to their private lives, and a public figure cannot be permanently deprived of that ability. Any discrimination is a form of bondage. The fact that media editors may make a selection from illicitly-obtained material does not alter their responsibility.
Finally, if Article 10 of the European Convention on Human Rights places the right to impart information among human rights and fundamental freedoms, it is because we all agree to view it as an essential mechanism in democracy: there is no enlightened vote, and therefore no truly free universal suffrage without freedom of information, no debate on society without good-quality information. Respect for privacy should be all the stricter in that we at the same time demand more transparency in public life.
On the other hand, the dissemination of information on a person’s private life, without that person’s agreement, is an invasion of privacy, dictated by the greed of the profit motive, and of no benefit whatsoever for democracy. This is why, in the second paragraph of Article 10, mentioned above, the Convention has expressly provided for penalties in this area.
III. PROPOSALS FOR AMENDMENTS
In an effort to clarify some of the wording with a view to striking a balance between the freedom of information and the right to privacy in keeping with the new situation of the media, the Social, Health and Family Affairs Committee proposes a number of amendments to the draft resolution.
Amendment no.1:
Our first suggestion concerns the very nature of the text submitted for adoption by the Assembly. We propose that in the title of the draft text the word resolution be replaced by recommendation.
The Committee on Legal Affairs and Human Rights is proposing a mere resolution, which would mean that its contents are addressed only to the member States and not to the Committee of Ministers.
Considering that compartmentalised national regulations are more or less totally ineffective, it seems to us that, in view of what is at stake, the Committee of Ministers should be asked to launch work on a Convention establishing a framework of minimum standards and above all providing a consistent response to the growing number of violations of privacy which will most probably continue to increase more and more in the future owing to transfrontier information networks.
It is true that the Committee of Ministers has just adopted (on 12 May 1998) “Guidelines for the protection of privacy on the Internet”.
But in such a crucial area we cannot content ourselves with a mere resolution. The Council of Europe cannot stand by in silence as communications networks grow up which can disseminate - with almost immediate effect and irrespective of all national frontiers and laws - criminal messages, racist or negationist propaganda, incitements to terrorism, images of child pornography and offers of contacts with paedophile networks.
When adopting, in April 1998, Recommendation 1371 on abuse and neglect of children and, in September 1997, Resolution 1134 on the OECD and the world economy, the Parliamentary Assembly strongly condemned the use for criminal purposes of the Internet in particular and the new information and communication technologies in general, and advocated the creation of a coherent statutory framework.
Therefore, the Assembly should, quite logically, call on the Committee of Ministers to include the protection of other interests such as the right to privacy in a future Convention, which would also incorporate provisions harmonising legal classifications and organising legal co-operation.
It is proposed to amend the beginning of paragraph 8 of the draft resolution as follows:
“It is in the name of a one-sided interpretation of the right to freedom of expression, …”.
It is not the role of the media to impose their one-sided view of the limits of privacy protected under Article 8 of the European Convention on Human Rights, but up to individuals themselves. However, while the right to privacy may be lawfully invoked because of a legitimate interest such as secrecy about an individual’s health or love life, it is obvious that it should never be used as a means to conceal any form of offence or crime.
Amendment no.3:
It is proposed to reword paragraph 9 as follows:
“Like all other citizens, people who participate in public life are entitled to privacy in accordance with the provisions of Article 8 of the European Convention on Human Rights, which makes no distinction between people, and in keeping with the general principle of non-discrimination laid down in Article 14 of the same Convention”.
The present wording of this paragraph seems rather too vague. It is true that “certain facts relating to the private lives of public figures” may be of interest to citizens, but is this interest sufficient reason in itself to consider that it may be “legitimate for readers , …, to be informed of those facts”?
We should not forget that it was as a result of the emotion caused by the death of the Princess of Wales that there was a tide of public opinion in favour of clarifying the frontiers between freedom of information and everyone’s right to privacy, for public figures and ordinary citizens alike.
Furthermore, indiscriminately invoking the interest of readers encourages abuses. The gutter press already exists. There is also a growth in the number of messages conveyed via the new communication and information technologies which invade the privacy of famous people, including pictures taken of them without their consent.
We should make it clear that the guarantees provided for in Article 10 of the European Convention on Human Rights do not justify these abuses or the unhealthy curiosity of certain readers or Internet-users.
Amendment no.4:
Following paragraph 9, it is proposed to add a further paragraph, worded as follows:
“However, only a legitimate public interest such as a report on a criminal offence, with respect to existing law or as defined within the framework of a code of professional practice applied in the territory in question, may justify drawing the public’s attention to this information. The legitimate public interest is not served by the disclosure of a protected professional secret.”
Amendment no.5:
The following sentence should be added to the end of paragraph 11:
“These rights are neither absolute nor in any hierarchical order, since they are of equal value”.
Amendment no.6:
It is proposed to amend paragraph 13 as follows:
“The Assembly believes that, although all member states have now ratified the European Convention on Human Rights, and although many systems of national legislation comprise provisions guaranteeing this protection, the growth of the new communication and information technologies, makes it necessary to draw up a Convention providing for the mutual recognition of legal classifications of offences and the organisation of legal co-operation to prosecute violations of the rights guaranteed by the European Convention on Human Rights and in particular the dissemination of information contrary to the right to privacy established in Article 8 of the European Convention on Human Rights”.
This amendment justifies amendment no.1 as it asks the Committee of Ministers to draw up a Convention.
We can only approve the provisions of paragraph 14, which list the methods which States are expected to adopt to safeguard privacy. However, some of the wording could be fleshed out.
Amendment no.7:
In paragraph 14i, add the words “taking and” after “required before”.
Amendment no.8:
The following sentence should also be added to the end of paragraph 14i:
“Permission shall apply only to images and text explicitly referred to and within the limits of dissemination agreed to”.
It should be expressly stated that permission for the taking, recording or dissemination of photographs, video, film or text relating to private life applies only within the limits of the dates and the means of dissemination agreed to and does not amount to tacit consent to take or record these images or texts once again or publish them at a later date in a context not provided for by the notification of consent. It is up to the media to prove that it has permission.
Amendment no.9:
Sub-paragraph v. of paragraph 14 should be reworded as follows:
“Following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited”.
Paragraph 14 is intended to regulate the civil liability of those who invade other people’s privacy and even envisages economic penalties for “publishing groups which systematically invade people’s privacy”. However, although the provision aimed at prohibiting people from “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” is a true reflection of the events which seem to have caused the death of the Princess of Wales, it could be interpreted, contrary to its aims, as a justification for following or chasing a person if the only effect of this is to prevent them from living in peace, undisturbed by the invasion of a third party into their private lives.
Amendment no.10:
A further sub-paragraph (sub-para. vii) should be added to Article 14, worded as follows:
“The most serious violations of the rights guaranteed by Article 8 of the European Convention on Human Rights should attract criminal penalties, particularly when they make it impossible to exercise normally one’s right to lead a private life in peace and quiet, when they cause serious non-pecuniary damage, and, a fortiori, when they jeopardise the health or lives of individuals”.
To reflect the rapporteur’s concerns about certain excesses which can have tragic consequences, for example when pursuing a person leads to a fatal accident or the propagation of rumours leads to a suicide, as was the case in France in 1936 with the death of the minister Roger Salengro, the Committee proposes that, in addition to civil liability and economic sanctions, the most serious abuses should be liable to criminal penalties.
For instance, the revelation that a person in the public eye is suffering from a serious illness such as AIDS, when the person concerned did not wish to reveal this information, should not only raise the question of the civil liability of those who obtained the information unlawfully and propagated it, but also be liable to criminal penalties. What good would it do to proclaim human rights if violations of these rights only raised the question of civil liability? Clearly, the most serious violations should attract criminal penalties.
Amendment no.11:
Finally, we propose that paragraph 14 should also include a sub-paragraph viii., worded as follows:
"provision 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”.
Invasion of privacy involving the dissemination of information or photos can cause irreversible damage irrespective of any economic, civil or criminal sanctions to which it may give rise following judgement.
Therefore, provision should be made for a person being pursued by persons seeking information or images relating to his or her private life, to be able to apply to the courts for a suspension of publication or dissemination of images or other items obtained fraudulently, by any means, and in particular via the new communication and information technologies, so as to avoid, in so far as possible, the causing of irreparable harm.
It goes without saying that it is up to the courts to decide on the respective merits of the arguments of persons who demand that the information or images relating to their private lives should be prevented from being made public and the defence of those who possess these items.
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Subject to these observations, the Social, Health and Family Affairs Committee would like the text proposed by the Committee on Legal Affairs and Human Rights to be adopted, so that the Assembly can reiterate its commitment to an essential adjustment of the balance between the freedom of information and the respect for privacy for the benefit of all citizens, famous or otherwise.
This adjustment seems all the more necessary considering that this vital balance is now jeopardised by the constant advances in the new communication and information technologies. The absence or inadequacy of any changes to the system would amount to a negation of the right to privacy as recognised by the European Convention on Human Rights of 1950.
Reporting committee: Committee on Legal Affairs and Human Right (Doc. 8130)
Committee for opinion: Social, Health and Family Affairs Committee
Reference to committee: Doc. 7897, Reference No. 2224 of 26 September 1997
Opinion approved by the committee on 22 June 1998