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Doc. 8147
22 June 1998
Right to privacy
Opinion1
Committee on Culture and Education
Rapporteur: Mr Paul Staes, Belgium, Group of the European People’s Party
I. Introduction
1. With reference to the report of the Committee on Legal Affairs and Human Rights, it is clear that certain people’s private lives have become a commodity, exploited in very many cases by unscrupulous media that invoke freedom of expression and public demand to justify invading the privacy of others.
2. Intrusions on privacy have become more frequent with the growing importance of the visual image, as conveyed by television and magazines — the dominant media in this sector of the market. In order to obtain new, exclusive pictures, journalists are often prepared to break the rules of acceptable conduct. On the other hand, as the rapporteur of the Committee on Legal Affairs and Human Rights has pointed out, certain public figures willingly supply details of their private lives to journalists in order to attract publicity and maintain their celebrity status.
3. The Parliamentary Assembly of the Council of Europe has already addressed these questions on numerous occasions. In 1970 it adopted Resolution 428 (1970), which contains a declaration on mass communication media and human rights, stipulating, inter alia, that the exercise of the right of freedom of information and freedom of expression must not be allowed to destroy the existence of the right to privacy. The resolution also states: "The fact that an individual figures in the news does not deprive him of a right to a private life." Resolution 1003 (1993) on the ethics of journalism contains a similar declaration.
4. The task, therefore, will be to strike a balance between two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to privacy, as laid down in Article 8, and the right to freedom of expression, under Article 10.
5. We should also find effective ways of making journalists and media users more aware of the right to privacy. In this context, education about human rights and responsibilities, as well as professional training for journalists and a system of press self-regulation, can play an important role.
II. Is a new convention required?
6. The Committee on Culture and Education fully agrees with the Committee on Legal Affairs and Human Rights that it is not necessary to propose the adoption of a new convention in order to ensure observance of the right to privacy.
7. This right is sufficiently protected by the European Convention on Human Rights and by existing national legislation in many member states — a fact that has not prevented certain media from committing invasions of privacy. Consequently, drafting a new convention would not entail any improvement in the existing situation. What is important is to find ways of making the existing protection more effective.
III. The importance of financial compensation sufficient to serve as a deterrent
8. One of the best ways of deterring the media from invasions of privacy will be for national law to prescribe appropriate sanctions with a sufficiently dissuasive effect.
9. Given that photographs and details of public figures’ private lives have become highly profitable merchandise, editors are prepared to publish them and risk being fined, because the profits to be made are well in excess of the level of penalties.
10. In France, the maximum fine for invasion of privacy is 200 000 French francs. Given that certain photographs and stories sell for millions of dollars, fines at such a level will never deter anyone. Penalties ought, therefore, to reflect the realities of the market.
11. Measures should also be taken to facilitate access to the courts and simplify the legal procedures relating to press offences, in order to ensure that people whose privacy has been invaded are not, in practice, impeded from lodging a complaint and thus secure better protection of their rights. The current procedures in a number of countries, including my own, are too complicated.
IV. No censorship
12. The Committee on Culture and Education opposes the requirement framed in the draft resolution that "express, unambiguous permission" should be required before the publication of photographs or text that are entirely unrelated to a person’s public role. The committee emphasises that this would constitute unacceptable censorship and would be at odds with the Council of Europe’s principles and values because it would pose a serious threat to freedom of expression as one of the bases of democratic society. It should be added, however, that in the case of interviews, the right of the interviewee to see the text before publication should be respected. Although this will never be a means of heading off all possible threats to privacy, the further step of requiring explicit authorisation for publication should be rejected.
13. Insistence that the media obtain authorisation before publishing photographs or text has traditionally been a hallmark of authoritarian regimes under which press freedom did not exist. To stipulate in the guidelines that such authorisation is necessary would open the way to repression of the freedom of information.
14. The questions to be asked in this context are: who would decide in advance whether photographs or text relate to a person’s public role and what exactly does that public role include? Given that no precise definition of "public life" exists and that it virtually defies definition, the implementation of such a guideline would pose certain highly sensitive problems and could easily be distorted and abused be authoritarian states as a means of discriminating against a critical press. And, as the report points out, it may be entirely 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.
15. The call for prior authorisation would render impossible the work of an investigative press — which is a significant force for democracy. This type of censorship should therefore be avoided because the press should not be subject to any form of censorship, direct or indirect.
V. Raising the awareness of media users
16. Bearing in mind that there is a demand on the part of many readers and the public in general for sensational news and details about the private lives of public figures, and that a type of voyeurism exists, to which journalists respond, it is clear that a vicious circle of supply and demand is operating and that it must be broken.
17. Drafting legal texts or guidelines would not, in many cases, be the most effective approach. Education should be seen as a useful tool for raising readers’ awareness about what other people’s right to privacy entails.
18. As the Parliamentary Assembly pointed out in its Recommendation 1215 (1993) on the ethics of journalism, measures should be taken to foster the setting up of citizens’ media associations and encourage schools to provide media education. In Recommendation 1276 (1995) on the power of the visual image, the Assembly highlights the need to teach children how to read, assess and interpret the messages conveyed by the media.
19. It is essential, therefore, to foster the development of media education on a wider scale, as part of education about human rights and responsibilities, particularly in terms of teaching individuals how to acquire a critical approach to media content and journalistic credibility. Measures to raise media users’ awareness in this respect can contribute significantly to breaking the vicious circle referred to above, because if demand is reined in, supply will automatically decline.
VI. The need for press self-regulation and improved training for journalists
20. Journalists’ professional training ought to include a course in law, highlighting the importance of the right to privacy in a democratic society and reminding journalists that the exercise of their profession entails rights and duties, freedoms and responsibilities vis-à-vis society as a whole.
21. Pursuant to Recommendation 1215 (1993) on the ethics of journalism and with reference to Resolution No. 2 of the 4th European Ministerial Conference on Mass Media Policy, the media should be encouraged to exercise self-discipline by drawing up standards for self-regulation and journalistic codes of conduct. Journalists’ organisations should set up monitoring bodies that will be prepared to apply effective sanctions when codes of conduct are breached. However, we ought to avoid imposing codes of conduct on the media, in order not to interfere with the freedom of the press.
22. Respect for the privacy of others ought to be an important element in a journalistic code of conduct. Human dignity should be the touchstone in deciding whether a particular piece of information is in the public interest.
23. In many European countries, anyone may set himself or herself up as a journalist, with the result that there are many representatives of this important profession who do it no credit. One effect of increasing inter-media competition is the fact that some press groups are prepared to employ very young “journalists” who have no training or proper professional qualifications. Thus, there would also seem to be a need for the professional bodies representing journalists to lay down conditions for entry to the profession. For the reasons referred to above, the imposition of such conditions by governments ought to be avoided. The fact that people would have to meet certain conditions in order to work as journalists would not preclude representatives of other professions — or experts in a given field, politicians or members of the public — from expressing their ideas and opinions through the media, always provided that their name and function was clearly stated.
24. It should be noted that a seminar on media self-regulation, organised by the Directorate of Human Rights, is to be held in Strasbourg in early October 1998.
VII. Conclusions and amendments
25. There is a general consensus that the right to privacy ought to be better protected. While it is possible to protect public figures — and indeed ordinary citizens — from illicit invasions of their privacy by means of national and international legislation, we must also consider the various reasons why such invasions occur. In this context, the work of fostering a generally increased awareness of people’s rights and responsibilities, by means of education about human rights and duties, can make a decisive contribution.
26. Bearing in mind how important it is that a free press should exist, our first concern must be to avoid any form of censorship, direct or indirect.
27. The Committee on Culture and Education supports the report by the Committee on Legal Affairs and Human Rights but wishes to propose the following amendments:
Amendment No. 1
Add the following after the last sentence of paragraph 6: "At the same time, public figures must recognise that the position they occupy in society — in many cases by choice — automatically entails increased pressure on their privacy."
Amendment No. 2
Delete sub-paragraph 14.i.a.
The reason for this amendment is set out in IV above.
Amendment No. 3
In sub-paragraph 14.i.c, add the words "and journalists" after the word "editors".
Reason for the amendment:
Journalists must also take responsibility for everything that they publish. They must realise that journalism also entails responsibilities towards other people.
Amendment No. 4
Delete sub-paragraph 14.i.d.
Reason for the amendment:
The implementation of such a guideline would be very difficult and it could easily be distorted and abused by authoritarian states as a means of discriminating against a critical press. It is enough to provide that financial compensation for an invasion of privacy should be sufficient to act as a deterrent.
Amendment No. 5
Add the following sub-paragraph to paragraph 14:
"when editors have published information that proves to be false, they should be required to publish effective corrections at the request of those concerned".
Reason for the amendment:
A symbolic gesture of reparation of this sort, at the request of those concerned, would also help to improve the protection of victim’s rights. It should be emphasised that, in all circumstances, the "right of reply" for persons referred to in press articles should be guaranteed.
Amendment No. 6
Add the following after paragraph 15:
"16. The Assembly also calls upon the governments of the member states to:
i. encourage the professional bodies that represent journalists to draw up certain criteria for entry to the profession, as well as standards for self-regulation and a code of journalistic conduct;
ii. promote the inclusion in journalism training programmes of a course in law, highlighting the importance of the right to privacy vis-à-vis society as a whole.
iii. foster the development of media education on a wider scale, as part of education about human rights and responsibilities, in order to raise media users’ awareness of what the right to privacy necessarily entails;
iv. facilitate access to the courts and simplify the legal procedures relating to press offences, in order to ensure that victims’ rights are better protected."
The reasons for this amendment are set out in III, V and VI above.
Reporting committee: Committee on Legal Affairs and Human Rights (Doc. 8130)
Committee for opinion: Committee on Culture and Education
Reference to committee: Doc. 7897 and Reference No. 2200 of 22 September 1997
Opinion approved by the committee on 3 June 1998
Secretaries to the committee: Mr Ary, Mrs Theophilova-Permaul, Ms Kostenko