Data Protection and Privacy: European and US Perspectives — Balancing the rights of privacy and the freedom of expression (Part VI)

Identifying the scope of privacy in reference to the grounds on which it can be restricted.

Freedom of Expression

In establishing the grounds for which privacy can be restricted by references to the freedom of expression provision, the court must ascertain a balance between the right of privacy against that of free speech. Such balance may be considered in terms of the public’s general interest or entitlements to information. In Ireland, freedom of speech is provided for under Article 40.6.1 of the Constitution, acknowledging the right of citizens to ‘express freely their convictions and opinions.’ [69] This right is restricted to speech that would not be of ‘blasphemous, seditious, or indecent matter’ or ‘undermine public order or morality or the authority of the State’. [70]

In Krone Verlag GMBH v. Austria, the court considered the privacy entitlements of the applicant, who sought against a series of thirteen articles revealing particularly intimate emotional and medical details, aided by several photographs taken of him. The court recognised that the repetition of such publishing was ‘capable of creating a climate of continual harassment, inducing in the person concerned, a very strong sense of intrusion into their private life or even of persecution.’ [71] This case therefore outlining a violation of the provision of free speech in relation to responsible journalism.

Comparatively, in Plon (Société) v. France, the element of extended time was acknowledged by the court as a provision for enhancing public interest in certain subject matter. [72] In the Plon (Société) case, a publication concerning President Mitterand’s medical state was published by his former private doctor. The court recognised the detriment of published material in disregarding the President’s rights to confidentiality, citing, ‘the more time passed the more the public interest in President Mitterand’s two seven year presidential terms prevailed, over the requirements of the protection of his rights with regard to medical confidentiality.’ [73]

The issue of what may be upheld as general ‘public interest’ was considered in Jaime Campmany y Diez de Revenga and Juan Luís Lopez-Galiacho Perona v. Spain. [74] In Jaime Campmany, the court deliberated that ‘the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, cannot be deemed to contribute to any debate of general interest’. [75] In this regard, it would seem that provisions held for the freedom of expression may be in need of a narrower interpretation.

In Société Prisma Presse v. France, the court took into account the Parliamentary Assembly of the Council of Europe’s guidelines for resolution by way of a press release as a ‘mode of compensation’ in ‘avoid[ing] as much as possible, that certain facts relating to the purely private sphere of public persons from becoming ‘a highly lucrative commodity for certain media,’ without considering that it constitutes a disproportionate restriction on the exercise of freedom of expression.’ [76]

In Von Hannover v. Germany, the court pronounced the limitations of Art 8 with regard to citizen protection against ‘arbitrary interference by public authorities’. [77] The court stated that Art 8 ‘does not merely compel the State to abstain from such interference’, but may inhibit positive obligations allowing for the ‘adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves’.[78] In Axel Springer v Germany, [79] both parties acknowledged the interference with the applicant’s right under Art 10 to freedom of expression, however offered conflicting reasons as to whether such interference was ‘necessary in a democratic society’. [80]

The court emphasised ‘the essential role played by the press in a democratic society,’ recognising that ‘[a]lthough the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart — in a manner consistent with its obligations and responsibilities — information and ideas on all matters of public interest.’ [81] The court continued to note the potential restrictions on privacy with regard to freedom of expression commenting that ‘[n]ot only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’. [82]

69 Art 40.6.1. Constitution of Ireland

70 Id.

71 Application no. 27306/07, 19 June 2012. at 59.

72 Application no. 58148/00, 18 May 2004

73 Id. at 23

74 no. 54224/00, 12 December 2000

75 Id. at 65

76 nos. 66910/01 and 71612/01, 1 July 2003

77 (2005) 40 E.H.R.R. 1.

78 Id.

79 App No 39954/08 (2012) 55 EHRR

80 Article 10(2) ECHR: ‘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.’

81 Axel Springer at 79

82 Id.