Which prevails? Freedom of expression or the right to private life?

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For the greater good of freedom of expression and the free flow of information, practically none of the GDPR requirements apply to the world of journalism and mass media. When individuals object to publications detailing private information about them, they can appeal to the right to private life as defined in the ECHR. But when it comes to online publications, which prevails? The freedom of expression or the right to private life? That is the subject of this week’s blog.

For most organisations, the GDPR specifies strict rules for the processing of personal data, while also demanding that specific rights of the data subjects be properly maintained. These requirements, however, do not equally apply when it comes to journalism and the world of mass media.

Article 85 of the GDPR requires member states to reconcile, by national law, the right to protection of personal data with the freedom of expression and information. In this article, the GDPR explicitly refers to personal data processing in relation to academic, artistic or literary expression and for journalistic purposes. What this means then, is that the basic principles for processing of personal data, as listed in Article 5 of the GDPR, do not apply to journalistic expressions, the same being true for the entirety of Chapter 3 of the GDPR – which is dedicated to the rights of data subjects.

The idea behind this distinction is that freedom of expression and the right to information are among the key foundations of a democratic society. Journalists play an essential role in this dynamic and for that reason, their professional activities may not be subject to any restrictions.

The fact that for a large extent the GDPR, as a result, does not apply to journalism, however, does not mean a total overriding of the right to privacy leaving journalists free to write whatever they want about whoever they choose to write about. The right to private life, as detailed in Article 8 of the European Convention on Human Rights still continues to apply, as does Article 7 of the Charter of Fundamental Rights of the European Union. Whenever individuals – usually celebrities in this context – are unhappy about what is being published about them, for reasons of reputational damage for instance, they can appeal to the right to protection of honour and reputation, which is a derivative of the right to private life.

Essentially, these cases are all about the balancing of interests, with the right to privacy of the data subject in one of the scales and the journalist’s freedom of expression in the other. In this week’s blog we will first examine a number of issues relevant to this balancing of interests before going on to discuss an actual lawsuit by way of illustration.

Balancing of interests

The European Court of Human Rights (ECHR), in the case of Caroline von Hannover 1 & 2, drew up a list of criteria relevant to the balancing of interests, first and foremost among them the publication’s contribution, or lack thereof, to the public debate. Gossip and speculation about a person’s private life are more likely to constitute an infringement of the right to privacy than adding anything to the provision of information.

The next consideration is the extent of notoriety the person being written about actually possesses, first rule of thumb being that the level of privacy public figures have is inversely proportional to the extent of their celebrity. Another factor to be taken into consideration is the person’s history of behaviour. Is this a person known to actively seek publicity or are we dealing with a person who tends to be more protective about his or her private life?

The final consideration should be whether or not the publication may have negative effects for the person being written about.

Online publication

In 2016, Dutch journalist Peter Olsthoorn published a ‘web book’ on telecommunications company Pretium and its CEO, both of whom, up to that point, had repeatedly made dubious headlines. Reason enough for Olsthoorn to investigate – and in his online report expose – Pretium’s in his view questionable operational standards.

Pretium’s CEO, objecting to Olsthoorn’s story, claimed that the publication lacked any factual grounds and was therefore improper. As a next step, he took his case to court, arguing that the way his company was represented in the web book reflected negatively upon himself and caused damage to his reputation. Apart from this, the book also touched on the CEO’s private life, in segments discussing his wife and his sons. In conclusion, the CEO demanded that the entire book be taken offline.

In the end, the court dismissed the claimant’s request, basing its verdict on a number of key facts. First of all, the web book, being the result of extensive source verification, was judged not to contain any inaccuracies. Further, the court ruled against the claim of impropriety in relation to details in the publication on the CEO’s wife and sons, because the web book merely quotes from stories they themselves had previously published online, making the information freely and publicly available. In this case then, the journalist’s freedom of expression was found to outweigh the CEO’s right to private life.

What makes this case particularly interesting is that the court also discusses the hypothetical situation in which publication of the information on the CEO’s family would qualify as improper. Even then, the court states, freedom of expression would be the overriding interest and the verdict of there being no reason for the publication to be taken offline, would remain unchanged, specifically because the – in that case existing – impropriety only applies to small parts of the entire text, thus making removal of the entire book disproportionate. Seeing as how the publication is in the form of a web book, it is perfectly possible to undo the – in that case applicable – infringement of the right to privacy by removing only the offending segments.

What this case also illustrates is that where information has been made publicly available by the very persons concerned themselves, by publishing stories on Facebook for instance, subsequent appeals to the right to privacy are unlikely to carry much weight.

One final interesting aspect of this case is that in essence it revolved around a web book, thus showing that finding a reasonable balance between, in this case, freedom of expression and the right to privacy, is not always equally easy or complicated. Here, because we are talking about an online publication, reconciliation, if necessary, is relatively straightforward. If the object of contention had been a physical book and the court had agreed to the impropriety of certain segments, the whole book in its entire edition would probably have to be withdrawn and taken out of stores. Virtual books, being more flexible by definition, also allow for more granular solutions in the balancing of interests. Also when, unlike in this case, the right to privacy outweighs the importance of freedom of expression.

Darinka Zarić

Darinka Zarić

Darinka Zarić is a legal counsel at The Privacy Factory. Legal issues regarding the digital society appeal to her. Especially in the field of Privacy Law and the use of big data. She is currently following the master Internet, Intellectual Property and IT-Law at the Vrije Universiteit Amsterdam.

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