Opinion: “Private Lives – Part 1” Amber Melville-Brown

29 05 2010

As Max Mosley marches to Strasbourg to ask Europe’s human rights court to force the media to give individuals advance warning of salacious stories, Amber Melville-Brown rounds up the current privacy state of play across the continent

‘You have been found guilty of invasion of privacy. Bailiffs, take them down.’ An unlikely utterance from a judge – save in those countries where the authorities flinch at the concept of freedom of speech – but a recent Italian case has surprisingly resulted in prison sentences for three defendants over their involvement in privacy invasions. The right to respect for one’s private and family life is guaranteed by Article 8 of the European Convention on Human Rights. Since drafted, it has been forced into a loveless marriage with Article 10, which respects the right to free speech, and the two have been incongruous bedfellows ever since.

Which Article comes out on top is decided by the domestic courts. Each contracting state must ensure its laws are convention-compliant, although it is up to each to work out how to reach the standards that Strasbourg requires.

Pop stars and politicians

The need to protect our privacy increases as the public’s appetite for stories about the private lives of pop stars and politicians grows at a similar pace as do the intrusive ways of obtaining information and data – and the myriad platforms for publishing that information. While each of the EU states is left to its own devices in ensuring that a proper decorum is maintained between Articles 8 and 10, should a state fail to reach an appropriate balance it can be brought before the European Court of Human Rights (ECtHR) for a spot of marriage guidance.

Back to the Italian case. In February this year, three US based Google executives were convicted of violating the privacy of a disabled boy. The ruling resulted from the posting in 2006 of a video on the now defunct Google Video showing the boy being bullied, and the verdict was handed down despite the material being removed a matter of hours after Google was notified. Eagerly awaiting the formal decision and the judge’s reasoning is Iacopo Destri, a media law associate at the Milan office of US global law firm Dewey & LeBoeuf. ‘The judge considered the managers guilty of privacy violation because Google, allegedly, did not have a preliminary privacy check in place,’ he comments. But according to Matt Sucherman, Google’s deputy general counsel for Europe, the Middle East and Africa, writing on the company’s official blog:

‘Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming. European Union law was drafted specifically to give hosting providers a safe harbour from liability, so long as they remove illegal content once they are notified of its existence.’

‘Deeply troubled’

Thanks to an Italian rule that requires all sentences of fewer than three years to be suspended, the three Google executives have not found themselves behind bars. However, Mr Sucherman says Google ‘will vigorously appeal this decision’. While condemning the activity shown on the video as ‘reprehensible’, he says Google is ‘deeply troubled’ by the conviction, which ‘attacks the very principles of freedom on which the internet is built’. The lawyer further comments that should decisions of this nature stand, ‘then the web as we know it will cease to exist and many of the economic, social, political and technological benefits it brings could disappear’. This case evidences a marked difference as to sanctions for privacy invasion. In the UK judgment in Campbell v MGN – the seminal case that effectively launched privacy actions in the UK – the publishers at Mirror Group Newspapers may ultimately have gone down in the House of Lords on a 3:2 majority, but there was no question that they could possibly ‘go down’ in the criminal sense. Indeed, the damages awarded against them were a paltry £3,500.

Britain is not isolated when it comes to protecting privacy solely by civil means, but European countries other than Italy also protect the right through the criminal courts. The advice the Bloomberg news agency provides in its handbook in relation to Spain comes from Almudena Aropon De Mendivil of Madrid-based law firm Gómez-Acebo & Pombo. In it, he maintains that privacy rights are recognised and protected both by Law 1/1982 and by the Spanish criminal code. Comments Mr Aropon De Mendivil: ‘The right of privacy [as well as the right of honour] is based on the Spanish Constitution, which considers this right fundamental and, therefore subject to the highest legal and judicial protection.’

And according to Jens P Van Den Brink, a media law associate at Netherlands firm Kennedy Van de Laan, in Holland the right has been recognised both in civil and criminal law and ‘indirectly laid down in the so-called portrait right clauses of the Dutch Copyright Act. ‘If a portrait has not been made at the request of the person portrayed,’ he advises, ‘that person may prevent the publication of the portraits if he has a reasonable interest that opposes such publication. This reasonable interest is usually privacy related’.

Big brother fears

Not all objections to privacy invasion are on the grounds of an unauthorised publication of images. Fears over a ‘big brother’ state abound in the UK regarding the curtailment of privacy through proposed implementation of identity cards, the erection of CCTV cameras and the retention of DNA. But it is the taking and publishing of photographs that often causes sufficient distress to lead the complaint to exhaust domestic measures and progress to the ECtHR, from where the decisions have the potential to ripple significantly across the whole of Europe.

As Google found to the cost of its officers, the planet is now a much smaller place thanks to the worldwide web and publishers need to take note of the various privacy rules across Europe. With the convention at the heart of European privacy law and the decisions that emanate from Strasbourg, there is some guidance to be found.

The case that hangs over Europe involves Princess Caroline Von Hannover of Monaco. She brought her complaint to the European courts in 2005 after what she painted as a picture of constant harassment and privacy invasion by the paparazzi. The Strasbourg court’s decision caused a stir when it held that Princess Caroline was entitled to respect for her private life – which included when she was out shopping, horse riding, with friends – whenever she was not fulfilling her public role, as anything else that she did was, by definition, private. Unless the publication of images of the princess engaged in her private life contributed to a debate of general interest, they were out of bounds. The court held: ‘There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life.’ The threshold test in the UK, deriving from Campbell, is whether the subject has a ‘reasonable expectation of privacy’ with regard to the information that is being disclosed. Once that has been met and the claimant has established that an article 8 right is engaged. But that expectation of privacy may nonetheless be overridden when a test of proportionality is applied to the various rights at play – in media cases, the competing case usually involves article 10 – and a public interest, not dissimilar from the debate of general interest from Von Hannover, may win the day.

Amber Melville-Brown is a media law specialist counsel at London based law firm Withers

This piece first appeared in Issue 95 of the European Lawyer, April 2010 and is reproduced with permission and thanks.


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