PSIR 425 Human Rights Balancing Rights the Issue

PSIR 425 Human Rights Balancing Rights – the Issue of Privacy

Defining Privacy • The state of being free from unwanted or undue intrusion or disturbance in one's private life or affairs; freedom to be let alone. • Freedom from damaging publicity, public scrutiny, secret surveillance, or unauthorized disclosure of one ’ s personal data or information, as by a government, corporation, or individual.

Questions • How do I set my privacy preferences on Facebook? • How Window’s 10 data collection trades our privacy for Microsoft’s security?

A Right to Privacy • Article 12. • No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. (Article 12 of the Universal Declaration of Human Rights and Article 17 of the UN Covenant on Civil and Political Rights)

European Convention for the Protection of Human Rights and Fundamental Freedoms • Article 8 – Right to respect for private and family life • Everyone has the right to respect for his private and family life, his home and his correspondence. • There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Privacy • It is hard to delimit the right to privacy. Privacy is a flexible notion and it can adapt to meet changing expectations and technological advances. • The right to privacy may extend only to the point where it does not restrict someone else’s right to freedom of expression or right to information. • Related notions: ‘defamation’, ‘trespass’, ‘copyright’.

The African Charter of Human and Peoples’ Rights • Article 9 1. Every individual shall have the right to receive information. • Article 14 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.

Privacy • The concept of privacy encompasses a claim that we should be unobserved and that certain information and images about us should not be circulated without our permission. • On the other hand, the concept of privacy has been used as a shield preventing intervention into, for instance, domestic violence or domestic and institutional discrimination (e. g. membership in clubs and associations.

Princess Caroline of Monaco wins privacy ruling 28 June 2004 • Princess Caroline of Monaco won a landmark ruling from the European Court of Human Rights on Thursday, which confirmed that the publishing of paparazzi photographs taken of the Princess in a public place was a violation of her right to privacy. • The ruling is expected to encourage courts throughout Europe to take a stronger line over the publishing of images of celebrities who do not have official functions or who do not seek public attention.

The Background • Princess Caroline von Hannover has been campaigning in various European countries for over 10 years, fighting against the publication of photographs about her private life. • The daughter of Prince Rainier of Monaco and film star Grace Kelly lives mostly in France, where her prior agreement is necessary for the publication of any photos not showing her at an official event. However there is nothing to stop photographs being taken and then published in another country, such as the UK or Germany, which rely on a "public interest" requirement to justify publication.

The Background • The Princess has on several occasions unsuccessfully applied to the German courts for an injunction preventing any further publication of a series of photographs that had appeared in the 1990 s in the German magazines. She claimed that they infringed her right to privacy and her right to control the use of her image. • The photos showed the Princess involved in such innocuous activities as skiing, shopping, leaving a restaurant or simply out walking.

The Background • In a landmark judgment in 1999 the German Federal Constitutional Court granted the Princess an injunction regarding some of the photographs - in which she appeared with her children - on the ground that their need for protection of their intimacy was greater than that of adults. • However, the Constitutional Court considered that the Princess, who is undeniably a contemporary "public figure", had to tolerate the publication of photographs of herself in a public place, even if they showed her in scenes from her daily life rather than engaged in her official duties. The Court explained that her right to privacy was overridden by the freedom of the press and the public's legitimate interest in knowing how such a person generally behaved in public.

The European Court of Human Rights • The Princess took her case to the European Court of Human Rights (ECHR) in Strasbourg, arguing that the decisions of the German courts infringed her right to privacy and her right to respect for her family life, both of which are protected under the Convention. • The Court ruled that there was no doubt that the publication by the German magazines of photographs of the Princess in her daily life, either on her own or with other people, fell within the scope of her private life. The Convention, it decided, was therefore applicable. • The real issue was how and where to balance the need for protection of the Princess's private life against freedom of expression, which is also guaranteed under the Convention.

The European Court of Human Rights • The Court ruled that although freedom of expression also extended to the publication of photographs, this was an area in which the protection of the rights and reputation of others took on particular importance, explaining: • "The present case does not concern the dissemination of 'ideas', but of images containing very personal or even intimate 'information' about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution. " • The Court considered that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photographs and articles made to a debate of general interest.