Publication of personal data, i.e. information pertaining to specific natural persons within the meaning of Article 4 (a) of Act No. 101/2000 Coll., on the protection of personal data and on amendment to some acts, as amended, in periodical press, as well as in other media, is undoubtedly one of those problematic areas that involve a conflict of absolutely varying interests and expectations - the justified requirement of the affected persons for the protection of privacy, on the one hand, and the no less important freedom of dissemination of information, on the other hand. Indeed, this conflict is becoming ever more marked with the increasing volume of information disseminated not only through classical periodicals, but also, e.g., on the Internet, and is affecting not only media-exposed celebrities and politicians but in growing number other persons too.
The necessity of dealing with this fact also at the level of legal regulations is documented, e.g., by the rules stipulated by Act No. 159/2006 Coll., on conflicts of interests, for the publication of information maintained in the registers of notifications, or by the recent amendment to the Code of Criminal Procedure (Act No. 52/2009 Coll.), which, amongst other things, fosters the protection of witnesses and other persons involved in criminal proceedings.
The Personal Data Protection Act, too, aims pursuant to its Article 1 particularly to protect individuals against unauthorised interference with their privacy through processing of personal data. The Office for Personal Data Protection (hereinafter the “Office”) therefore considers it necessary to express, in this Position, its opinion on the subject of publication of personal data in the media.
First, it is appropriate to summarise the legal regulations that form the basis for assessment of personal data processing in the media. Mainstay must be sought both in international and Czech constitutional rules, which are further supplemented by individual instruments of private and public law embodied in individual acts.
It can be inferred from this listing that both the supranational rules and the Czech constitutional regulations assign the same weight to the right to information, and thus freedom of expression, on the one hand, and to the right to protection of personal rights and privacy, including the right to protection of personal data, on the other hand. At the same time, these documents stipulate the conditions under which these rights may be restricted - in general terms, this is possible only in view of important interests of democratic society (e.g. order and security; prevention of crime; protection of health or important economic interests; and protection of rights and freedoms of others).
Furthermore, it can be stated that the Directive acknowledges the specific characteristics of journalism in relation to processing of personal data, but in no case does permit full exemption of this area from its scope, and thus also from the national legal regulations providing for the protection of personal data. According to the Directive, it is necessary to consistently reconcile the right to disseminate information with the right to protection of personal data by means of enacting the necessary exemptions and derogations; however, it leaves the specific forms and their limits to the individual countries.
Basis for application of the Personal Data Protection Act
Practical application of the above-listed regulations is in no way straightforward in the Czech Republic. Complications are related particularly to the fact that the Czech legislator did not comply with the instruction set out in the cited Art. 9 and Recital 37 of the Directive and failed to adopt any special regulation of personal data processing in the area of journalism.
The aforementioned fact could justify the conclusion that the Personal Data Protection Act will thus apply, in the area of journalism, in the same way as to any other case of processing of personal data, thus requiring fulfilment (and penalising non-fulfilment) of all the duties set out in the Act. However, this approach comes up against the principles of interpretation of constitutional rules, as defined by the Constitutional Court, according to which none of the fundamental rights may be assigned greater importance. The Constitutional Court specifically ruled that the fundamental right pursuant to Art. 17 of the Charter must be principally equivalent to the fundamental right stipulated in Art. 10 of this document.4 Another limit for application of the Personal Data Protection Act to journalists’ activities lies in the aforementioned provisions of the Directive, as pursuant to the ruling of the European Court of Justice national laws implementing Community rules must be interpreted in a “Euro-conforming” manner (i.e. in the spirit and sense of the European legislation).
In view of the opinions of these authorities, when examining personal data processing in the media, the Office has always been guided by the principle that such interpretation of the Personal Data Protection Act is correct and justifiable that strikes balance between the constitutional and European principles. Therefore, in the area of journalism, the Office exercises its competences only as a last resortwhen application of public-law measures is well-founded (in the sense of the principle of ultima ratio of criminal repression required by the Constitutional Court5). When employing this approach, the Office also relies on the previously mentioned fact that the Directive provides for certain possible derogations in the area of journalism, but not for full exemption from the scope of the Personal Data Protection Act. Moreover, the Office´s approach is grounded in the opinion of the Constitutional Court on the aspect of freedom of expression, according to which the “right to information, as well as the right to freely communicate this information, is an unambiguous combination of the right and also the duty (or responsibility) of the press to provide truthful, balanced and honest information on topics of important public interest”.6
Approach of the Office to examination of publication of personal data in the media
When applying the Personal Data Protection Act on the area of journalism, distinction should be drawn between two cases, namely the preparation of reports or articles and the subsequent publication thereof.
In respect of the former case, it may be concluded that the activities of individual journalists (natural persons) in gathering underlying information – including personal data – for the purposes of preparation of an article or report are not at variance with the Personal Data Protection Act in the sense of Art. 9 of the Directive. This conclusion follows from the logic that personal data are gathered and utilised within this activity in conformity with the right to freely seek information pursuant to Art. 17 (4) of the Charter, where the risk of unauthorised interference with privacy of the affected persons (in the sense of Article 1 of the Personal Data Protection Act) in this stage is minimal.
From the viewpoint of application of the requirements set by the Personal Data Protection Act, it is fundamental to examine when the text or report was published, or the gathered data were in other way used, as it is at this moment when privacy and personal lives of the affected persons are being – often irreversibly – interfered with.
While the phase of seeking information and preparing the material could be deemed to be an activity protected by Art. 17 (4) of the Charter, which in no way substantially infringes on other fundamental rights, the considerations in a situation where personal data have already been published must be just the opposite. At this stage, the two above-described fundamental rights (the right to freedom of expression and to disseminate information and the right to protection of privacy), which have the same weight and must be preserved as far as possible (i.e. the widest possible exercise of the two rights must be maintained), already undoubtedly collide and it is thus appropriate to apply the relevant requirements of the Personal Data Protection Act.
The responsibility for processing personal data in published articles and papers thus lies primarily with the publisher or operator of the given media through which the information is disseminated. In this respect, it must be stated that it is irrelevant from the viewpoint of the Personal Data Protection Act whether the publisher or operator is a natural or legal person, since the mentioned Act imposes duties on controllers and processors of personal data and these may be both natural and legal persons.
Furthermore, it is necessary to resolve the issue as to under what circumstances it is justifiable to conclude that the publication of certain personal data corresponds to the merits of an administrative offence or misdemeanour pursuant to the Personal Data Protection Act. Again, this consideration needs to follow from the sense of this Act, i.e. whether the given case involves unauthorised interference with privacy of the given person or whether it is appropriate to evaluate the interference as not being unjustified in view of protection of freedom of expression and the role of the media in society.7 This question can be answered after examination of the circumstances of the given case, which must include particularly assessment of the following aspects:
Status of the person to whom the published data pertain. Information concerning privacy of, for instance, politicians or celebrities must no doubt be distinguished from information concerning privacy of “normal” persons8 (cf. Article 5 (2) (f) of the Personal Data Protection Act). Furthermore, stricter approach must be employed in respect of publication of personal data concerning children and youth, as well as those persons who are unable to protect themselves for any reason.
Character of published information. In Article 4 (b), the Personal Data Protection Act defines sensitive data as a subcategory of personal data the misuse of which can result in substantial infringement on the rights of individuals (such as data on the state of health, ethnic origin, religious belief, sexual life, or genetic data) and which are afforded increased protection by the Act. Publication of data falling in this category must be assessed more strictly, also in relation to celebrities. The opposite is true of information whose publication has been approved by the given person or that can be described as justifiably published (i.e. not at variance with the applicable laws governing the area in question). These data may be further employed provided that this not at variance with the right of data subjects to the protection of their private lives (cf. the introductory part of Article 5 (2) and Article 5 (2) (d) of the Personal Data Protection Act).
Sense and objective of publication of personal data. In general, the Office is of the opinion that, in the application of the Personal Data Protection Act in the area of journalism, the relevant criteria for assessment must also include the question as to whether publication of certain information is to serve exclusively to increase the “attractiveness” of the report, or whether the processing (publication) of personal data in the given case actually serves a genuine public interest. In the opinion of the Office, public interest justifying publication of personal data can be perceived particularly in those cases where this information relates to public activities of the given person, or where these data are to attest to unlawful or otherwise unethical conduct.
Of course, the above list is not exhaustive; the Office examines each case individually, with respect to all the relevant circumstances (e.g. character of the media, i.e. whether publication of the data has local or nationwide impact; whether data can be subsequently traced, etc.).
Application of the Personal Data Protection Act in the area of journalism is complicated (the Act contains a number of provisions, e.g. Article 11 or 16, that in no way limit freedom of speech, but are nevertheless difficult to implement in this area) and often on the boundary of the Office’s competence, or on the border of the scope of the Personal Data Protection Act. Nonetheless, the Office is of the opinion that application of the principles of personal data protection is absolutely relevant also in this area, since it substantially supplements the instruments of civil, media and criminal law. Given the above-described basis and reasons, the Office approaches this subject with maximum attention and, in its practice, takes into consideration all the relevant aspects of the work carried out by journalists as well as the function of the media.
This Position does not aim to approach in detail all the questions related to processing (particularly publishing) of personal data in journalism. Every means of communication has its own specificities, whose assessment would go beyond the scope of this text. Moreover, as indicated in the introduction, there are areas which are regulated by special laws and where the Personal Data Protection Act applies only subsidiarily. Analogously, it is not possible to apply the above-described opinions automatically to specific information channels, such as discussion forums, thematic websites and blogs.
This Position aims particularly to indicate the Office´s positions on the subject at hand and to initiate a potential debate on the need for a special legal regulation in the sense of Art. 9 of the Directive.
1 The European Court of Human Rights, which was established by the mentioned Convention, also infers the right to protection of personal data from Art. 8 of the Convention.
2 More accurately, Resolution of the Presidium of the Czech National Council No. 2/1993 Coll., promulgating the CHARTER OF FUNDAMENTAL RIGHTS AND FREEDOMS as part of the constitutional order of the Czech Republic.
3 E.g. Act No. 46/2000 Coll., on the rights and duties in the publication of periodical press and on amendment to some other laws (the Press Act), Act No. 231/2001 Coll., on radio and television broadcasting and on amendment to some laws, and Act No. 483/1991 Coll., on Czech Television – however, these legal regulations do not provide comprehensive regulation of personal data processing in the given areas.
4 Awards of the Constitutional Court file No. II. ÚS 357/96 and IV. ÚS 154/97.
5 Award of the Constitutional Court file No. I. ÚS 4/04.
6 Resolution of the Constitutional Court file No. II ÚS 435/01.
7 In respect of the role of a “watchdog” for society, cf. Resolution of the Constitutional Court file No. II. ÚS 435/01, Award of the same court file No. I. ÚS 394/04, and also judgments of the European Court of Human Rights in Goodwin v. The United Kingdom of 1996 and Bladet Tromse and Stensaas v. Norway of 1999.
8 Cf. Awards of the Constitutional Court file No. IV. ÚS 146/04, file No. I. ÚS 453/03 and file No. I. ÚS 367/03, or the judgment of the European Court of Human Rights in Castells v. Spain of 1992. Nevertheless, even information on the private life of publicly known persons has its limits – cf. the judgment of the European Court of Human Rights in von Hannover v. Germany of 2004.
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