“Freedom of Media and Data Protection” Workshop within Twinning Project “Implementation of Personal Data Protection Strategy” in Montenegro Hotel Podgorica, 28 th June 2012 © Prof. Hannes Tretter, University of Vienna Director Ludwig Boltzmann Institute of Human Rights (BIM)

  Relationship of freedom of media and right to data protection actually and controversially discussed   Beside “yellow press” modern societies have lively, open-minded debates on topics of public interest   Media and civil society are monitoring politics, criticising politicians, identifying corruption etc   Doing so, media and social media are informing the public also by disclosing personal data  new Law on Free Access to Information supporting that Introduction

Art 10 ECHR reads (similar Art 11 Charter):   “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers. …”   It may be restricted by law if it necessary in a democratic society, inter alia, - -in the interest of national security or public safety, - -for the prevention of disorder or crime, - -for the protection of health or morals, and - -of the reputation or rights of others. Freedom of expression and media

  Freedom of expression is an essential foundation of a living and pluralistic democratic society and one of the basic conditions for its progress (collective approach) and the development of every human being (individual approach).   Pluralism, tolerance, and broad-mindedness are typical features of every democratic society.   Media plays important role as “public watchdog” informing the public about topics of interest  this function justifies certain media “privileges”. ECtHR on freedom of expression I

  Freedom of expression is applicable not only to “information” and “ideas” that are favourably received, but also to those that offend, provoke, shock or disturb.   Protected is substance of ideas and information and form in which they are communicated.   “Value judgements” based on true facts and reasonable explanations are free.   But facts which are disseminated and imparted have to be true respectively have to be proved. ECtHR on freedom of expression II

  Freedom of expression may be restricted according to the conditions of Art 10 para 2 ECHR  principle of proportionality   Restrictions require a justified reason and a fair balance between the conflicting interests   Expressions which cannot be justified accordingly are “excessive expressions” and may be forbidden  threat of “killing people” by “naming and shaming”   The limits of acceptable criticism are wider with regard to politicians acting in their public capacity and private persons who are “public figures” Limits of freedom of expression

Right to data protection I Deduced from right to privacy, right to private life, right to individual self determination  by exploring the substance of these rights tackling contemporary threats and challenges Strong influence by case-law of the ECtHR Article 8 ECHR: right to private life includes right to data protection according to ECtHR case-law Article 8 EU Charter of Fundamental Rights: right to data protection explicitly guaranteed (picking up case-law of ECtHR regarding Art 8 ECHR)

Right to data protection II Art 8 ECHR reads: Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference 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 and public safety, 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.

Right to data protection III Protected are personal data with regard to, i.a., private sphere (not only in own four walls, also in public) personal identity (i.a. ‚race‘, ethnic origin, age, disability, health, DNA, finger prints) political opinion, religious or philosophical belief personal orientations/preferences (i.a. sexual orientation) communications (i.a., phone calls, mailing, meetings) personal daily life (i.a. bank account, shopping, estate) business/professional life, education public life (i.a. political engagement, trade-union member)

ECtHR on right to data protection Right on data protection is part of private life Right is affected if personal data are processed by collecting and recording, storing, transmission and dissemination, having an impact on private life. Right is also affected, i.a., in case of secret surveillance telephone tapping photo and video recording ECtHR in accordance with Directive 95/46/EC

Limits of right to data protection I Right to data protection may be restricted accor- ding Art 8 ECHR  principle of proportionality According to Art 7 Directive 95/46/EC personal data may only be processed, i.a., if the data subject has given consent, in the vital interests of the data subject, if processing is necessary for the performance of a contract or for compliance with a legal obligation, if processing is necessary in the public interest, or for purposes of legitimate interests of the controller except in case of overriding fundamental rights’ interests of the data subject Special rules for “sensitive data” (Art 8 Directive)

Limits of right to data protection II Special limitation according to Art 9 of the Directive 95/46/EC for journalistic purposes: Member States shall provide for exemptions or derogations from the provisions of Chapter II (General rules on the lawfulness of the processing of personal data) Chapter IV (Transfer of personal data to third countries) Chapter VI (Supervisory authority and working party) only if necessary to reconcile right to privacy with freedom of expression No exemption or derogation regarding: Chapter III (Judicial remedies, liability and sanctions)

Balancing the rights in question Both rights are essential civil liberties, similar guaranteed and restrictable (i.a. in the interests of others), and not inherently conflicting Due to the special status of freedom of expression and media within a democratic society, data protection law does not fully apply to the media Changing perspectives on role of data protection and on use of information technology by media Media is bound also by other rules (media, criminal, civil law, ethic and professional self regulation)  See Recommendation 1/97 of Working Group 29

MON Media Law and data protection I Law lacks clear, explicit obligations to which ex- tent media has to observe right to data protection Some Articles may be interpreted in the sense that the media has such a general obligation: Art 1 is guaranteeing freedom of information/media and states that the Law has to be interpreted in compliance with the ECHR (its Art 8 guarantees right to data protection) Art 4 permits the media to freely publicise information and opinions in compliance with the MON Constitution (which guarantees in Art 43 also the right to data protection) Art 20 prohibits violation of “legally protected interests of a person” and untrue statements on life, knowledge, abilities

MON Media Law and data protection II Law obliges media to observe other rights and interests of people, but not right to data protection: Honour and integrity of persons are be respected (Art 20) Prohibition of untrue statements about life, knowledge and abilities of individuals (Art 20) Protection of identity and integrity of children (Art 22) Prohibition to publish information and opinions that instigate discrimination, hatred or violence against persons or groups of persons because of their “race”, religion, nationality, ethnic origin and sex or sexual orientation Urgent need to complement the Media Law by protecting personal data taking into account the legitimate special needs of the media !

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