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Mauro Paissan - Privacy Protection and Right to Know. Striking a Difficult Balance - Spring Conference of European Data Protection Commissioners -...

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Conferenza di primavera - Larnaka (Cipro)  10-11 maggio 2007

Spring Conference of European Data Protection Commissioners
Larnaka, (Cipro) 10-11 maggio 2007 

 Versione in italiano

Privacy Protection and Right to Know. Striking a Difficult Balance
Mauro Paissan

That the protection of privacy and the right to know are at variance is no news. This was noted ever since the 1995 directive on data protection was adopted, indeed even before that – when a document was released by the Council of Europe on this issue in 1991.

Right to privacy and freedom of the press are both protected by the European Human Rights Convention and the Treaty Establishing a Constitution for Europe. In fact, the two rights are continuously in a state of tension – at times openly in conflict.

The right to know, freedom of expression, transparency are all basic features of a democratic society; however, they may not override the demand for privacy, the right to freely develop one´s own personality, to build one´s private sphere – to get respect for one´s dignity. It is often the case that very private features of a person´s life do not add anything at all to the appreciation of a piece of information – indeed, they are only food for voyeurs.

The two rights at issue should be reconciled by the unrelenting search for a balance, often all but easy to strike.


The Italian Case
Whilst the majority of European countries have not empowered data protection authorities to take in-depth action with regard to the press under the respective data protection laws, the situation is different in Italy. Indeed, Italy stands out among her European partners from this viewpoint. In our country, data protection principles apply – in general – also to journalistic activities; Parliament has empowered the Garante to play a key role in this difficult area for data protection. Exercising the powers in question requires a balanced approach, a sense of measure, full-fledged adherence to the spirit of both the Italian Constitution and European or international instruments – partly because the accusation of censorship is forever lurking in the background.


The Powers Conferred on the Garante
The Garante is empowered to verify lawfulness and fairness of the processing of personal data by journalists via a two-fold approach:

  1. There is the data protection law with its general principles. In particular, there is a rule whereby it is permitted to publish information that is regarded as "essential" "in connection with facts of public interest". I will get back to the meaning and value of these words.
  2. There is a more flexible tool, that is the Code of Practice applying to journalistic activities. This is an example of the co-regulation instruments envisaged by the data protection legislation. It was adopted in 1998 by the Board of Journalists, which is the body officially representing Italian journalists, in co-operation with the Italian Garante (at that time presided over by Professor Stefano Rodotà). The Code allowed applying the general data protection principles to journalism, by taking account of the multifarious cases in which the difficult balance between personal dignity and freedom of the press is to be struck.

The powers conferred on the Garante in case of a breach of the provisions in question range from the power to order that a given individual be provided with certain items of information related to him or her (e.g. which personal data are held by a journalist concerning the said individual, or where such data come from) up to the power to order that inaccurate or incomplete data be updated or rectified. Still, the most stringent tool consists in blocking or preventing any further dissemination of the data – for instance, because they are not essential in connection with facts of public interest – and ordering that any data processed against the law be erased.

In the past ten years, the Garante has actually availed itself of such stringent tools with the utmost caution and in very few cases – out of the hundreds of cases concerning journalism. Preference has ever been given to dialogue, co-operation with journalists´ associations, and raising the awareness of the media world as to the need for respecting personal rights.


Recent Debates
Still, a recent judicial case sparked a lively debate in Italy concerning the use of these tools made available by the law to the Garante. The gist of it is that the Garante prohibited the publication of news and pictures related to certain individuals, more specifically to the sex life of those individuals, as contained in wiretapping records and judicial records that were no longer confidential because the pre-trial phase was over. The individuals in question included members of the show business, photographers, and a politician; the latter had been photographed whilst driving along a street patronised by male transsexual prostitutes. Following our initiative, criticisms were showered on the Garante from all quarters – we were accused of placing the muzzle on the press and being the watchdogs of politics.

There is little doubt that these accusations are groundless. This is due in part to the lack of knowledge of the provisions concerning privacy and journalism, and in part to the funny concept journalists have – whereby they are supposed not to be accountable to anybody for the manner in which they spread news – as well as to the involution process that has ultimately resulted into passing off as information what is merely gossip to the detriment of citizens´ lives.

A similar debate, which was actually less violent because it did not concern all media as such, had been initiated a few months ago by another decision issued by the Garante – to block the broadcasting of two TV programmes concerning DNA-based drug tests that had been performed without informing data subjects. In one case urine samples had been taken in the restrooms of a disco, whilst in the other one a sweat tampon had been applied deceitfully on some MPs. We decided that stealing medical data was inadmissible.

Another case is still pending and concerns the publication on a popular weekly of pictures in which the former prime minister, Mr. Berlusconi, was shown in his villa in Sardinia together with some young ladies. The pictures in themselves were not in breach of Mr. Berlusconi´s or the young ladies´ dignity; however, the Garante found that the manner in which they had been taken was unlawful. Indeed, the photographer had used a powerful zoom – in practice, this was a veritable case of technological trespass on private property.

These cases highlighted key issues such as drawing the line between privacy protection and censorship; defining the scope of the protection of privacy – in particular of sex life – with regard to  prominent public figures, especially politicians; or setting out criteria to clarify what is essential in giving account of matters of public interest and what is not so essential.

The Code of Practice I mentioned earlier does address some of these issues, which clearly mirror the difficulties in reconciling right to know and right to privacy as well as the responsibilities committed to those in charge of striking such a difficult balance.


The Code of Practice: Contents
The Code of Practice applying to journalism and privacy is made up of 13 short articles. It is the end-point of an analysis carried out over a time-span of several years in the most far-sighted quarters of the journalistic world. It is meant to come to terms with the increased demands and sensitivity by the public opinion, which is definitely more responsive than in the past to the contents of media reports and news.

Its provisions apply to all journalists, photographers, and film reporters as well as to anyone publishing, whether regularly or not, papers, essays or other intellectual works. This is where a major difference can be descried compared to a standard code of practice, since this Code on journalism also applies if you are not a professional member of the category.

A fundamental concept is the "materiality of the information". Journalists are expected to consider whether, in reporting a piece of information, disclosing personal data is material to the public interest. There are cases in which a name, a picture, or a purely personal detail are immaterial and, therefore, should not be published.

This principle carries important consequences as regards the admissibility of publishing wiretapping records – given that wiretapping is largely used as an investigational tool in Italy. Indeed, there is a bad habit that has become equally widespread in Italy over the past few years – that of publishing all judicial records that are not to be kept confidential for investigational purposes, and thereby disclosing purely personal details that at times have nothing to do with the matter under investigation and often concern individuals that have nothing to do with the investigation.

Additional safeguards are laid down in the Code to protect specific individuals, values or situations. Let me just quote a few examples: sensitive data (in particular as for sex life and sexual orientation); protection of one´s domicile (including hospitals and prisons); mug shots and/or pictures of persons under arrest; illness and disease; VIPs.

Italian journalists have actually developed an ad-hoc self-regulation Code for children with the Garante´s co-operation. This Code, which applies both to conventional and to web-based media, lays down a very high-profile principle – namely, that the child´s right to anonymity overrides the right to know. Journalists may only breach this anonymity rule if they believe that, in so doing, they are acting in the child´s best interests.


Internet and Search Engines
Technological development, in particular the Internet, allows journalists to access an unprecedented  wealth of information and accordingly disseminate many more data than in the past. This is bringing about additional problems to data subjects. Let me just refer to a specific issue: Internet is doing away with space and time limits in the dissemination of information. News can be read everywhere for an indefinite amount of time and are no longer shelved among dusty paper files – which entails a violation of the "right to oblivion", i.e. the right to have news concerning us forgotten after a reasonable amount of time.

Moreover, a person may happen to accept that newspapers publish a given piece of information he or she disagrees with, but may consider it excessive for that piece of information to remain stored on the web sites run by those newspapers. In such a case, the person in question will apply to us in order to have the information erased.

An even more difficult issue is related to search engines, in particular whenever incorrect or incomplete information can be retrieved from certain web sites – which need not be the "source" sites. This is most frequently the case with judicial proceedings, in that the initial indictment and the arrest (where performed) keep surfacing on the Net whilst no report can be found of the person´s subsequent acquittal – which clearly jeopardises the person´s image considerably. These issues have been addressed by the Garante jointly with Google, in order to ensure the exercise of the rights afforded to citizens.

Furthermore, as regards search engines, our Authority recommends that public bodies should lay down detailed policies as for the period during which texts containing certain personal data may be retrieved via external search engines, whereby at the expiry of such period the data in question should only be retrievable via the site managed by the relevant public body.


In the confrontation between the Garante and journalists, which is also a cultural one, we start from two basic assumptions:

  1. privacy may not be relied upon to hinder the necessary transparency of power;
  2. it is not true that a news is a news, come what may. Journalists are required to make use of their freedom in a manner commensurate with their duty to protect the dignity of individuals.