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Publishing Transcripts of Tapping Records - 21st day of June 2006 [1301195]

[doc. web n. 1301195]

[versione italiana doc. web n. 1299615]

Publishing Transcripts of Tapping Records - 21st day of June 2006

 

GARANTE PER LA PROTEZIONE DEI DATI PERSONALI

Having convened today, with the participation of Prof. Francesco Pizzetti, President, Mr. Giuseppe Chiaravalloti, Vice-President, Mr. Mauro Paissan and Mr. Giuseppe Fortunato, Members, and Mr. Giovanni Buttarelli, Secretary General;

Having regard to the records acquired ex officio in connection with the repeated publication by several newspapers, in the past few days, of transcripts of telephone wire tappings that had been ordered by judicial authorities, concerning several individuals;

Whereas the Garante is empowered by Section 154(1), letter c), of the DP Code to set out, also ex officio, the necessary or appropriate measures data controllers are to take in order to bring their processing operations into line with the legislation in force;

Noting that it is necessary to consider, ex officio and on an urgent basis, also in the absence of reports, claims and/or complaints, which have not yet been lodged with the Garante, the issues related to respect for the rights and fundamental freedoms of the individuals concerned by the aforementioned publication, with particular regard to their privacy, dignity, and personal identity as well as to the fundamental right to protection of their personal data;

Noting, from the records on file, that the offences being investigated within the framework of the pre-trial investigations currently in progress at several judicial authorities relate to circumstances and events that justify, in principle, exercise of freedom of the press and entail the public interest in being informed, also in a detailed manner.

Noting, however, that there is the unquestionable need to forthwith ensure, in a broader perspective, the adequate protection of the rights of individuals concerned by the basically unabridged publication of numberless excerpts from phone conversations carried on also with third parties, who either have nothing to do with the circumstances being investigated or do not appear to be  concerned so far by the ongoing investigations, whilst in other cases the excerpts in question concern personal acquaintances or family members or maybe the victims of the alleged offences; noting, moreover, that some excerpts from the said conversations relate to purely personal conduct by individuals that are involved in the ongoing investigations, whereby the said conduct is not directly related to criminally relevant circumstances;

Whereas there is as yet no proof, based on the records available as well as on the current regulatory framework concerning criminal proceedings, that publication of the transcripts in question was performed in breach of the secrecy rules applying to pre-trial investigations or else of the ban against publishing records from criminal proceedings;

Noting that the Criminal Procedure Code:

a) prohibits confidential records as well as the contents of such records from being published (Section 114(1) of the CPC);
b) prohibits records that are no longer confidential from being published until completion of pre-trial investigations and/or the pre-trial hearing (Section 114(2) of the CPC);
c) always allows publishing the contents of non-confidential records (Section 114(7) of the CPC) and considers that the investigational activities carried out by public prosecutors and judicial police are no longer confidential once defendant has become aware thereof (Section 329 of the CPC; see also Section 268(6) of the CPC as for depositing records upon conclusion of wiretapping activities);

Noting that a wide gamut of records of telephone conversations is made available to the public opinion, at times indiscriminately, without adequately selecting and assessing such records, partly on account of the mechanism set out in the law in order to include, in the case file, only those conversations that are relevant to the criminal proceeding, and that the mechanism at issue is no longer suitable by having regard to the unrelenting publication of unabridged procedural records; noting, moreover, that the said records may result into facts, circumstances, and personal relationships being represented inaccurately and that they are not always fundamental in order to inform the public opinion as required;

Whereas the legislation in force on personal data protection reconciles fundamental rights of the individuals with citizens’ right to be informed and freedom of the press (legislative decree no. 196/2003, and Code of Practice applying to journalistic activities) and sets out detailed, express safeguards to be respected; namely,

a) it ensures that journalists have the right to report on facts of public interest, albeit in compliance with the principle of materiality of the information;

b) it allows information of substantial public or social interest to be disclosed lawfully if that information, also where detailed, is indispensable on account of the originality of the relevant circumstances, the characteristics of the persons involved, or the description of the peculiar manner in which those circumstances took place;

c) it requires that no reference should be made to relatives and/or other individuals that are not involved in the facts at issue;

d) it requires the dignity of individuals to be respected in full;

e) it protects the sex life of individuals by requiring journalists to abstain from describing sexual habits of identified or identifiable individuals; where the individuals in question play an especially prominent social or public role, journalists are called upon to always respect both the principle of materiality of the information and the dignity of the said individuals;

Whereas the indiscriminate publication of transcripts from many tapped telephone conversations may also give rise to a violation of the provisions set out in the European Human Rights Convention, which reconcile the right to the respect for private and family life with freedom of expression (Articles 8 and 10), in particular where such publication ultimately tickles the reader’s  curiosity about private, intimate aspects without fully meeting the requirement to duly inform on facts of public interest;

Whereas it is therefore necessary to require all news media to more carefully, deeply, autonomously and responsibly assess, also in the light of the principles set out in provisions whereby the Garante prohibited or blocked the processing of personal data in respect of the issues in question, whether the detailed information published is actually essential, by taking account that the reduced privacy expectation of public figures and/or individuals holding public offices does not rule out the fundamental requirement to screen the sources available for publication, which a journalist should evaluate also in the light of the inescapable duty to safeguard the dignity of individuals and the rights of third parties;

Reserving the right to take additional decisions in specific cases where complaints, reports and/or claims are lodged by data subjects;

Having regard to the considerations made by the Secretary General pursuant to Section 15 of the Garante’s Rules of Procedure no. 1/2000;

Acting on the report submitted by Mr. Giuseppe Chiaravalloti and Mr. Mauro Paissan;

Noting, finally, that it is necessary under Section 154(1), letter c), of the Personal Data Protection Code (no. 196/2003) to require all the publishers that are controllers of the processing of data in the journalistic sector to forthwith bring the processing operations of personal data into line with the principles set out herein, also in view of preventing additional breaches, insofar as those operations relate to the publication of transcripts from telephone wire tapping records;

Noting that a copy of this provision must be forwarded to the National Board of the Roll of Journalists for the latter to consider it as appropriate;

BASED ON THE ABOVE PREMISES,THE GARANTE  

a) under Section 154(1), letter c), of the Personal Data Protection Code requires the controllers of the processing of data in the journalistic sector to forthwith bring the processing of personal data related to the publication of transcripts from telephone tapping records into line with all the principles laid down both in the said Code and in the Code of Practice for journalistic activities annexed thereto, which have been referred to in this provision;

b) orders that a copy of this decision be sent to the National Board of the Roll of Journalists.

Done in Rome, this 21st day of June 2006

THE PRESIDENT
Pizzetti

THE RAPPORTEURS
Chiaravalloti
Paissan

THE SECRETARY GENERAL
Buttarelli