Fewer Rights for Media, Enhanced Citizens’ Protection against Interference in their Personal Rights

Politicians and persons fulfilling public functions are entitled to enhanced privacy protection, whereas well-known persons, unless they fulfil official functions, shall be treated alike private persons.

Shall information on public figures be disclosed?

MAREK SAFJAN (professor at Warsaw University)

- Transparency of public authorities’ activities clashes with the constitutional principle of the right to privacy. However, the conflict of these two values is difficult to solve without prejudice to at least of one of them. A solution to this problem is a ponderance mechanism, which leads to establishing a hierarchy of values. The protection of privacy and the right to information clash mainly during vetting of persons fulfilling public functions. In which scope can information concerning the past of public figures, who decide on the shape of public life and the functioning of authority, as well as information concerning private life be disclosed and used in public area? We deal here with a very special personal data file, that is with databases, which were created in a way going far beyond the standards of personal data collection, usually by means of unaccepted methods: crime and breach of fundamental principles of law. According to contemporary standards such data constitute an illegal file.

In two judicial decisions of 1998 K 38/97 and K 24/58 the Constitutional Tribunal examined the relations between Art. 47 of the Constitution regarding protection of the right to privacy and the right to protection of openness of public life. The Tribunal made an effort to ponder values. It stated that there is a possibility to disclose information concerning the past and being within the scope of private life in relation to strictly defined persons, because there is no obligation for anyone to be forced to fulfil a public function.

Therefore, it can be demanded that persons wishing to fulfil such functions are subjected to a certain test in the form of vetting declaration. If the declaration proves to be false, such a person shall lose a possibility to fulfil public functions for a certain period of time. It used to be a sanction related to untrue declaration and to the fact of being an agent. The Vetting Act enters private life, but this interference is justified by the principles of a democratic state – stated the Tribunal.

In 2003 the Constitutional Tribunal considered the question, whether giving incomplete information on persons being vetted concerning their function in the past constitutes a breach of the right to privacy. The Constitutional Tribunal stated that incomplete information (disclosing less information than it shall have been revealed) can also be the violation of privacy.

This problem has been recently revealed in May 2007, when the Constitutional Tribunal clearly said that collection of personal data in the form of vetting declarations and disclosure of this data goes beyond reasonable circle of persons who fulfil public functions in the state.

Who and when fulfils a public function?

BOGUSŁAW BANASZAK (professor at Wrocław University)

- On the ground of the Constitution, it is difficult to find unambiguous understanding of the notion of a person fulfilling public functions. According to the Constitutional Tribunal, however, a few crucial premises can be indicated which allow to limit the circle of persons potentially exposed to the loss of certain part of their privacy. For the exercise of a public function is connected with the performance of certain tasks in the office, within public authority structure or at another post involved in decision-making in the public administration structure, as well as in other public institutions. Therefore, indication whether we have to do with a public function shall relate to examination whether a given person within a public institution performs in a certain scope a public task imposed on this institution. Thus it applies to subjects which have at least a limited scope of decision-making competence within a public institution. While trying to indicate the general features deciding on whether a given subject fulfils a public function, one can state without a bigger error risk that it involves such posts and functions the exercise of which is equivalent to undertaking activities which directly influence the legal situation of other persons or is connected at least with drawing up of decisions concerning other subjects. Therefore, the scope of public function does not include service-related and technical posts, e.g. those fulfilled within the framework of public authorities.

Additionally, it can be indicated that the category of persons fulfilling public functions cannot include functions, posts and professions, which have connection neither with public powers (imperium), nor with communal property or State Treasury management (dominium). A feature distinguishing a category of persons fulfilling public functions is a real exercise of public powers or management of communal or State property.

Which are the exceptions to the rule of personal data protection?

EMILIO ACED-FÉLEZ (Data Protection Authority in Madrid)

- Directive 95/46/EC on data protection of individuals with regard to the processing of personal data provides for a few important derogations, firstly, where it is necessary for keeping a balance between fundamental human rights and freedom of information. Article 9 provides for exemptions and derogations as regards data processing. According to this Article Member States may provide for exemptions or derogations from the provisions for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression. EU Member States can do it, provided that it is necessary to reconcile the right to privacy with the rules governing freedom of expression.

When can media interfere in privacy?

NATAŠA PIRC MUSAR (Data Protection Commissioner of Slovenia)

- The judicial decisions of the Human Rights Court in the cases Handyside and Ligens as well as similar judicial decisions allow to conclude that the Court decided to put bigger emphasis on the protection of freedom of expression. The Court often tolerated the interference of media in privacy due to important role of media. However, the nature of media changed towards a marketing product over years and as a result of competition. The Court somewhat modified its original standpoint for the benefit of enhanced privacy protection. An example of it can be the case of Tammer v. Estonia. Tammer, en Estonian journalist, was not guilty of violation of Art. 10 of the Convention. He was convicted by the Estonian Court for the publication of interview with the biographer of the prime minister’s ex-wife, in which he said that she was an unsuitable and irresponsible mother guilty of marriage break-up. The Court stated that at the moment of publication of the interview she had not been the prime minister’s wife any more and hadn’t been fulfilling public functions. As the journalist referred to her private life, he violated her privacy, and not in the least for a justified purpose in the democratic state.

Who is a public figure?

JOANNA SIEŃCZYŁŁO-CHLABICZ (professor at Białystok University)

- There is no doubt that public figures enjoy a narrower scope of the right to privacy than private persons. However, the dispute relates to the interpretation of notions: public figure and public activity under Art. 14 (6) of the Press Law. According to this provision it is prohibited to publish information and data on private life without the interested person’s consent, unless it is directly related to public activity of a given person. The representatives of the Polish and foreign doctrine widely interpret the notion of public figure. The broadest definition of this notion understands public figure as a person who is well-known, even irrespective of its will. Such understanding puts in the same situation a politician and a person accidentally considered as a participant of a public event. I opt for a narrower definition of this notion. Based on Art. 14 (6) of the Press Law I would include in the group of public figures persons meeting the following two criteria: performing public activity in a narrower understanding, that is fulfilling public functions and performing a public trust mandate. Art. 61 of the Constitution constitutes an exception to the rule and limitation of expression of consent to disclosure of information related to private life. It provides for the citizen’s right to obtain information on public authorities and persons fulfilling public functions. Art. 1 of the Press Law also constitutes a limitation; it specifies the basic legal rules governing realisation of the principle of transparency of public life.

In the recent years this standpoint gained support in the judicial decisions of the Polish courts, among others in the judgment in the case of a well-known singer Edyta G., in which the court referred to the boundaries of privacy of well-known persons from public life. The court stated that a distinction shall be made between persons who fulfil public functions and who due to the nature of these functions are subject to social control and between well-known persons. In case of the latter public interest does not require strong social control resulting from Art. 1 of the Press Law.

The Court stressed that it is of fundamental importance for the boundaries of privacy protection. A similar standpoint was taken by the Human Rights Court in the case of Caroline of Hanover v. Germany of 24 June 2004. It concerned the publication by German tabloids of the pictures of Princess Caroline and her children taken during their everyday life activities, i.e. shopping, without their consent. By publishing the pictures, the newspaper interfered in Princess’s privacy. The Human Rights Court indicated that there is a difference in the scope of the right to privacy between persons fulfilling public functions and well-known persons. It emphasised that narrower scope of privacy protection refers to politicians and persons fulfilling public functions, whereas well-known persons, unless they fulfil official functions, shall be treated alike private persons. In the opinion of the German court the Princess of Monaco is a public person and therefore pictures may be taken of her outside of her house. However, the Human Rights Court believes that the princess does not fulfil important functions and information on her private life does not influence crucial discussions on public matters.

The discussion took place in the Polish Diet on October 22. It was organised by the Inspector General for Personal Data Protection.

Drawn up by KATARZYNA ŻACZKIEWICZ