Saturday, August 25, 2012

Minimal level of personal information protection

As more private lives are exported online, reasonable expectations are diminishing.”[1] Internet and especially the presence of social networks have affected individual’s idea of privacy. Furthermore, nowadays people daily share their personal information online and the idea of what is considered as private is entering a gray zone. “When our reasonable expectations diminish, as they have, by necessity our legal protection diminishes.”[2] Ordinary people, anonymous individuals are turning into celebrities. Should therefore the level of personal information protection follow? 

Celebrities and people involved in public life – public figures, enjoy different scope of privacy and personal information protection compared to anonymous individuals. Because of their involvement into public life their level of privacy and personal information protection is lower, but it still exists. In the case of Von Hannover v Germany[3] the applicant is the daughter of Prince Rainier III and the president of certain humanitarian or cultural foundations, and also represents the ruling family at events but she does not, perform any function within or on behalf of the State of Monaco and a German magazine published several photos and from her personal life.[4]

In relation to Article 8 of ECHR, the ECtHR stated that “the concept of private life extends to aspects relating to personal identity, such as a person’s name or a person’s picture. Furthermore, the court ruled that there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life.”[5]  The Court also noted that “a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions.[6] Regarding the right of public to be informed the Court said that this is “an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned.”[7]  However the protection of privacy that also includes protection of private life is very important for every human being. Such protection does not include only personal family circle but also have a social dimension.[8] Therefore “anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life.”[9] The ECtHR held that there has been a violation of Article 8.

When it comes to the protection of privacy and private life, the Court also noted that “protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention.”[10] Furthermore, “freedom of expression also extends to the publication of photos; this is an area in which the protection of the rights and reputation of others takes on particular importance.”[11] It has ben also presented from ECtHR case law that “in certain circumstances, a person has a “legitimate expectation” of protection and respect for his or her private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant would have had a reasonable expectation of privacy for such calls,”[12] as it was held in the case Halford v. the United Kingdom.[13]

Public figures’ privacy protection falls within a scope of Article 8. However it is unclear how close are individuals that use benefits of modern era, to such public figures. When it comes to bloggers, Anthony Ciolli in his article “Blogers as public figures,” stated that they see themselves as a new, unique media that have more a personal nature than other mainstream media. [14] And since they usually do not have a profit motive, “it is inappropriate for courts and other institutions to hold bloggers to the same standards as print and television content.”[15] Ciolli argues that bloggers should be recognized as ‘limited purpose public figures’ which would grant them better protection when their right to privacy would be violated with disclosure of personal facts or when they would seek a recovery for defamation.[16] This reasoning leans towards the idea of bloggers as modern journalists, because it does require only Internet connection and everyone can get access to online listeners.[17] Here arises the question of whether private citizens with access to the Internet have become some kind of public figures. It also begs the question of how much use would push a private citizen over the border towards becoming a public figure. Ciolli said that it would be difficult to equate most bloggers with private citizens who are not bloggers, when it comes to the question of privacy.[18] What about people, who use social networks or people who mainly shop online?

Even after all the information that I have presented, it is still hard to answer this question in practice. I, for example, am a blogger. I write a blog about the desserts I bake. I share pictures of my food and the recipes. My blog is private, accessible only through a link. My blog has six registered readers. According to Ciolli, should I therefore be considered to be a limited purpose public figure? I have a hard time to accept and cannot argue for that. However, Ciolli distinguished blogs written for the joy of its owner and blogs who are there to get public attention or provide the general public with daily news where the author is some kind of unqualified journalist.[19] Yet he also stated that the border line is very unclear.[20]

Does my blog fall within the scope of the household exception? Yes, most probably. But what if I share the information that the link to my blog is published on my Facebook profile, where I have over 800 friends; does that change its perception? Maybe. According to Art. 29 WP “a high number of contacts could be an indicator that the household exception does not apply and that the user would be considered a data controller.”[21] Therefore in my case the household exception might not apply and I might be a data collector that has to follow rules set out in Directive 95/46/EC when it comes to the processing of others’ personal information. But, I might still be considered to be a private citizen. And I am definitely interested to have and to keep control over my personal information in order to protect my privacy. In following sections I analyzed why individuals have an interest in the control over their personal information.

[1] Kleinman, Z. (2010, January 8). How online life distors privacy rights for all. Retrieved May 3, 2012, from BBC News:   
[2] Ibid.
[3] Von Hannover v. Germany, 59320/00 (European Court Of Human Rights June 24, 2004).
[4] Ibid.
[5] Id. p. 50.
[6] Id. p. 63.
[7] Id. p. 64.
[8] Id. p. 69.
[9] Von Hannover v Germany, 2004, p. 69.
[10] Id. p. 58.
[11] Id. p. 59.
[12] Id. p. 51.
[13] Halford v. United Kingdom, Application number 20605/92 (European Court of Human Rights June 25, 1997).
[14] Ciolli, A. (2006-2007). Bloggers as Public Figures. Boston University Public Interest Law Journal, 255-283, p.256.
[15] Ibid.
[16] Id. p. 257.
[17] Id. p. 260.
[18] Id. p. 257.
[19] Ciolli, 2006-2007, p. 262.
[20] Ibid.
[21] Article 29 Data Protection Working Party:, 2009, p. 6.