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Data Protection and Media (1990)

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Data Protection and Media (1990) Data protection and media (1990) Study prepared by the Committee of experts on data protection (CJ-PD) under the authority of the European Committee on Legal Co-operation (CDCJ), Strasbourg 1990 INTRODUCTION THE SITUATION IN THE MEMBER STATES ALTERNATIVE REMEDIES FOR THE DATA SUBJECT CONSTRUCTING A DATA PROTECTION POLICY FOR THE MEDIA RELEVANT EXTRACTS FROM RESOLUTION 428 (1970) RELEVANT EXTRACTS FROM RESOLUTION (74) 26 CONCLUSION INTRODUCTION 1. It is becoming increasingly difficult to draw the parameters of data protection. It can no longer be regarded as a discrete legal discipline of sole relevance to specific applications of automation. It is now a fact that the collection, storage and processing of personal data characterises most activities today and inevitably comes into conflict with the legal regimes which govern these activities. Since data protection norms seek to regulate the various stages of data processing, it is the case that situations may be brought about where data protection competes with other legal norms for the purpose of dispute resolution in the context of these situations. 2. The application of competing norms to one particular legal issue is of course not a new phenomenon. By way of illustration, courts at the national and international levels have by now become quite accustomed to finding an appropriate balance between the claims of different fundamental human rights provisions to regulate particular legal problems. In fact, the drafters of the Convention for the protection of individuals with regard to automatic processing of personal data of 28 January 1981 were obliged to balance the right to private life against the freedom of expression so as to produce a harmonious approach to the issue of transborder data flows. 3. In the context of its sectoral approach to data protection issues, the intergovernmental Committee of experts on data protection has also accustomed itself to the need to allow for cohabitation between data protection principles and other legal concepts. For example, in the framework of Recommendation No. R (89) 2 on the protection of personal data used for employment purposes, reference may be made to the adjustment of national labour law and practice in the area of co-determination or employee consultation, so as to allow such principles as "fair and lawful collection", "purpose specification", etc., to be accommodated in the context of employer-employee relations. Again, in the framework of Recommendation No. R (87) 15 regulating the use of personal data in the police sector, the approach followed seeks to allow the law on police powers to be adjusted to the requirements of data protection. 4. Accordingly, the tension between data protection and other legal disciplines does not give rise to a new debate. However, as regards the media, it may be argued that the issues at stake assume greater proportions, since the media are premised on a fundamental human right expressed in Article 10 of the European Convention on Human Rights: "1. 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 authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." 5. Unlike Article 19 of the Universal Declaration of Human Rights, Article 10 of the European Convention on Human Rights does not specifically refer to the freedom of the press. However, the judgments of the European Court of Human Rights, as well as the decisions of the European Commission of Human Rights, leave no doubt that freedom of the press is an integral part of the protection envisaged in Article 10. Consider the view expressed by the European Court of Human Rights in the Lingens case (Series A no. 103): "41. In this connection, the Court has to recall that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society"... These principles are of particular importance as far as the press is concerned: ..." 6. The role of the media in the context of Article 10 of the European Convention on Human Rights has also been spelt out in greater detail by the Committee of Ministers of the Council of Europe in its Declaration on the freedom of expression and information of 29 April 1982, in which the member States: "I. Reiterate their firm attachment to the principles of freedom of expression and information as a basic element of a democratic and pluralist society; II. Declare that in the field of information and mass media they seek to achieve the following objectives: a. protection of the right of everyone, regardless of frontiers, to express himself, to seek and receive information and ideas, whatever their source, as well as to impart them under the conditions set out in Article 10 of the European Convention on Human Rights;". 7. The problem is of course that data protection itself has its genesis in the fundamental right to private life which is guaranteed by Article 8 of the European Convention on Human Rights. In fact, data protection is recognised as a constitutional right per se by certain member States of the Council of Europe. This approach may be found for example in the Constitutions of Austria , the Netherlands , Portugal and Spain , all of which contain provisions guaranteeing the integrity of the individual against the abuse of data processing. Even in the absence of express reference to a constitutional right to data protection, it may be the case that an enlightened interpretation of the classic right to private life laid down in other constitutions may give rise to a right to data protection. It is interesting to note that the European Court of Human Rights and the European Commission of Human Rights have both recently declared their readiness to read data protection into the fundamental right to private life laid down in Article 8 of the European Convention on Human Rights. For example, in application no. 9248/81, it was clearly reaffirmed by the European Commission of Human Rights that: "The Commission has already held that data protection comes within the scope of Article 8 of the European Convention on Human Rights." 8. The potential for conflict is rendered more acute with the increasing recourse to automation by the various organs of the media (press, broadcasting, television). It is the case that the specific legal regimes which govern the media - press law, media law, libel, personality rights, the right of reply, etc. - have all grown up in the context of a media world characterised by hard copy. Today, however, the broadcast news item or television image or the periodical is the end product of an automated process. Taking a simplistic view of things, automatic data processing may begin with the filing of the journalist's contribution on his electronic notebook, its subsequent transfer and storage on the publisher's computer, its reappearance in printed form, and its consignment to electronic archives where it can be summoned up at will within the news room or even accessed on- line from outside. As regards the audio-visual media, the tendency now is to store news items, film, broadcasts, etc., on a digitalised medium. The sixth international Colloquy on the European Convention on Human Rights (Sevilla, 1985) also highlighted the extent to which data processing coupled with telecommunications has given rise to a totally new electronic environment for collecting, storing and disseminating information. In a key report, Professor M. Bullinger (Federal Republic of Germany) notes : "Technical evolution is about to transform electronic media into a presslike variety of means for disseminating information and ideas. Interactive videotex by telephone cable permits the distribution of 'electronic leaflets' to the electronic 'letter boxes' of selected households, and the reception of these 'electronic leaflets' upon request. Non- interactive wireless teletext or cabletext, a relatively inexpensive cyclical transmission of 'magazines' composed of small rectangles with textual information, enables a subscriber to choose at a given moment a certain 'page' and make it visible on his television set, comparable to the consulting of a booklet or leaflet page. Broadband cable networks in connection with telecommunication satellites technically allow an almost unlimited number of video and sound programmes to be transmitted... " 9. If the information referred to in paragraph 8 refers to named individuals, then at first glance it seems to be the case that data protection norms are engaged at the stages of collection, storage and processing of personal data by the organs of the media. Accordingly, the data quality requirements articulated in Article 5 of Convention 108, the rights of the data subject as set out in Article 8, the need for safeguards for sensitive data laid down in Article 6 as well as the data security requirements specified in Article 7 should, in principle, apply.
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