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The right of privacy: european experiences (*)
Maria Inmaculada Casado Guil
Abogado in Granada
“European Experiences Through Caselaw” reflects a landmark case from The European Court of Justice on the interpretation of the Personal Data Protection Directive. In addition, covers one of the most celebrated British lawsuits on this issue; the case between the model Mrs. Naomi Campbell and the tabloid The Mirror.
The ECJ ruled for the first time on the scope of the data protection directive and freedom of movement for such data on the internet by means of Bodil Linqvist case, C-101/01. In addition to her job, Mrs. Linqvist did some voluntary work as a catechist in the parish of Alseda (Sweden). She also followed a data processing course on which she had to set up a home page on the internet. Lindqvist set up internet pages at home on her personal computer.
The pages contained information about Mrs Lindqvist and 18 colleagues of the church. Mrs Lindqvist also described the jobs held by her colleagues and their hobbies. Telephone numbers and names were also mentioned. She also stated that one colleague had injured her foot and was on half-time on medical grounds. She did not tell her collegues about the existence of these pages and did not notify them to the Swedish Data Protection Authority.
She was fined by the District Court in Sweden and she appealed to the Göta hovrätt which referred 7 preliminary questions to the ECJ. These are:
Whether the act of referring, on an internet page, to various persons and identifying them by name or by other means, for instance by giving their telephone number or information regarding their working conditions and hobbies, constitutes the processing of personal data wholly or partly by automatic means within the meaning of Article 3(1) of Directive 95/46. The Court answered affirmatively to this question because, according to the Directive, processing personal data is any operation or set of operations performed upon personal data, wheter or not by automatic means.
As the first question was answered in the affirmative, there was no need to anwser the second.
Whether processing of personal data such as that described in the first question is covered by one of the exceptions in Article 3(2) of Directive 95/46. The answer of the ECJ was no, it is not covered by the first exception because the activity of Mrs. Linqvist does not fall within the field of activities beyond the scope of the Comunity Law and voluntary work does not amount to that either. The second exception was not applicable because posting on internet cannot be considered an activity carried out in the course of private or family life, among other reasons because by posting on the net there are made accessible to an idefinite number of people.
Whether reference to the fact that an individual has injured her foot and is on half-time on medical grounds constitutes personal data concerning health within the meaning of Article 8(1) of Directive 95/46. In the light of the purpose of the directive, the expression data concerning health must be given a wide interpretation so as to include information concerning all aspects, both physical and mental, of the health of an individual. Therefore, the answer of the ECJ was yes.
Whether there is any transfer [of data] to a third country within the meaning of Article 25 of Directive 95/46 where an individual in a Member State loads personal data onto an internet page which is stored on an internet site on which the page can be consulted and which is hosted by a natural or legal person (the hosting provider) who is established in that State or in another Member State, thereby making those data accessible to anyone who connects to the internet, including people in a third country. The answer of the Court was in the negative for several reasons. Some of them are that Mrs. Linqvist loaded the info on an internet site (the host provider). It is actually the host provider who transfers the info and not Mrs. Linqvist. In addition, Mrs. Linqvinst’s page did not send the information automatically but people had to seek access to the page intentionally.
Whether the provisions of Directive 95/46 bring about a restriction which conflicts with the general principles of freedom of expression or other freedoms and rights, which are applicable within the European Union and are enshrined in inter alia Article 10 of the ECHR. The Court answered “no, they do not bring a restriction” and added “it is for the national authorities and courts responsible for applying the national legislation implementing Directive 95/46 to ensure a fair balance between the rights and interests in question, including the fundamental rights protected by the Community legal order”.
Whether it is permissible for the Member States to provide for greater protection for personal data or a wider scope than are required under Directive 95/46. And the European Court of Justice answered “measures taken by the Member States to ensure the protection of personal data must be consistent both with the provisions of Directive 95/46 and with its objective of maintaining a balance between freedom of movement of personal data and the protection of private life. However, nothing prevents a Member State from extending the scope of the national legislation implementing the provisions of Directive 95/46 to areas not included in the scope thereof provided that no other provision of Community law precludes it.”
The other case concerns fashion top-model Naomi Campbell. The Mirror, a British newspaper, published the 1st of Febreaury 2001 as front cover sizeable photos of the model leaving a meeting of Narcotics Anonymous. The title read “Exclusive; I am a drug addict”. There were futher publications on the same issue by the Mirror.
Ms. Campbell sued The MGN Ltd. (Mirror Group Newspapers). She sought compensation under the Data Protection Act 98, which implements Data Protection Directive 95/46 in the U.K. and damages under the Common Law Doctrine of Breach of Confidence.
She won at first instance as The High Court considered that the information disclosed about the model referred to medical conditions and therefore, fell within the scope of sensitive data under Data Protection Act. As a general rule, the category of sensitive personal data cannot be proccessed unless there is explicit consent from the data subject for that processing or there is any derogation or exception applicable. She was finally awarded 5.250€.
On appeal, the House of Appeal reversed the decision and ruled that the exception for media as provided by section 32 of the Data Protection Act, applied to the case. The Mirror reasonably believed that the publication was in the public interest as Ms. Campbell had previously lied about her addiction.
Eventually, The House of Lords ruled in Ms. Campbell favour’s. However, their Lords, by a tight 2 to 3, did not reach their decision by reference to the Data Protection Act. In fact, they did not even metion it. The decision arrived on the grounds of Article 8, Right to Private and Family Life and Article 10 Right to Freedom of Expression of the European Convention on Human Rights as incorporated by the Human Rights Act 98 into the British Legal System.
(*)Abstract
Privacy and
Data Protection Day, Cesena, 31 maggio 2005