Decisions About “Disclosure of Personal Data”
The European Court of Human Rights (“Court”) refers to the following two principles found in the European Convention on Human Rights when determining about disclosure of personal data: Freedom of Expression and Right to Respect for Private and Family Life.
Article 8 of the Convention under the title of “Right to Respect for Private and Family Life”, provides that everyone has the right to respect for his private and family life, his home and his correspondence. The Convention held that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Besides, Article 10 of the Convention under the title of “Freedom of Expression” provides that everyone has the right to freedom of expression. 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.
Accordingly, the court evaluates as to whether there is a violation of rights within the framework of the above-mentioned principles.
In this article, concerning disclosure of personal data, M.S. v. Sweden, Peck v. The United Kingdom, Panteleyenko v. Ukraine, Armonas v. Lithuania and Biriuk v. Lithuania, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland decisions adjudicated by ECHR will be summarized.
1. M.S. v. Sweden
This case concerned the communication by a clinic to a social-security body of medical records containing information about an abortion performed on the applicant.
The Court held that there had been no violation of Article 8 of the Convention, finding that there had been relevant and sufficient reasons for the communication of the applicant’s medical records by the clinic to the social-security body and that the measure had not been disproportionate to the legitimate aim pursued, namely, by enabling the social-security body to determine whether the conditions for granting the applicant compensation for industrial injury had been met, to protect the economic well-being of the country.
Moreover, the court determined that the contested measure was subject to important limitations and was accompanied by effective and adequate safeguards against abuse. Therefore, in this decision, the proportionality assessment was made in the transmission of personal data to the social security institution.
You may access the Decision by this link; M.S. v. Sweden (coe.int)
2. Peck v. The United Kingdom
This case concerned the disclosure to the media of footage filmed in a street by a closed-circuit television (CCTV) camera installed by the local council, showing the applicant cutting his wrists.
It did in particular not find that, in the circumstances of this case, there were relevant or sufficient reasons which would justify the direct disclosure by the Council to the public of stills from the footage without the Council obtaining the applicant’s consent or masking his identity, or which would justify its disclosures to the media without the Council taking steps to ensure so far as possible that such masking would be effected by the media.
The crime-prevention objective and context of the disclosures demanded particular scrutiny and care in these respects in the present case. The Court also held that there had been a violation of Article 13 (right to an effective remedy) of the Convention read in conjunction with Article 8, finding that the applicant had had no effective remedy in relation to the violation of his right to respect for his private life.
The Court found that the disclosure of the footage by the Municipal Council had not been accompanied by sufficient safeguards and constituted disproportionate and unjustified interference with the applicant’s private life, in breach of Article 8 of the Convention
You may access the Decision by this link; Chamber judgment Peck v. United Kingdom 28.01.03 (coe.int)
3. Panteleyenko v. Ukraine
The applicant complained in particular about the disclosure at a court hearing of confidential information regarding his mental state and psychiatric treatment.
It held that there had been a violation of Article 8 of the Convention, noting in particular that the details in issue were incapable of affecting the outcome of the litigation, that the first-instance court’s request for information was redundant, as the information was not “important for an inquiry, pre-trial investigation or trial”, and was thus unlawful for the purposes of the Psychiatric Medical Assistance Act 2000.
The Court found that obtaining from a psychiatric hospital confidential information regarding the applicant’s mental state and relevant medical treatment and disclosing it at a public hearing had constituted an interference with the applicant’s right to respect for his private life.
You may access the Decision by this link; Panteleyenko v. Ukraine (coe.int)
4. Armonas v. Lithuania and Biriuk v. Lithuania
In 2001, Lithuania’s biggest daily newspaper published an article on its front page concerning an AIDS threat in a remote part of Lithuania. In particular, medical staff from an AIDS centre and an hospital were cited as having confirmed that the applicants were HIV positive. The second applicant, described as “notoriously promiscuous”, was also said to have had two illegitimate children with the first applicant.
Particularly concerned about the fact that, according to the newspaper, the information about the applicants’ illness had been confirmed by medical staff, it observed that it was crucial that domestic law safeguarded patient confidentiality and discouraged any disclosures on personal data, especially bearing in mind the negative impact of such disclosures on the willingness of others to take voluntary tests for HIV and seek appropriate treatment.
The Court held that there had been a violation of Article 8 of the Convention on account of the low ceiling imposed on damages awarded to the applicants.
You may access the Decision by this link; Insufficient redress in Lithuanian breach of privacy cases 25.11.08 (coe.int) Insufficient redress in Lithuanian breach of privacy cases 25.11.08 (coe.int)
5. Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland
In this decision, unlike other decisions, the court evaluated the violation of Article 8 and Article 10 of the Convention in terms of “Freedom of Expression”.
After two companies had published the personal tax information of 1.2 million people, the domestic authorities ruled that such wholesale publication of personal data had been unlawful under data protection laws, and barred such mass publications in future. The companies complained that the ban had violated their right to freedom of expression.
The Grand Chamber held that there had been no violation of Article 10 (freedom of expression) of the Convention. It noted in particular that the ban had interfered with the companies’ freedom of expression. However, it had not violated Article 10 because it had been in accordance with the law, it had pursued the legitimate aim of protecting individuals’ privacy, and it had struck a fair balance between the right to privacy and the right to freedom of expression.
In this case, the Grand Chamber agreed with the conclusion of the domestic courts, that the mass collection and wholesale dissemination of taxation data had not contributed to a debate of public interest, and had not been for a solely journalistic purpose.
You may access the Decision by this link; Grand Chamber judgment Satakunnan Markkinaporssi Oy and Satamedia Oy v. Finland – ban on publishing tax data (coe.int)
As a result, it is seen in the above-mentioned decisions that the Court takes the 8th article and 10th article of the Convention as a basis when evaluating the concrete facts regarding disclosure of personal data. In addition, the Court evaluates as to whether the intervention was proportionate and the country’s legislation in the concrete case contains regulations that may violate the rights of individuals.
To see our other articles, you may follow the NSN Bulletin via the link.
Authors: Bilge Derinbay, Hande Ülker Pehlivan
Contact: bilge.derinbay@nsn-law.com