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Media & Information
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Personal data & privacy

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Privacy

What is privacy?

 

Privacy means the right ‘to be left alone’.
According to Article 8 of the European Convention on Human rights

“everyone has the right to respect for his private and family life, his home and his correspondence”.

  

How Did Privacy Originate?

 

The first court decision related to privacy was delivered by Michigan Supreme Court in 1881. The court ordered a person to pay damages for witnessing a woman giving birth. According to the court, the woman had a legal right to the privacy of her apartment. 

 

The right to be left alone was’ later mentioned by Justice Thomas Cooley in one of court decisions. Final development of this concept is related to an article in Harvard Law Review published by Samuel Warren and Louis Brandeis in 1890. The article was triggered by the immense amount of gossip published by Boston press on the wedding of Mr. Warren’s daughter. This angered Mr. Warren so much that he got in touch with his friend Louis Brandeis and it was their mutual article that influenced the legal development of the concept of privacy the most. The article underlined that if previously restriction of freedom implied only physical limitations, later the concept of restricting a person's “spiritual side, emotions and intellect” were introduced into the law and nowadays it implies the right to be left alone too.

Privacy in the Media

 

When covering a story about a person’s private life journalists must observe the following standards:
  • keep a balance between the freedom of information and a person’s legitimate expectation of privacy;
  • make a distinction between public and private figures;
  • make a distinction between public and private spaces;
  • never intrude into a person’s tragedy;
  • respect the interests of a child;
  • apply commensurate means to obtain a material.


Imbalance between the right to privacy and the right to information may be warranted only:

  • when there is a public interest, where protection of the legitimate interest of the public outweighs the inflicted harm
  • protection of the legitimate interests of the public is a proportionate means to this end

Legitimate Public Interest

 

Article 6 of the Public Broadcasters’ Code of Conduct considers the following issues as legitimate public interests: exposing a crime or significantly anti-social behaviour, corruption or injustice, protecting public health and safety, preventing people from being misled by some statement or action of an individual or organization, disclosing any other information that allows people to make a significantly more informed decision about matters of public importance.

However, public need to receive information should be distinguished from the desire to receive information. Any interest, for instance a mere curiosity shall not be considered legitimate.

Public and Private Persons

 

There is a different publicity standard for private and public figures. According to Council of Europe’s Parliamentary Assembly, “public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.” Besides politicians, acting and former government officials these are the representatives of show business, sportspersons, etc.

As defined by the European Court of Human Rights, “a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures”.

Public figures have more obligation to tolerate because:
  • they put themselves into the spotlight by consenting to be the object of public debate, at least in relation to the issues that affect their public duties.
  • provided the nature of their activities, public interest in public figures is high


However this does not mean that public figures have no right to privacy. Journalists must refrain from releasing information that is not related to the discharge of a person's public duties. Only exception is public interest. For instance, if a public figure’s private life affects the discharge of public duties, in this case the public interests overweighs the right to privacy.

 

Private and Public Space

 

Private space is a private domain/property where a person has a reasonable expectation of privacy. For example, one’s own home is considered a private space, as well as a hospital for a patient who checks in to these public places for a treatment and has a reasonable expectation of privacy there. A public space is a place where a person has a less expectation of privacy. In Mrs Renate John v. Sunday Mirror UK Press Complaints Commission handled a situation where journalists had secretly taken photos of the complainant. The Commission considered that a public car park or a petrol station where the photos had been taken were not the places where anyone could have a reasonable expectation of privacy.

At the same time, even in public spaces a person is not deprived of the right to privacy. There are places where regardless of the crowd everybody should enjoy the expectation of privacy. In Sir Paul Mcartney v. Hello! Press Complaints Commission indicated that a cathedral is a clear example of a place where there is a reasonable expectation of privacy and journalists must respect that.

In private as well as on certain occasions in public spaces (public school, hospital, etc), journalists need a prior consent of the owner/administrative personel for photo or video recording. Exception shall be made for a public interest only.

According to Article 6 of Georgian Public Broadcaster’s Code of Conduct, some activities or situations are so personal that their recording or filming even in public places can be regarded as infringement of privacy. For example, a person's emotional state during a tragedy or other incidents.

Drone Recording

 

A drone, or in other words, remotely controlled aircraft, is a technical mean to intrude into a private space. Although media does not physically trespass a private space, but it can infringe the reasonable expectation of privacy by remotely filming a private space with a drone.

Use of drones or unmanned aircrafts is regulated by a special EU Regulation. According to the document, to mitigate risks to privacy drones must have the corresponding functionalities which take into account the principles of privacy by design and by default.

Also, the regulation requires a mandatory registration of drones in certain cases, including when it endangers the right to privacy.

According to the recommendations of European Aviation Safety, the distance of an unmanned aircraft from people, provided its weight, should be an average of 50 meters. On the basis of the aforesaid standard, in 2017 Georgia introduced regulations which stipulate that drone recording is admissible:
  • with a distance of at least 50 meters above a group of persons or horizontally from any person;
  • with a distance of at least 50 meters horizontally from a building, except when the pilot is the owner of the building or the owner has consented to recording. 


Exception for professional activities is admissible upon the permission of Civil Aviation Agency.


Article 35 of the Broadcasters’ Code

 

Article 35 of the Broadcasters’ Code of Conduct lays down the rules that broadcasting media has to comply with to protect the right to privacy.

Door-stepping. Door-stepping is the recording of an interview or a phone conversation for broadcasting without a prior warning of an interviewee. Door-stepping shall not be justified unless there is good reason to believe that an investigation will be frustrated if the subject is approached openly.The door-stepping rules do not apply to random public opinion polls or vox pops.

Broadcasting a Personal Tragedy. Broadcasters shall not take or broadcast material featuring victims of accidents or individuals suffering a personal tragedy, including in a public place or at funerals, if it infringes privacy.

Children. Broadcasters’ Code of Conduct establishes that broadcasters shall pay special attention to privacy of individuals under eighteen. People under eighteen do not lose their right to privacy because of the fame or notoriety of their parents.

Persons under eighteen can be asked for views only with the consent of their parents, guardians or carers.

Secret Recording

Given a public interest, Broadcasters’ Code of Conduct allows secret filming or recording for gathering and broadcasting information in exceptional cases, including:

a) When the event is in the public interest, there are reasonable grounds to suspect that further material evidence can be obtained and it is necessary to ensure accuracy of the programme;

b) As a method of sociological research in the public interest, where no other methods could be applied to reveal the attitudes or opinions regarding the issue in question;

c) To obtain material for comedy and entertainment programmes where the secret recording is one of accepted methods, provided that it does not represent a gross infringement of individuals’ privacy and cause a significant embarrassment, stress or discomfort to individuals.