Does a public figure have the right to privacy?
Public figures who deprived themselves of a greater degree of privacy as part of their jobs should definitely expect a lesser degree of privacy than “ordinary” citizens. When deciding whether someone’s right to privacy should prevail over free expression, the following main criteria, developed from the case law of the European Court of Human Rights, should be taken into account: a) whether somebody performs a public/official duty; b) whether that person is in a place and/or situation where he/she has a reasonable expectation of privacy; and c) whether the purpose of the reporting is to contribute to a public debate (for example, because it relates to information which appears to conflict with the function which he/she holds) or serves only to entertain.
Additionally, the mere fact that readers/viewers want to know about a public figure’s private life is not sufficient justification to publish such information. Furthermore, the fact that something happens outside of a public figure’s home does not constitute an adequate reason to disseminate it to a wider public. However, although taking these general rules can be very useful, a unique pattern for all cases cannot be made.
The Serbian Law on Public Information and the Media (LPIM) and the Code of Serbian Journalists are generally aligned with these rules. Although LPIM provides additional criteria when determining which right should prevail, it also has one questionable provision. Namely, it stipulates that the right to freedom of expression should prevail over the right to privacy if an individual, through his/her public statements or conduct in private and professional life, attracts public attention and thus provides a motive for publication of certain information. This does not offer clear guidelines to the media or to the individuals involved about what kinds of “conduct in private and professional life” can attract “the attention of the public.”
Last year there were several instances of misconduct by different media involving public persons in Serbia, such as severe intrusions into the private lives of deceased actors, among many others. None of the information published had the purpose of contributing to a public debate, per the mentioned criteria.
What to do if your right to privacy is breached?
Individuals who believe their right to privacy has been breached have two ways to claim their rights: (1) To refer claims to the Press Council (the “Council”) or the Regulatory Authority for Electronic Media (RAEM), depending on the type of media involved; or (2) to initiate a lawsuit in the Higher Court in Belgrade.
If the Council establishes that someone’s right to privacy has been breached, it publicly warns the specific media to cease the actions that caused the breach. The intention is to create some sort of a guide for the media and to prevent them from taking similar actions in the future.
In 2016, more than 1500 cases of misconduct relating to someone’s right to privacy were discovered in the Council’s annual monitoring of eight newspapers. However, the number of complaints submitted to the Council by the affected individuals was substantially smaller.
The RAEM has the authority to terminate the broadcast of a form of electronic media found in violation of an individual’s right to privacy and to revoke its broadcast license.
However, it seems that the efforts and sanctions of the Council and the RAEM are not being implemented in the most suitable way, as they have not had the desired impact on the media.
Annually, approximately 300-400 individuals submit a request for non-pecuniary damages due to emotional suffering, violation of honor, reputation, and privacy rights in Serbia. However, the media’s financial power must be taken into consideration when imposing a fine. That penalty should not hamper the future business conduct of the company it is imposed on and must be reasonable and proportionate.
Still, a crucial question remains: how far can any type of reimbursement go towards healing emotional pain, repairing a damaged reputation, or compensating for what is often referred to as irreparable damage?
By Uros Popovic, Partner, and Tamara Momirov, Associate, Bojovic & Partners
This Article was originally published in Issue 4.3 of the CEE Legal Matters Magazine.