Reconciling privacy and speech in the era of big data: a comparative legal analysis.

• Author: Krotoszynski, Ronald J., Jr.
• Position: I. Europe and Privacy: Exploring Salient Points of Conflict with the United States C. The Scope of Privacy Rights and Mandatory Civility Norms 3. Privacy and the Potential Scope of Protected Materials b. Mandatory Civility Norms Limiting the Use of Opprobrious or Insulting Language in Public through Conclusion, with footnotes, p. 1309-1338

2. Mandatory Civility Norms Limiting the Use of Opprobrious or Insulting Language in Public

Just as the ECHR has protected the ability of individuals to protect (control) the use of their images, voice, and personal data, it also has upheld laws that protect the ways in which individuals are presented to the general public in the press. Tammer v. Estonia provides an excellent example of this principle in action. (124)

Tammer involved news stories, drawn from interviews undertaken on a voluntary basis in anticipation of publication of Vilja Laanaru's tell-all memoir. (125) However, Laanaru abandoned the project after reconciling with her lover (and later husband) Edgar Saavisar. (126) The news stories used disparaging language to describe Laanaru, (127) a person highly active in Estonian politics. (128) Without Laanaru's permission, an Estonian newspaper published excerpts from these interviews, including questions and answers that described her as an abielulohkuja (or homewrecker) and as a rongaema (poor/irresponsible parent). (129)

Neither term, in Estonian usage, is particularly blue or scatological. The word for divorce in Estonian is abielu lahutamine and abielulohkuja used literally means a person who brings about the dissolution of a marriage. (130) Estonian government websites on how to obtain a divorce use the root word repeatedly (and presumably without causing offense to those perusing the content). (131) In fact, incident to the Tammer litigation, the Estonian Supreme Court's criminal division directly acknowledged that "the words 'rongaema' and 'abielulohkuja' are not vulgar or indecent," (132) but nevertheless held that their use in referring to someone could be "considered as degrading that person's honour and dignity in an improper manner," the gravamen of a legal claim for personal insult under Estonian law. (133)

It bears noting that Ms. Laanaru was active in Estonian politics and worked as an aide for Edgar Savisaar, both during his tenure as Prime Minister of Estonia, and later, Minister of the Interior. (134) During her period of employment with Savisaar, they maintained a long-term adulterous affair. (135) Ultimately, Savisaar divorced his wife and married Laanaru---at which point Laanaru abandoned her plans to publish a tell-all memoir. (136) After Laanaru withdrew her support for the book, Ulo Russak, the journalist who was assisting Laanaru with her memoirs, decided to publish excerpts of their interviews in the daily newspaper Eesti Paevaleht. (137)

Following publication of the interview excerpts, Laanaru sued the newspaper, naming Enno Tammer, its editor, as the defendant. (138) She alleged a violation of Article 130 of the Estonian Criminal Code, which provides that "[t]he degradation of another person's honour and dignity in an improper form shall be punished with a fine or detention." (139) Essentially, Article 130 prohibits the publication of insults. Laanaru prevailed in the Estonian trial and appellate courts; the courts fined Tammer 220 kroons, or "ten times the 'daily income' rate." (140)

On appeal, the Estonian Supreme Court sustained Tammer's conviction and held that use of the disputed adjectives could support a legal claim under Article 130. (141) The court explained that "improper form as a legal category within the meaning of Article 130 of the Criminal Code does not only include the use of vulgar or indecent words, but also the use of negative and defamatory figurative expressions." (142) The Estonian Supreme Court found that Lanaaru's interest in her personal dignity outweighed a journalist's interest in using these particular words as adjectives to describe her in a news story. (143)

After losing before Estonia's domestic courts, Tammer initiated a case before the ECHR, arguing that his rights under Article 10 had been violated. (144) The ECHR easily found an abridgement of Article 10's protection of speech and press freedoms; (143) it also readily found that the burden was "prescribed by law" in Article 130 of the Estonian Criminal Code, (146) and that the law in question furthered a legitimate government purpose (namely, protection of personal honor and reputation). (147) The outcome of the case then turned on proportionality analysis--whether Article 130, as applied on the facts at bar, constituted a reasonable accommodation of speech and press rights and personal privacy.

The ECHR offered many sympathetic observations about the centrality of free expression to democratic self-government, but nevertheless sustained Tammer's conviction. (148) Even though "freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfillment," (149) and "in a democratic society" the press performs an "essential function," (150) the ECHR found that "[i]n the context of freedom of the press, the requirements of such protection have to be weighed in relation to the interest of the applicant as a journalist in imparting information and ideas on matters of public concern." (151) On the facts at issue, Tammer's newspaper published negative "value judgments" about Laanaru, using language that "was not necessary." (152) In the court's view, Tammer "could have formulated his criticism of Ms. Laanaru's actions without resorting to such insulting expressions." (153) According to the ECHR, Laanaru's "private life" was not really a matter of public concern, nor did it bear upon "a matter of general importance." (154) On these facts, "[t]he interference with [Tammer's] right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation or rights of others within the meaning of Article 10 [section] 2 of the Convention." (155)

Thus, a newspaper was not free to use words that characterize Laanaru as a home wrecker and a bad parent because these matters did not relate to her official duties with her boss, Savisaar. Nor did her status as a person active in Estonian politics make her private life a matter of public concern. Essentially, the ECHR holds that even a person holding important government positions, and active in politics, has a right to demand privacy with respect to her personal life. The imposition of a more severe punishment might have altered this legal conclusion, but the fact that Estonian law permitted the imposition of any liability (particularly when the potential maximum fine was almost three years net wages) ought to give a reasonable observer pause. One could also make the case that a high ranking government official conducting an affair with a subordinate does in fact relate to a matter of public concern, given the obvious risk that such relationships might not be entirely consensual.

In the United States, it would be unthinkable that such reporting could be made the subject of civil or criminal liability. In fact, the Supreme Court has squarely rejected the idea that mandatory civility norms may be imposed--Cohen v. California stands for the proposition that government may not attempt to control the manner in which one seeks to express an idea. (156) Moreover, Hustler Magazine, Inc., v. Falwell holds that with respect to a public figure (like Ms. Laanaru), targeted efforts to humiliate or embarrass cannot constitutionally be punished--at least in the absence of an intentional or reckless false statement of fact about the subject. (157)

In other words, in the United States, legal efforts to mandate civility are generally inconsistent with the First Amendment. (158) The Supreme Court has expressly, and repeatedly, held that the government cannot punish or restrict the use of opprobrious language even when used in public meetings or to law enforcement officers. (159) As Professor Whitman astutely notes, "To say that America has absolutely no law of civility is to say too much. But to say that in general America has no law of civility--especially as compared with a country like Germany--is to make the right generalization." (160)

The scope of protected privacy has obvious and immediate effects on the scope of speech and press rights in Europe. First, as the preceding discussion demonstrates, the scope of protected privacy interests is significantly broader in Europe than in the contemporary United States. In myriad contexts, the ECHR has found that applicants have successfully claimed a privacy interest in circumstances in which no viable privacy claim would exist under contemporary U.S. law. The broader scope of privacy rights in European jurisprudence thus creates more potential for privacy and speech to come into conflict with each other. Second, when such conflicts arise, neither right enjoys an absolute priority. Rather, the ECHR reconciles Article 8 and Article 10 claims on a case-by-case, context-specific basis in order to ascertain which right should take precedence on a given set of facts. Third, and finally, in many cases this balancing exercise has reliably favored privacy claims over speech and press rights even in cases brought by public officials, public figures, and persons involved in matters of public of public concern.

The ECHR's decisions make very plain that the press does not enjoy the freedom to decide for itself when publication of materials falling within the scope of Article 8's protection advances a sufficiently important public interest to justify intruding on the subject's privacy; although, as the next section will show, the ECHR appreciates the essential nexus between free speech and press rights and the project of democratic self-government. Indeed European judges tend to look favorably on statutes and regulations that set the metes and bounds of reasonable reportage. Only when a court concludes that a law or regulation unduly impedes the ability of the press to report on matters of public concern will free expression and freedom of the press take precedence...