Tag Archive: Right of Privacy

The EU, Google, and Personal Data Protections

The European Union (EU) has expressed concerns over Google’s privacy policies. Google is a global technology company focused on online products and services, notably internet search and email services, advertising, and software technologies. On October 16, 2012, the data collection authorities for all 27 EU Member States signed a letter that was sent to Google addressing the EU’s privacy concerns. In short, the EU’s concern is that Google may be collecting too much information on users and keeping the information stored on its system for too long. The EU letter claims that Google has not “endorse[d] the key data protection principles of purpose limitation, data quality, data minimisation, proportionality and right to object.” The increased worry over Google’s policies was sparked by Google’s new privacy policy which allows the company to combine data collected from its internet-related services such as YouTube and Gmail. This data collection enables Google to improve its advertising efforts by targeting users based on specific interests and browsing history.

In order to better understand the quarrel between Google and the EU, it is important to discuss briefly EU law regarding data collection. Article 7 of the EU Charter of Fundamental Rights guarantees the right to respect for one’s private and family life, home, and communications. More specifically, Article 8 provides explicit protection of the right to the protection of personal data. Article 8 specifically includes the “right of access to data which has been collected concerning him or her, and the right to have it rectified.” The right to data protection is also enshrined in Article 16(1) of the Treaty on the Functioning of the European Union (TFEU). In 1995, the EU adopted the Data Protection Directive (95/46/EC).  The Data Protection Directive’s Article 29 created the “Working party on the Protection of Individuals with regard to the Processing of Personal Data.” The Article 29 Working Party has broad powers over data protection in the EU. Data protections were reinforced by the E-Privacy Directive (2002/58/EC). In January 2012, the Commission proposed a comprehensive reform of the EU legal framework on the protection of personal data. The 2012 proposals seek to enhance users’ control of their data and account for changes in technology.  In February 2012, Viviane Reding, the EU justice commissioner, stressed that European authorities need to ensure that Google’s new privacy policy complies with EU law.

The EU’s latest row with Google raises an interesting test regarding the future of European data protection. Specifically, the EU regulators want Google to (1) clarify its privacy policies; (2) get express permission from individual users to use and collect their data; (3) make it easier for users to opt out of certain requirements; and (4) publish how it uses and processes personal data. Google has four months to comply. If Google does not sufficiently comply with the EU’s requests, the EU regulators will consider disciplinary measures such as fines. Google has not responded at this time. However, Peter Fleischer, Google’s global privacy counsel, said, “Our new privacy policy demonstrates our long-standing commitment to protecting our users’ information and creating great products. We are confident that our privacy notices respect European law.”

Google has certainly faced its fair share of privacy complaints in EU countries in the past. In 2010, EU regulators demanded that Google warn people before taking pictures for Google’s Street View service. Furthermore, the EU demanded that Google shorten the amount of time the pictures were kept on the company’s system. In 2011, Spanish data protection authorities demanded that Google remove links to online news articles which infringed on the privacy of Spanish citizens.

At the end of the day, the latest dispute between Google and the EU underscores the difficulty in harmonizing EU data protection laws and maintaining the health of the global internet-based economy. On one hand, Google wants highly targeted advertising because advertising is the chief revenue source for the company. On the other hand, European countries want to ensure that EU users’ data is protected and that Google complies with EU law. The outcome of this row will likely have long-term implications for many other companies such as Facebook which rely on Europe’s significant market of 500 million citizens.

Stop the Presses…or Not: Scandal Gives Rise to Competing Legal Interests

Courts often engage in the practice of balancing the interests of an individual’s right to privacy with the right of the press to disseminate what may be newsworthy information about that individual, particularly when publicizing information pertaining to a public official.  In the second season premiere of the ABC’s hit television show Scandal, a Rhode Island congressman by the name of Jacob Shaw was changing the batteries to his desktop clock in his office when he discovered a hidden motion-activated camera.  The video contained footage of the congressman engaging in sexual activity.  The video footage was obtained unlawfully by an unknown source and subsequently leaked to a right wing website that planned on releasing the sex tape on the internet.   An effort to get an injunction to stop the release of the sex tape failed even though the congressman believed that allowing the release of this video footage violated his right to privacy.  Thus the issue at bar is why a court would refuse to grant an injunction thus allowing a media entity to release unlawfully acquired video footage of a public official’s private sexual conduct in the privacy of his own office.

The United States Supreme Court noted in Bantam Books, Inc. v. Sullivan that any prior restraint on speech, such as an injunction, bears a heavy presumption against its constitutional validity.  Thus an individual seeking a court injunction enjoining speech carries a heavy burden of showing justification for imposition of such restraint in addition to a showing that the individual will suffer irreparable harm if the injunction is denied.  Although public officials have a diminished expectation of privacy as it relates to matters of public concern, it surely could be argued there is justification for a court to enjoin the release, by the media, of an unlawfully obtained sex tape recorded in a place where one has a reasonable expectation of privacy and that a public official’s sex life is not a matter of public concern.  Thus, congressman Shaw could bring a cause of action for intrusion, one of the four tort elements under a breach of the right of privacy, where he could show that he had a reasonable expectation of privacy that was breached in a manner that is highly offensive to any reasonable person.  The problem Shaw faces is that the media entity planning the release the video footage took no part in any breach of his privacy.

It has been well established by the United States Supreme Court that the press has freedom to expose and criticize information regarding public officials as it relates to matters of public concern.  Thus the other side of the argument is that the private lives of public officials are indeed matters of public concern if citizens are to entrust them in running their government.  The effect of the media entity not having any part in the illegal conduct as it pertains to its acquisition of the tape is illustrated in Bartnicki v. Vopper, where the United States Supreme Court noted its consistency in holding that where a media defendant “lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need … of the highest order.”  In Bartnicki, conversations between a teacher’s union and local school board attempting to negotiate contracts was intercepted by an unknown source.  The recorded conversation was leaked to a radio host who aired the tape on his radio show.  Even though the conversation had been illegally intercepted, and the radio host had knowledge the tape was a product of illegal conduct prior to airing it, the Court held a stranger’s illegal conduct does not remove the First Amendment shield from speech about a matter of public concern.  Where a media entity has taken no part in the illegal conduct used to obtain the information it seeks to disseminate a court will not grant an injunction, particularly where the information pertains to a public official on matters of legitimate public concern.

Thus it appears that even though congressman Shaw’s sex life was a private matter to him, this fact was not enough of a justification for the court to restrain the right of the press to disseminate information it obtained through no illegal conduct on its part as it pertains to the congressman’s conduct due to his status as a public official, and the implications this status has on what parts of his life are now a matter of public concern.

Turkish Court Brings Charges Against Sarah Ferguson Over Documentary

A Turkish court has charged Sarah Ferguson, the former wife of the Duke of York, of “going against the law and violating the privacy” of children resident in orphanages in Turkey when she went undercover to gather information on the conditions in those orphanages for a documentary to be broadcast on ITV.  The program, Duchess and Daughters: Their Secret Mission, was broadcast in 2008, and caused a headache for Turkey because the country is applying for admission for the European Union. Should the Duchess be convicted, she could be sentenced to more than 22 years in prison. The court has asked the British government for assistance in extraditing her, but sources in the British government said the request is unlikely to be granted, because her activities were not illegal under British law.

Remaining unexplained is why the Turkish court has waited three years to bring charges. The Duchess also visited Romanian orphanages for the program. She has said that her reasons for assisting in the making of the documentary were humanitarian. She has apologized for any embarrassment the program may have caused the Turkish government.

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