EUROPE: Privacy and Free Speech

M. Patrick Yingling, Pitt Law '11, recently studied at Bucerius Law School in Hamburg, Germany, and is currently studying at the University of Bologna in Italy...



Europe and the United States share many legal principles. But they differ as regards notions of privacy and free speech. While European media outlets have been prohibited from publishing truthful information that the courts have found to be irrelevant, the American press has not faced such a restriction. This distinction has become increasingly controversial due to the internet's growing international reach. The controversy can be seen, for example, in the case of two recently released murderers in Germany who filed suit against the Wikipedia Foundation because Wikipedia refused to remove their names from an article about their victim, a former German actor. Due to the German courts' custom of suppressing the names of convicted criminals, the two men were able to convince Wikipedia's German editors to delete their names from the German-language version of the article. However, American courts interpret privacy rights differently, and it is very likely that the Wikipedia Foundation, which is based in the United States, will find safe haven under the First Amendment.

In order to effectively deal with differing notions of privacy and free speech on an international level, it is necessary to understand why these differences exist. In the case of Europe and the United States, it may seem like a simple constitutional issue. The United States Constitution protects freedom of speech without explicitly providing for a countervailing right to privacy. In contrast, the European Convention on Human Rights (ECHR), in addition to protecting freedom of speech, specifically defines a right to privacy. Nonetheless, such a simplistic explanation only scratches the surface. In order to dig deeper, one must recognize a distinction between privacy from the government as opposed to privacy between citizens. Americans typically put a high value on privacy from the government. However, privacy between citizens requires privacy rights to be balanced against the freedom of speech, and in the United States, freedom of speech is king.

Some European courts have been willing to restrict freedom of speech when such speech impedes upon privacy. In doing so, they have passed judgment on the relevance of certain information to the public. In comparison, American courts have allowed private persons to make such decisions on an individual basis. This approach is related to the popular notion of protecting the "marketplace of ideas," a concept that stems from Justice Oliver Wendell Holmes Jr.'s dissenting opinion in Abrams v. United States, in which he stated that "the best test of truth is the power of the thought to get itself accepted in the competition of the market."

Swiss law provides a clear example of the transatlantic gap between European and American concepts of privacy and free speech. The Swiss Federal Constitution provides that the ECHR supersedes Swiss federal law and that Swiss courts must therefore obey the ECHR's explicit right to a private life (Art. 8), as well as the right to freedom of expression (Art. 10). These rights are often balanced against each other, and the Swiss courts have attempted to determine the exact point where one right ends and the other begins. The Swiss case of R. AG v. W. provides a good example. In R. AG v. W., an executive convicted of white-collar crimes filed an action for invasion of privacy against a publisher who had reported truthful facts about the executive's past conviction. The court found for the plaintiff and held that such information was irrelevant and no longer of public interest.

The American case of Cox Broadcasting Corp. v. Cohn exemplifies a different approach. In Cox, a news company published the name of a deceased rape victim in the course of covering the alleged rapist's trial. Publication of the victim's name was in contravention of Georgia law, and the victim's father brought suit for invasion of privacy. The United States Supreme Court ultimately held that the Georgia statute violated the First Amendment and that the defendant news company was not liable. Rather than evaluating the published information's relevance, the court established a precedent of presuming the relevance of all such information, provided that it was a matter of public record.

Until recently, these conflicting approaches have not posed problems for international harmony. Naturally, this has changed with the emergence of the internet. Strong privacy laws, such as those existing in Europe, are in danger of being compromised by international entities like Wikipedia and Google. These companies have the ability to disperse information around the world from an American jurisdiction that places a strong emphasis on the "marketplace of ideas." The dispute between Wikipedia and the two German ex-convicts is perhaps indicative of future clashes in this area of the law.

Google has addressed these differing concepts of privacy and free speech through self-regulatory measures that block users in a particular country from accessing websites that are illegal under local law. For example, because Holocaust denial is illegal in Germany, Google's search engine for Germany, Google.de, will not locate Holocaust-denial sites. However, Google's attempts to comply with local law are not always successful. Recently, three Google executives were criminally convicted in an Italian court for hosting a video that showed an autistic teenager being bullied. The Italian court convicted the executives despite the fact that Google attempted to comply with Italian law by removing the video within two hours of being notified of its existence.

Self-enforcement measures have not yet been applied to situations in which truthful, yet arguably irrelevant, online information constitutes an invasion of privacy. Even if self-enforcement were used in this way, it would be unrealistic to expect a small group of people to effectively balance privacy and free speech concerns for the entire world. For the sake of international harmony, we can hope that companies like Google and Wikipedia are able to devise policies that maintain respect for various international interests. Unfortunately, conflicting legal traditions and values are sure to present obstacles for any entity that attempts to accommodate these differing notions of privacy and free speech.

Mentioned in this article:

European Convention on Human Rights

Federal Constitution of the Swiss Confederation

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