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European IP Bulletin, Issue 2, June -
Hot Topics
Hot Topics
Privacy and Personality, Politicians and Stars
An article by Rohan Massey and Kathrin Tauber
One could be forgiven for thinking that the sanctity of marriage is one of the few things chancellor Gerhard Schröder of Germany and the Hollywood A-list couple Michael Douglas and Catherine Zeta-Jones have in common, however, the recent cases that they have brought in Germany and the UK, respectively, highlight the approaches being taken in Europe towards the individual’s right to protect their privacy from unwanted media attention.
Germany and the UK have historically taken different paths on the development legal rights to protect individuals. Germany has followed the US approach of adopting a statutory personality right. The UK, on the other hand, has not legislated on privacy or personality instead it has seen the judicial development of the laws of confidence and data protection.
The current legal dilemma surrounding the issue of privacy in Europe has arisen because actions being brought in the courts of EU member states must be considered in light of the European Convention on Human Rights. In actions regarding an individual’s privacy there is often a need to balance Article 8 of the European Convention on Human Rights, which grants the right to respect for private and family life, and Article 10, which grants the right to freedom of expression.
Personality Right?
In Germany the personality right is a statutory right granted in section 1 para. 1 and section 2 para. 1 of the German Constitution (Grundgesetz). The German right is a broad one, granting the individual the right to control the development and exploitation of his own personality, with different levels of protection being given to the individual, private and intimate aspects of a person’s life. Any illegal interference with the personality right entitles the individual to seek compensation and, where necessary, an injunction according to sections 823 and 1004 of the German Civil Code (Bürgerliches Gesetzbuch).
For a claim of infringement of the personality right to be successful there has to be comprehensive consideration of the parties’ affected interests. This is achieved by comparing the constitutionally guaranteed freedom of speech and the personality right of the offended. This balance is weighed on the facts of the case. It should be noted that the balance is subjective with the German courts generally lowering the threshold of protection from media intrusion granted to individuals in the public eye. This subjective determination of protection does not signify a wholesale removal of public figure’s right to privacy, merely a limitation of it.
Chancellor Gerhard Schröder recently took advantage of the personality right by bringing an action in the Lower Regional Court of Düsseldorf against a newspaper that had published an article reporting rumors relating to the state of the Chancellor’s marriage. The newspaper made clear that it was not reporting a factual story on the state of the Chancellor’s marriage, but merely that rumours were circulating in Germany that the Schröders had apparently been involved in a public fight and that the Chancellor had spent several nights away from his home in Hannover.
The court balanced the arguments of the information being of public interest, as argued by the newspaper, against the personal interests of the Chancellor. Based on the facts of the case, and as the newspaper was not holding the story out as fact but reporting rumour, it was held that the Chancellor’s private life was of public interest. In particular the court recognized the fact that media reporting prior to this case did not include specific private details about the Chancellor’s marriage disputes. Such information would have been important in this case, as Chancellor Schröder campaigned by promoting his family life during the 2002 election. The court held that the press was allowed to report on the Chancellor’s family life to the extent that it was made public, i.e., that he was married, though the press did not have the right to report on intimate details or specific details of his marriage that Chancellor Schröder had not previously made public.
Confidence in the UK?
As there is no statutory protection of privacy in the UK the recent case brought by Catherine Zeta-Jones and Michael Douglas has been seen as something of a watershed between the current system of trying to protect privacy using a combination of the common law of confidence and a combination of other legislation, such as the Data Protection Act, and the introduction of a statutory right to privacy similar to that in Germany.
The November 2000 wedding of Catherine Zeta-Jones and Michael Douglas, which was a closely guarded and nominally private affair, was billed as the event of the year and the couple arranged a £1 million deal with OK! magazine for exclusive rights to publish pictures of the wedding. Hello! magazine, a rival of OK!’s, managed to obtain and publish unauthorised photographs of the couple‘s wedding prior to the publication of Hello!’s exclusive.
The Douglases were both furious and upset feeling that their privacy had been breached. The action they brought against Hello! was based on the fact that despite commercialising the wedding by selling their photos they had taken extreme and expensive measures to ensure that the wedding itself and the photographs of it were private.
Initially the case appeared to favour the pro-privacy law lobby as the Douglases were granted an injunction against Hello! to prevent it publishing the unauthorised photographs. Then, the court of appeal overturned the injunction. Sedley L J alluded to the point that as Parliament had not introduced a law of privacy in light of the coming into force of the Human Rights Act, and need to do so. Almost three years on from the injunction being overturned Parliament has failed to act upon the Sedly L J’s comments and it fell to Mr Justice Lindsay in the High Court to rule on the matter.
At trial, the High Court found in favour of the Douglases. However, the judgment was not based on a law of privacy but, based on the specific facts of the case, by relying on long established principles of the law of confidence. In being able to grant rights to publish pictures, the Douglases had a commodity, the value of which depended upon it being kept secret and then made public in a controlled way. Any unauthorised publication would be a breach of commercial confidence. Put simply, all photographs of the wedding were deemed to be confidential information. The unauthorised photographs of the wedding were a disclosure of information that was protected by confidence and the publication by Hello! of the unauthorised photographs was a breach of confidence.
Unfortunately for the pro-privacy law lobby the judgment avoided creating a law of privacy, as the judge felt that the arguments for the existence of a free-standing right of privacy had not been made. The justification for such a right depends, arguably, on English law being so inadequate that individual rights to private and family life are not properly protected. In this case such an inadequacy could not be demonstrated, and the common law breach of confidence was sufficient to both protect the Douglases and to provide them with adequate remedy.
However, the judiciary again commented on the need for Parliament to determine the ramifications of recognising a wide right of privacy and legislate accordingly, adding that if Parliament could not, or would not, act on the issue of a law of privacy then in future cases where the facts do not allow for determination under the laws of confidence, or other ill-suited legislation, then the judiciary may be forced to so.
Despite Germany having a statutory law of privacy and the UK relying on the common law the results of the recent cases detailed above mirror each other. The issue now in the UK is whether Parliament will follow Germany’s lead and legislate on privacy before an individual brings a successful claim for breach of privacy which does not fall within the current definitions of breach of confidence thereby forcing the judiciary to create a new law of privacy.
Data Protection – California’s Long Arm of the Law gets Longer
An article by Rohan Massey
Early this year Derek Bond really did have a holiday from hell. In February 2003 the 72 year old British tourist was arrested, and held in a South African police cell, on the orders of the FBI who believed him to be a fraudster operating out of Las Vegas. In fact the alleged fraudster in Las Vegas was Derek Sykes. The two men’s names are not similar, nor are their faces, so how did the FBI make such an obvious mistake? Electronic identity theft.In 2000 the Los Angeles County Sheriff's Department handled 1,932 cases of identity theft. This represented a 108 % increase over the previous year's caseload. The reason for this increase can be attributed to the fact that personal data identifying individuals is now, more of than not, given and stored electronically. From surfing the web or using the cash point to borrowing library books and paying taxes individuals are continually providing their personal information to third parties. This information is then processed and stored electronically. The electronic storage of personal information is a boon for criminals who steal personal information such as social security numbers and use the information to open credit card accounts, write fraudulent cheques, buy consumer goods, and commit other financial crimes using other peoples’ identities. In order to limit the potential for identity theft and to alert individual’s to security breaches that may affect them the State of California has passed an amendment to its Civil Code that comes into effect on 1 July 2003. Under the new law, SB 1836, state agencies, businesses and individuals that own or license electronic personal data regarding any resident of California have a duty, in certain circumstances to disclose in a breach of the security of the data. The reach of the amendment is global affecting any company whether or not it is based in California. However, there are certain criteria that must be met before the obligation to notify arises. The criteria are that the security breach must involve the personal information of a resident of California, i.e., their first name or initial and surname, and one or more of the following pieces of data:
- social security number;
- driver's license number or California Identification Card number;
- an account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account.
If the above criteria are met the notification requirements will only be triggered in situations in which either the name or the additional data elements are not encrypted. Where necessary notification to the affected customers must be made in as soon as possible and without unreasonable delay. Notification must be made to the individual and may be made either in writing or electronically, subject to the individual being given the information required under the federal Electronic Signatures in Global and National Commerce Act of 2000 and expressly consenting to the use of electronic notices. There is a derogation from the requirement to notify each individual where either the cost of providing the requisite notice would exceed $250,000, or the number of people to be notified exceeds 500,000. In instances where the notifying party does not have sufficient contact information for the individual it may provide substitute notice. Substitute notice requires all of the following:
- an e-mail notice to be sent, (if e-mail addresses are available);
- a notice to be posted on the notifying party's web site; and
- notification to major statewide Californian media.
Failure by any party to comply with SB 1836 gives the affected individuals grounds for civil actions to recover damages.
The eEurope 2002 Final Report
This is a Communication from the Commission to the Council, the European Parliament, the Economic And Social Committee and the Committee of the Regions (COM(2003) 66 final).
The eEurope 2002 Action Plan (endorsed as part of the Lisbon strategy) was a programme intended to lay a solid foundation for a competitive knowledge - based economy within the EU. It incorporated regular monitoring and benchmarking practice and, according to the report, has been a great success. Three key areas were identified:
- growth of internet connectivity to provide infrastructure
- a suitable legislative framework
- enhancing the effective use of the internet by adopting new technologies, in particular broadband connection
As Internet connectivity is the basis of the rapid growth of the information society, the Plan adopted various strategies to increase infrastructure such as financial priority, ICT skills training and support for alternative networks to improve competition and lower access costs. GEANT, a new network connecting over 300 research institutions across 32 countries is one example. The different level of connection across the EU and within sectors, especially within households and SMEs, is the gap necessary to be closed in the future while upgrading national networks.
A regulatory framework was deemed to be the tool necessary to improve internet penetration by reinforcing and strengthening competition, lowering price, stimulating innovation and ensuring consumer’s benefit. Six Directives and one commission decision1 were proposed to be transposed by 25 of July 2003 in relation to the electronic communication network. These regulations adopted a technologically-neutral approach which applied homogeneously to all transmission infrastructures, regardless of their content service. Thus, the regulations take the role of fixing access obligations, promoting transparency, ensuring non-discrimination and generating balance between market adaptation and legal certainty.
With regard to E-commerce, the Directives on electronic commerce, electronic signatures and Copyright and Related Rights in the Information Society assist in promoting certainty in transactions and consumer protection. In addition, there is encouragement for non-legislative self-regulatory initiatives such as standard for "trustmarks" and "GBDe" that promote good online practice and consumer confidence.
With respect to increasing effective use of the internet, ensuring participation of the whole of society to bring benefit to social life and work, the Plan is engaged in meeting relevant targets such as skills, training, public internet access and flexibility in the workplace. This will enable the carrying out of E-government, use of the internet in schools, health online, E-commerce in particular Business-to-Consumer electronic-trade and the creation of a more secure internet.
Continuous progress is needed, because the goals of the plan are still some way away. A focus on modernising public services, further promotion for E-business and secured broadband information structure in a new Action Plan 2005 is aimed to create an inclusive information society for all of Europe’s citizens.
i)Directive 2002/21/EC of the
European Parliament and of the Council on a common regulatory framework for electronic
communications networks and services.
ii)Directive 2002/20/EC of the European Parliament and of the Council on the authorization
for electronic communications networks and services.
iii)Directive 2002/19/EC of the European Parliament and of the Council on access to and
interconnection of electronic communications networks and services.
iv)Directive 2002/22/EC of the European Parliament and of the Council on universal service
and users’ rights relating to electronic communications networks and services.
v)Directive 2002/58/EC of the European Parliament and of the Council concerning the
processing of personal data and the protection of privacy in the electronic communications
sector.
vi)Directive 2002/77/EC on competition in the markets for electronic communications
networks and services.
vii)Radio Spectrum Decision 676/2002/EC.
Amendments to the proposed European Directive on Re-use & commercial exploitation of public sector information
The draft directive on re-use and commercial exploitation of public sector information (2002/0123(COD)) has re-emerged with a number of amendments that have been suggested by the European Parliament. A number of proposed amendments have been accepted and a number accepted in part or in principle.
Public sector information is information produced by national governments in the exercise of a variety of duties. Examples of public sector information include traffic information, geographical information, business indicators and metrological information. The information produced by public sector bodies operating in such areas is an important economic asset and is used as raw material in a variety of industries.
National rules regarding the use of public sector information vary widely throughout the European Union. In line with the principle of harmonisation, the European Commission last year proposed a Directive (2002/0123(COD)) with the aim of establishing a cross-border European framework to add certainty to activities involving the use and exploitation of public sector information.
The draft directive has re-emerged with a number of amendments suggested by the European Parliament. A number of these have been accepted and a number accepted in part or in principle.
Those amendments of substantive importance accepted completely by the Commission include Amendment 14, whereby trade or business secrets are to be outside the scope of the directive, and Amendment 24 suggesting that a right be made available to applicants requesting use of public sector information so that they can request a review of charges, where charges are felt to exceed those allowed under the directive.
The Commission has accepted other substantive amendments only in part or in principle. Amendment 31 establishes an obligation on Member States to make available main content assets by public sector bodies; the Commission in addition felt that such lists should be made available at no charge. Amendment 21 establishes an obligation on public sector bodies to provide information on third party right-holders, where it has such information; the Commission did not, however, accept a recommendation from the Parliament that liability be placed on public sector bodies where wrong references are given in cases involving bad faith.
Other amendments accepted in part or in principle include Amendment 20, establishing a requirement on public sector bodies to consider the purpose of re-use when establishing a timeframe for replying to requests for information, and Amendment 18, regarding the making available of information in formats not dependant on specific software.
The Civil Procedure (Amendment No. 2) Rules 2002 (SI 2002/3219 (L.18))
An Amendment to the Civil Procedure Rules 1998 has come into force on the 1 April 2003 providing a new Part 63 to the Civil Procedure Rules 2002 that will govern procedures related to intellectual property rights.The new rules will affect mainly registered intellectual property rights: patents, registered designs and registered trademarks. Regarding patents and registered designs, the rules govern (inter alia):
- The specialist list;
- The start of the claim;
- The defence and reply;
- Case Management;
- disclosure and inspection;
- challenges to validity; and
- applications to amend a patent specification.
Concerning registered trade marks and other intellectual property rights, the new rules affect (inter alia):
- allocation;
- claims under the Trade Marks Act 1994; and
- claims for infringement of a registered trade mark.
Part 52 will continue to apply to all appeals.
Finally, on 3 March 2003, Jacob J (the Senior Patents Court Judge) issued a Patents Court Guide. It applies to all patent proceedings and is in line with the new Civil Procedure Rules and Practice Direction. It will be effective in both the Patents Court and the Patents County Court from 1 April 2003.
Cream Holdings Ltd v Banerjee & the Liverpool Daily Post & Echo [2003] EWCA Civ 103
This case centres on Section 12(3) of the Human Rights Act 1998, which provides that no relief is to be granted to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. The question was whether the word ‘likely’ here means ‘more likely than not’ or something less. The claimant comprised a group of companies referred to as Cream. The first appellant Ms B was an ex-employee of Cream who, after unfair dismissal, breached confidentiality and supplied a newspaper, Echo, with evidence to suggest corruption by one of her former employers. Echo firstly informed the police and then published this information. However in a letter to Cream, Echo made further allegations based on documents given to them by Ms B. Cream was granted injunctive relief by the High Court to prevent publication of the further confidential information. The injunction was appealed.
The appellants argued that the test applied by the judge should have been the more stringent requirement on the balance of probability, rather than the test of ‘a real prospect of success’ which is little more than the American Cyanamid test [1975] AC 396. They emphasised the intention of parliament to strengthen the law against prior restraint and the European Courts in the ‘Spycatcher’ case: Observer & Guardian v UK [1991] 14 EHRR 153 at 191.
The appeal (heard by Lords Justices Simon Brown and Sedley and Lady Justice Arden) was dismissed on the grounds that the appropriate test of ‘a real prospect of success’ used by the Courts was justified by the admittance of a breach of confidence. Section 12(3) should always be applied compatibly with competing human rights (Douglas v Hello! [2001] QB 967 at para 149). It was pointed out that in contrast to the American Cyanamid approach, where the courts do not have to address difficult issues of law to gauge the merits of the case, Section 12(3) requires the merits of the case to be considered in order to judge the prospects of their eventual success.
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