16 May 2022 – Online conversation
The Eötvös József Research Centre of the Eötvös József Research Centre for Information Society at the National University of Public Service (NKE) organised a professional forum under the above title on 16 May 2022. The online event was moderated by Zsolt Ződi, Senior Research Fellow of the Institute, and András Koltay, President of the National Media and Infocommunications Authority, former Rector and Research Professor of the NKE. Attila Menyhárd, Research Professor at the Research Centre and Bernát Török, Associate Professor and Head of the Research Centre, contributed as invited speakers.
András Koltay informed the participants that his thesis was written in the framework of the Central European Academy programme of the University of Miskolc. Researchers from many countries of the region are represented in the project, each of them reporting on their own national legislation.
Privacy is a challenging area from a legal point of view and one that is also attracting media attention. The disclosure of identity, through images and audio, is also a sensitive issue, for example in relation to accident victims. This can legally take place in two cases: in a crowd or in the case of a public event recorded by the media. András Koltay presented some cases illustrating the complexity of these legal areas. One of these was the case of a political consultant on holiday in a night club in 2017, who was later published for marketing purposes. Or another case of a politician under criminal investigation, where the story and the presentation of the culprit, without prejudice to his dignity, proved to be in the public interest. Overall, the research shows that more and more important results are being achieved in the previously unknown legal area of privacy.
He argued that the protection of privacy represents a major challenge for legal systems, especially in the light of the proliferation of new technologies for monitoring and recording individuals, with a public increasingly hungry for news and confidential information. The balance between the protection of privacy and the rights and interests of the public (freedom of speech, freedom of the press, the interest in being informed on public issues, freedom of information) is difficult to strike and necessarily remains fragile. Koltay’s paper examines the Hungarian legal system, both in terms of regulation and practice, primarily from the point of view of how to define this particular balance between privacy and the right to freedom of expression. After offering a general overview of the arising issues, the provisions of the Fundamental Law are examined, followed by a discussion of the issues arising in the area of private law, while it also provides an overview of the protection of privacy in criminal law. The paper then goes on to cover data protection and administrative procedures before attempting to draw general conclusions.
Privacy, according to Robert Post, is one of the social norms that ensure the existence of the individual and also the survival of the community, which is made up of autonomous individuals. Fortunately, one might say, the instruments available to the law are incapable of providing a satisfactory answer to all the questions that arise in the context of private life. In the modern era, the value of the protection of privacy gradually gained recognition. In the early nineteenth century, Benjamin Constant disapprovingly claimed in his 1819 essay, The Liberty of Ancients Compared with that of Moderns, that the private sphere of the modern man was better protected than ever before, but that in the meantime he is deprived of the possibility of participating in making decisions on the affairs of the community.
Privacy is usually understood in different legal systems to include various partial rights, themselves sometimes named and sometimes unnamed in statutes. The U.S. view of privacy also considers certain elements of the right to self-determination to be relevant to privacy, such as the right to control one’s own body (and deriving from this, for example, the right to abortion), while the case law of the European Court of Human Rights (ECtHR) applies Article 8 of the European Convention on Human Rights in a general civil liberty sense. In the following analysis, I shall limit the discussion to problems related to potential clashes between the private sphere and the rights to freedom of speech and freedom of the press.
As Elemér P. Balás, the first Hungarian theoretician of personality rights, put it, the law ʻrespects the right to disgust from the public’. The starting point in the legal history of this issue is Samuel Warren and Louis Brandeis’s classic study The Right to Privacy published in the Harvard Law Review in 1890, which explicitly stated the need for ʻthe right to be left alone’ in the face of the tabloid press, which was already a growing problem in their day. According to the authors of the article, the insatiable appetite of the press for new sensations and ʻrumours’, and the development of photographic techniques was endangering, to an unprecedented degree, the sovereign, inner world of the individual and its untouchability.
The current state of the information society poses greater threats to privacy than ever before, due to the technological advances that shaped it. The best-known literary depiction of the violation of privacy – and of the way it leads to the dehumanisation of society – is undoubtedly George Orwell’s Nineteen Eighty-Four. Banned for decades in the eastern part of a divided Europe, the book is now read as a universal warning, not just as an indictment of totalitarian dictatorships. At the same time, the state’s role as Big Brother has been joined by a number of ʻLittle Brothers’, concentrations of power which, despite having different interests, have also become enemies of privacy. They typically accumulate data on citizens for business purposes, to categorise them and find out about their shopping habits and even which books they read.
The freedom of speech is, of course, protected to a certain extent, even if its exercise involves indulging in private pursuits, disclosing secrets, or taking pictures without consent. Concerning matters of public interest, the extent of the protection of privacy is more limited. Moreover, libellous statements are more tolerated if they are made in relation to matters of public interest. However, the category of matters of public interest should be construed in a limited sense: Not all matters in which the public may be ʻinterested’ are regarded as matters of ʻpublic interest’.
The privacy of politicians and of the representatives of state power is also protected, just as that of ordinary citizens. However, which events or pieces of information relate to carrying out the public function of such persons, and therefore may be disclosed to the public is – and indeed, should be – open to debate. The extended scope of the freedom of press as it applies to celebrities and the infringement of the privacy of celebrities is also subject to discussion. Similarly to persons exercising state powers, the starting point here is that even the most exposed celebrities have a certain private sphere that should be protected, the infringement of which is not justified by any public interest consideration. However, and unlike for persons exercising real powers, instances of matters falling within the privacy of celebrities that are relevant for deciding on public matters seldom arise. Liability for infringements of the privacy of celebrities is shared, at least between the press and the celebrity trying to protect their privacy. On the one hand, celebrities seek publicity, thrive on it, and ultimately make their fortune by appearing publicly. On the other hand, ʻstars’ enjoy publicity only as long as they can benefit from it; a time may come when celebrities wish to withdraw to their autonomous private sphere.
The various aspects of protecting privacy against the freedom of speech and the freedom of the press may be hard to fit into clear-cut and well-defined legal categories, such as libel or defamation. One may consider the right to privacy to be the equivalent of a general personality right, or the general clause of personality rights. It would be hard to draw up any exhaustive list of the various facts that can be relied upon to define an abstract set of circumstances covering all possible cases where there are conflicts between the freedom of speech and the right to privacy. According to William Prosser’s categorisation, which has come to be regarded as a classic, the different types of the privacy tort are as follows:
- invasion of privacy – the activity of obtaining confidential information;
- publishing embarrassing, private (true) information;
- misrepresenting a person by publishing facts that are true or even false but not defamatory;
- unauthorised use of a person’s name or image for commercial purposes.
To this can be added another type, covering cases of unauthorised disclosure of identity for which, while they might be included in the ’publication of embarrassing information’ above, separate treatment is justified, mainly because of the different nature of applicable regulations.
Attila Menyhárd added that privacy can be seen as a value and a right to be protected. The continental legal system focuses on human dignity, while overseas it is seen more in terms of freedom. On the issue of human dignity, Bernát Török said that it is the most important value in European constitutional law, but it is also a very complex area. From a legal point of view, it is an important professional issue to clarify which of the various aspects and functions of human dignity we are talking about, and the current developments in the field of privacy protection include the rise of a more technical approach to data protection than dignity-based violations.
According to the conclusions of the event, privacy protection in the Hungarian legal system is implemented in a comprehensive way. In addition to constitutional protection, privacy is specifically protected by many areas of law and also by the rules governing the different types of legal proceedings. The most important of these are private law, criminal law and data protection. Ensuring freedom of expression is also a priority, and its constitutional protection must be taken into account when applying the rules in all areas of the law. Beyond the rules of law, case law also plays a decisive role, as the case law of the Kúria and the CC helps to find the appropriate balance between the conflicting rights. In this respect, the Hungarian legal system has come a long way since the democratic transformation of 1989/90, and has successfully fulfilled this task, while facing the new challenges posed by the proliferation of new technologies.
