26 October 2022 – Online conversation
The second dissemination event organised by Associate Professor Marta Dragičević Prtenjača was held as a Zoom webinar on 26 October 2022. The webinar was organised as a part of the Central European Professors’ Network, coordinated by the University of Miskolc – Central European Academy, and gathered around thirty participants.
The opening ceremony was held by the main organizer of the webinar, Associate Professor Marta Dragičević Prtenjača from the University of Zagreb, Faculty of Law, Chair of Criminal Law. In her speech she pointed out that one of the webinar goals was to exchange opinions, knowledge, experiences and views on this omnipresent topic. Associate Professor Dragičević Prtenjača briefly introduced the debaters and welcomed other participants to the webinar. She also expressed thanks to the Central European Professors’ Network, coordinated by the University of Miskolc – Central European Academy. She concluded her introductory speech by wishing all participants a pleasant, successful, interesting and fruitful webinar and discussions.
After the opening ceremony, Associate Professor Marta Dragičević Prtenjača gave a keynote speech on the topic Legal framework for the protection of privacy in Croatia with a Special Reference to the Protection by Criminal Law. She started by emphasizing the fact that there were two key issues regarding this topic – the first was the right to privacy, and the second the right of the persons who were suspects, accused and convicted. She gave an overview of the documents protecting the right to privacy on the international level, pointing out the two main ones – The Universal Declaration of Human Rights (1948), Art. 12, and the Covenant on Civil and Political Rights (1966), Art. 17. She further presented the
Council of Europe documents – The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art. 8, and the Declaration on Mass Communication Media and Human Rights (1970), Art. 16-18, 21, and the EU documents – The Charter of Fundamental Rights of the European Union, Art. 7-10, 16, The Treaty on the Functioning of the European Union, Art. 16, The Treaty on the European Union, Art. 16, Directive 2002/58/EC, the General Data Protection Regulation (hereinafter: GDPR) and a very interesting and important document – Directive 2016/680 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and the repealing Council Framework Decision 2008/977/JHA (hereinafter: Directive 2016/680). The last mentioned document was the key document regarding the protection of the right to privacy of suspects, accused and convicted persons. Directive 2016/680 laid down the rules related to the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including safeguarding against and the prevention of threats to public security. In all other cases GDPR applied. Associate Professor Dragičević Prtenjača presented the relevant documents on the national level as well – the Croatian Constitution, OG 56/90, 135/97, 08/98, 113/00, 124/00, 28/01, 41/01, 55/01, 76/10, 85/10, 05/14; The Labour Act, OG 93/14, 127/17, 98/19, Art. 29, The Media Act, OG 59/04, 84/11, 81/13, 114/22, Art. 7 and 16; The Electronic Media Act, OG, 111/21, 114/22, Art. 24, par. 5; The Electronic Communications Act, OG, 76/22, Art. 42, 142 par. 8 al. 2; The Consumer Protection Act, OG 19/22, Art. 11, 85 par. 5 and 6; The Right to Access Information Act, OG 25/13, 85/15, 69/22, Art. 1 par. 3, Art. 15 par. 1 (criminal law and courts) and Art. 27 par. 4 (privacy), The Implementation of the General Data Protection Regulation Act, OG 42/18. She continued by giving a great overview of the ways in which other countries dealt with the question of how to report on criminal cases. She presented the work of Fullerton and Patterson, which divided the countries into four categories: watchdogs, protectors, ambivalents and weibull. Associate Professor Dragičević Prtenjača outlined the situation in the Netherlands by presenting the three-values journalist weighted when making a decision on how to report on criminal cases. She also described the four main requirements the European Court of Human Rights (herein after: ECtHR) followed when making decision related to this topic, together with some key judgments of the ECtHR. The presentation was concluded by summing up the pros and cons of the liberal and conservative way of publishing and reporting on criminal cases, along with concluding remarks.
The second part of the webinar was a roundtable. The first debater was Associate Professor Sunčana Roksandić, from the University of Zagreb, Faculty of Law, Chair of Criminal Law. She pointed out that media were obliged to respect privacy, dignity, reputation, honour of citizens, especially children, youth and families, regardless of gender and sexual orientation. It was forbidden to publish information that revealed the identity of a child, if it endangered its well-being. She gave some examples of most commonly used practices in the media in the Republic of Croatia. The media mostly focused on several topics: political, political economic and economic crimes, together with family violence (gender based), aggravated murder and juvenile violence. She also mentioned another important topic – suicide and the code of honour. Associate Professor Roksandić stated that news, when reporting about suicide and suicide attempts, should be kept to a minimum with special consideration when it came to children. She also emphasized the professional guidelines for reporting on suicides that should be followed. Additionally, she stated that the constitutional principle of the presumption of innocence of the accused and dignity, integrity and feelings of all parties to the dispute should be respected. In criminal proceedings journalists were obliged to respect the right to protect the identity of a protected witness, confidants, whistle-blowers, and injured parties, which could not be revealed without their consent, except in cases of exceptional public interest. She concluded her talk by presenting a case from her practice in which Article 145 of the Criminal Code, Unauthorized disclosure of a professional secret, was violated.
The second roundtable debater was Associate Professor Tihomir Katulić from the University of Zagreb, Faculty of Law, Chair for Information Technology, Law and Informatics. Associate Professor Katulić started his presentation by analysing a special case of balancing data protection rights vs. free speech and freedom of information in the context of data processing by competition authorities. At the beginning he gave a brief overview of the evolution of the GDPR. The GDPR was an implemental but substantial improvement of the existing data protection framework that developed in Europe for the better part of the last century. The GDPR developed from the Data Protection Directive in the 1990s, first on the national levels, then throughout the EU. It evolved from the Declaration to ensure privacy as a fundamental right. The law enforcement authorities needed to ensure that processing personal data in criminal cases fulfilled all law requirements. Directive 2016/680, also called the Law Enforcement Directive, tried to ensure that the principles of data protection were upheld by competent authorities while conducting proceedings, investigations, and the prevention of criminal offences. The main issue Directive 2016/680 dealt with was the problem of data processing conducted by law enforcement authorities in criminal cases. There was a long way to go before it could be said that our law enforcement authorities understood the principles of data protection and managed personal data in their processing according to the principles of Directive 2016/680.
The last debater was Associate Professor Đorđe Gardašević from the University of Zagreb, Faculty of Law, Chair of Constitutional Law. He pointed out that the crucial principle of constitutional law concerning privacy and any type of fundamental rights was the principle of proportionality and everything that goes with it. Associate Professor Gardašević noted that there were two main points: one was the freedom of expression and the other the concept of privacy. As we all know, in constitutional law different rights and public interest were in conflict and in the relationship of contra balance. Art. 16 of the Constitution provided different elements, worked out through the Constitutional Court practice, meaning that there had to be a rational relationship between restrictions and rights, that a proof had to exist, that the least intrusive measure that violated the right to privacy and the proportionality stricto sensu had to be used. Both privacy and the freedom of expression were not absolute rights, meaning that they were subject to the restrictions and criteria mentioned before. One of the absolute rights was the freedom of thought. The concept of freedom of expression was interpreted differently depending on who we were talking about – the privacy of private persons was better protected than the privacy of public officials. Associate Professor Gardašević confirmed what Associate Professor Dragičević Prtenjača stated in her presentation, that privacy was a fluid concept which did not necessarily depend on a unique definition within a specific legal act or a legal document. Privacy was a combination of different rights and it was connected to such constitutional values or explicit rights such as human dignity, the right to free development of personality, the freedom of conscience and religion, the freedom of communication, the
right to the protection of personal data, etc. Associate Professor Gardašević mentioned a US landmark case from the year 1973, Roe v Wade, which illustrated how privacy could be construed. Associate Professor Gardašević is inspired by the practice of the German Constitutional Court, because it is a well-known constitutional court in Europe. Therefore, he presented how German constitutional jurisprudence was developing regarding this topic. In the past the Croatian Constitutional Court had already shown its willingness to adopt the legal standards set by the German Constitutional Court and maybe it would do the same in this case. The Federal Republic of Germany differentiated between several categories of norms which defined privacy. Explicit norms were rare, such as Art. 10 of the German Constitution, which guaranteed the secrecy of communication, and Art. 13 of the German Constitution, which guaranteed inviolability of home. A general right to privacy did not exist in Germany. However, the German Constitutional Court had developed implicit constitutional norms for the protection of privacy (general inspiration could be found in Art. 1, which guaranteed human dignity). The most interesting part of the German Constitutional jurisprudence was the concept of three different levels of privacy. The first level of privacy was intimacy, the most protected core of somebody’s personality, which should not be intruded (health, the question of sexuality…). The second level of privacy was the sphere of personal privacy, where the principal of proportionality was strictly applied. The third level was the sphere of privacy in a public place (public persons outside their private space). Associate Professor Gardašević mentioned the German ‘hashish drug case’ from 1994, in which the German Constitutional Court said there was no analogy with alcohol. However, the Court applied the principal of proportionality and said that in case of a small amount of soft drugs, and when a third person was not put in danger, it should be decriminalized. In the ‘Census Act case’ from 1983 the Court noted for the first time that modern development of technology and automatic data processing should be considered when talking about the right to privacy. Through time and depending on circumstances the right to privacy adapted, e.g. it was more strict, if there was a terrorism threat. The Court set some standards regarding the surveillance of communication and allowed it only if there was a consent of the surveilled. However, there was a complete ban on surveillance, if the context was not criminal (for lesser offences excluded). In 1995 the ‘GPS case’ was prescribed as a measure for suspects in terrorism cases. Using GPS was a measure which was unexpected and allowed the creation of a complete profile of a person. It could be used only in exceptional cases. The ‘data mining case’ from the year 2006 revoked the authority of the local police to use data fishing.
The webinar was concluded with final remarks. The participants were very satisfied with the webinar which provided answers to some open questions and gave a better overview of privacy and how to report on criminal cases.
Associate Professor Marta Dragičević Prtenjača
