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Access to Information of Public Interest related to Public Figures: Practical Aspects
Wednesday, 12 September 2012 07:57

sms informing

The issue of openness of information about public persons and their families on matters of public interest is rather ambiguous in the legal practice in Ukraine.

In our opinion , the problem of access to information about public persons exist because of failure to understand the balance between the right defined in the article 8 (the right to respect for private and family life ) and the right defined in the article 10 (the right to freedom of expression in terms of the right to disclosure ) of the European Convention on Human Rights .

This material is based on the recent example of prosecutor’s protection of the right to privacy of correspondence and right to respect for private and family life of one of the political figures of Ukraine – National Deputy of the Parliament of Ukraine.

On July 18, 2012 prosecutor’s office of one of Kiev’s districts opened a criminal case on the criminal offense under part 2 of the article 163 and part 2 of the art icle 182 of the Criminal Code of Ukraine ( violation of privacy of correspondence and illegal collecting, using or disclosure of confidential information about individuals , that caused significant damage to legitimate rights, freedoms and interests of a person ).

The reason for a criminal case was the claim of the National Deputy of Ukraine about the violation of his personal rights, guaranteed by the Constitution of Ukraine, because on November 17, 2011 his private telephone sms-correspondence, that took place in the Verkhovna Rada of Ukraine, was recorded and distributed in the Internet resource of informative portal LB.ua .

However , on August 03, 2012, because of considerable public resonance , the Prosecutor's Office in Kyiv decided to terminate the case. . According to the official report of the Prosecutor's Office , this decision was made because of inconsistency of the position of the applicant, who has made contradictory statements in press , and also because the violation of law on the part of the Internet publication in this particular situation did not cause significant damage.

So as we can see, prosecutor closed the criminal case due to lack of socially dangerous consequences of the act - because of no significant damage.

Indeed , the right to respect for private and family life is one of the fundamental human rights, which is envisaged by the article 8 of the European Convention on Human Rights . The right to privacy of correspondence and the right to private life and family matters are guaranteed by the Constitution of Ukraine (the article 31 and the article 32).

The Constitutional Court of Ukraine in a case on right to non-interference into private and family life of official persons said that information about personal and family live is confidential and may be disseminated only with the consent of a person, except the cases which are determined by law and only in the interests of national security, economic prosperity and human rights. The collection, keeping, usage and dissemination of confidential information about individuals without their consent by the state, local authorities, legal entities or individuals is considered as an interference into private and family life . Such interference shall be allowed only in cases determined by law and only in the interests of national security, economic prosperity and human rights. (Additional information about this decision you can found here… )

In the case, discussed in this material, a " formal approach" to the application of the provisions of the Constitution and decision of the Constitutional Court , without a comprehensive understanding of the nature of human rights, international law, case law of the European Court of Human Rights , may indicate on the validity of a criminal case, described above, and thus be a kind of warning to the media to refrain them from violations of the law because of inevitability of criminal punishment during dissemination of information about persons and their privacy without their consent.

Instead of that , we believe that there is another legal basis for closing the criminal case. So, if journalists have published such information, even if it leads to substantial harm to the interests of National Deputy , the crime would not exist.

Our statement is based on the following arguments.

The European Court of Human Rights, which decisions are a source of law in Ukraine, in the judgment in case of AXEL SPRINGER AG v. GERMANY (on violation of Article 10 of the European Convention on Human Rights that envisages the right to freedom of expression) noted that whilst a private individual unknown to the public may claim particular protection of his or her right to private life , the same is not applicable to public figures . (Additional information about this judgment you can found here… )

The European Court indicates that the duty of press is to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest . Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Freedom of expression calls for a narrower interpretation in the case where the published photos and accompanying commentaries relate exclusively to details of the person’s private life and have the sole aim of satisfying the curiosity of a particular readership in that respect.

So deciding element in each case , should be the nature of the information published about a statesman or any other public personality , namely, whether the information is of public interest .

According to part 2 of the article 29 of the Law of Ukraine " On information" the subject of the public interest is the information that indicates a threat to national sovereignty and territorial integrity of Ukraine, ensures the implementation of constitutional rights , freedoms and responsibilities, indicates on the possibility of violations of human rights , on public misleading , harmful environmental and other negative consequences of the activity (or inactivity) of persons or legal persons, etc.

In our case, the information was obtained during the photo shooting of deputy in the session hall of the Verkhovna Rada of Ukraine during a plenary session of Parliament. This information concerned the private sms- mailing of deputy to attract people to create a positive image of the person - a close relative of deputy - a defendant in a criminal case , and the development of information policy on the grounds of his prosecution.

Obviously , the information which concernes the behavior of the deputy of Ukraine , who represented the Ukrainian people in the Verkhovna Rada of Ukraine, is of the public interest especially because of due elections to the Parliament of Ukraine in 2012.

In this case, the media spread the information that is of public interest, and therefore such actions cannot be considered as illegal from our point of view.

Prepared by A.Petriv.

NOTE

The EACLA is implementing the project “ Information on public figures and implementation of public information accounting systems”. One of the Project objectives is to ensure openness of information about public figures and their families, relating to the issues of public concern.

During the project realization the EACLA provides free legal consultations on access to public information , that may be obtained in written form , by submitting requests to the postal address of the organization: P.O. Box 3060, Lviv-17, Ukraine; by mail : This e-mail address is being protected from spambots. You need JavaScript enabled to view it or by phone: 032-2257718 , 032-2971243 , as well as during personal meetings arranged by appointments.

For more information please contact the project manager - Mariana Bulgakova ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it , tel. :032 - 2257718, 032-2971243)


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