12 November, 2013
It seems hard to swallow for many people that criminals also enjoy some form of privacy protection. Last week, the lawyer of Dutch newspaper Parool put the finger on the sore spot in response to a report of a lawsuit: “Does a human being (partly) lose his right to privacy if he commits a (serious) crime? Is media coverage a result of his own actions that he will have to accept?”
The reason for the article was a photo of the TBS convicted Van P., that Parool published in 2009. The photo was a still from a documentary in which Van P. told a few things about himself. According to Parool, this was newsworthy enough to (fully) publish the photo. Van P. experienced the publication as an unnecessary infringement of his privacy. Where the Court of Amsterdam ruled that there were no infringement and damages, the Court of Appeal ruled that Van P.’s right to provacy outweighed Parool’s right to freedom of expression. The Court of Appeal of Amsterdam argued that Parool could have published the picture of Van P. with a bar over his eyes, to make him less recognizable. Van P. received a compensation of 1,500 euros. The Supreme Court rejected Parool’s appeal request, because the Court of Appeal had considered the concrete facts and interests of both parties.
This case underlines the nuances that exist in private law. A breach of the right to privacy (Article 8 ECHR) is allowed when the right to freedom of speech should prevail. However, one of the conditions is that the breach is proportionate to the interest to be protected and that there is no less drastic means to achieve this (subsidiarity). In my view, the judgement of the Court of Appeal was right. If Parool had placed a bar over Van P.’s face, the newspaper could still have proclaimed its opinion freely and could have brought the news that Van P. showed his bad side in the documentary. However, this would also have given Van P. the necessary privacy protection.
In our legal system, everyone must be able to re-enter society after serving his sentence. This also means that someone should be able to make a new start, without being haunted by his past.
Senior Legal Consultant