THE BALANCE BETWEEN THE RIGHT TO PRIVACY AND THE RIGHT TO FREEDOM OF EXPRESSION

Abstract

The purpose of the article is to study the European and national experience and practice of the ECHR in the issues of balancing the right to freedom of expression and the right to privacy. To achieve this, mainly general scientific and special legal methods, approaches, and research principles were used. In particular, these are dialectical, phenomenological, axiological, comparative legal, formal-logical, formal-legal, model, prognostic, and other methods.

As a result, a number of scientific provisions were formed. Thus, according to the practice of the European Court of Human Rights, interference with the right of an individual to respect for privacy (processing of personal data is such interference) is possible only if public interests outweigh the interests of an individual. The public interest in obtaining personal information must meet at least one of the following criteria: national security, economic well-being, human rights.

According to Part 1 of Article 25 of the Law of Ukraine “On Personal Data Protection”, “Restrictions on the application of Articles 6, 7 and 8 of this Law may be made in cases provided for by law, to the extent necessary in a democratic society in the interests of national security, economic well-being or the protection of the rights and freedoms of personal data subjects or other persons”. According to Part 2 of Article 25 of this Law, its provisions do not apply to ensuring a balance between the right to respect for private life and the right to freedom of expression. In its case law on this issue, the ECtHR weighs the “right to freedom of expression” guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, on the one hand, against the “right to respect for private life” guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, on the other hand. Typically, such cases concern the dissemination by journalists of: 1) excessive amounts of information about a person or 2) excessively sensitive nature of the information, as well as 3) information that may affect the honor, dignity and reputation of a person.

In cases on this subject, the ECtHR has applied the same criteria, namely: - the contribution of the material to a debate of public interest; - the degree of knowledge/publicity of the person about whom the information is provided; - the subject of the information covered; - the previous conduct of the person (to whom the information relates); - a) content; b) form; and c) the consequences of the publication for the person whose data is disseminated; - the manner in which the information was obtained and its veracity; - in cases considered under Article 10 of the European Convention on Human Rights, which mainly concerns holding journalists liable for the dissemination of personal data, the ECtHR adds another criterion, namely: the severity of the sanction imposed on the journalist or publisher.