In both cases, the judge still has certain freedom to choose how severe the penalty should be. Therefore, he/she has to evaluate, for example, what amount of compensation or how large a fine would be proportional to the harm the publication has caused.
Overly severe sanctions can still violate freedom of expression even if your statements have violated someone’s privacy.
Criminal sanctions for a violation of privacy can be imposed in two cases:
- cases of intentional breach of your correspondence, for example listening to your phone conversations or publishing the content of your email
- cases when your personal data has been used illegally and that has caused you substantial harm
However, criminal sanctions are an exception. This is because criminal sanctions normally include additional restrictions, such as the creation of a person’s criminal record which could limit his/her opportunities to work in certain professions in the future. Criminal sanctions could also deter the media from fulfilling their role in the future.
Therefore, the authorities should demonstrate a real need to impose criminal sanctions taking into account that less restrictive measures are available to an individual whose privacy has been infringed due to any disputed expressions. For example, a claim for monetary compensation through civil litigation.
Civil remedies: compensation & apology
If someone believes that your publication has violated their right to private life, you will most often be sued in civil proceedings for civil remedies. These usually include monetary compensation or an apology.
When a judge is deciding on the type of remedy or the amount of compensation, he/she must ensure proportionality between the restriction on your free speech and the protection of another’s privacy. Therefore, in making such a decision the judge should evaluate:
- the purpose of revealing the private information to the public
- the gravity of the intrusion into privacy (for example, the publishing of very intimate or embarrassing photographs, or revealing private, but fairly neutral facts about someone’s whereabouts)
- the distress caused to the person
- the amount of damages awarded in similar cases
Articles 24, 66 (3)
Articles 144, 145
18 January 2011