THE NEW (AND EMERGING?) PRIVACY RIGHTS: PART III

On 13 May 2014, the Court of Justice of the European Union (CJEU) made a ruling in the case Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez (Case C-131/12) that drastically changed the privacy landscape for European citizens. The outcome of the ruling has come to be known as ‘the Right to be Forgotten’.

Not long after that judgment came the decision of the Grand Chamber of the European Court of Human Rights (ECtHR) in Magyar Helsinki Bizottság v Hungary (App No 18030/11). The court was asked to consider whether Article 10 of the Convention could be interpreted as guaranteeing a right of access to information held by public authorities. It declared that when certain criteria are met it could. And so, access to information is now, in essence, a human right.

Finally, there is the question of privacy rights in relation to the dead, where the possibility has emerged that such a claim could be established. The ECtHR has considered the question in the cases: Putistin v Ukraine (App No 16882/03), Yukovlevich Dzugashvili v Russia (App No 41123/10) and Genner v Austria (App No 55495/08). The near ubiquitous use of social media has also introduced a new dimension to personal information. An issue that now arises is what happens to, and who owns, information on social media accounts when someone dies?

I shall be considering these ‘Rights’ in turn in separate articles divided into: Parts I, II and III.

[PART I: THE RIGHT TO BE FORGOTTEN]

[PART II: ACCESS TO STATE-HELD INFORMATION]

 

 

PART III: PRIVACY RIGHTS OF THE DECEASED

Privacy law has made considerable advances in the past decade, but is it extending so far as to create a right to privacy for the deceased? In English common law the dead have no legal rights in libel claims: personal causes of action die with the person. Parliament rejected a suggestion that the Defamation Act 2013 should be amended to allow claims for up to 12 months following a person’s death. Even if a person dies between the end of a hearing and delivery of judgment, the case will abate.[1]

What is emerging however is the possibility of tangentially maintaining a dead person’s privacy under Article 8 of the European Convention of Human Rights (“Article 8 rights”). That is, where the dead person’s reputation, or private information about the dead person, has a direct impact on a living person. The ECtHR considered this aspect in: Putistin v Ukraine (App No 16882/03), Yukovlevich Dzugashvili v Russia (App No 41123/10), and Genner v Austria (App No 55495/08).

In Putistin, the applicant complained that an article published by Komsomolska Pravda defamed his deceased father. The article was about the so-called 1942 ‘Death Match’: a football match between a Ukrainian football team and a team from the German Luftwaffe. The Ukrainian team won. Afterwards some of the players were arrested and taken to a local concentration camp; four players were later executed.

The applicant argued that the article implied that his father was among the surviving players who allegedly collaborated with the Gestapo, and that this infringed his Article 8 Rights by damaging both his father’s reputation, his family’s and his own. The ECtHR accepted that the reputation of a deceased family member may also affect the reputation of an individual family member, thereby affecting the person’s private life and identity, and fall within the scope of Article 8.[2]

However the Court concluded that in this case the interference with the applicant’s Article 8 Rights was minimal because the article did not explicitly name his father. Although his father’s name appeared below a photograph, it was not legible. The application was dismissed.

In Yukovlevich Dzugashvili, the grandson of Joseph Stalin complained to the ECtHR in relation to a libel claim he had brought against Novaya Gazeta in the domestic court. He had argued that the article, relating to the shooting of Polish prisoners in 1940, had been false and unsubstantiated. The ECtHR distinguished this case from Putistin on the basis that there is a difference between private individuals and public figures.

In Genner the applicant worked for an association that supports asylum seekers and refugees in Austria. He made several defamatory statements about the Federal Minister for Interior Affairs, the day after her death, on the association’s website. The statements implied that she ordered, or approved of, torture and deportation of detainees, and was motivated by racism and xenophobia. Her husband filed a private prosecution for defamation, for which Mr Genner was convicted and given a fine. He argued to the ECtHR that the conviction was a breach of his Article 10 rights.

The Court was of the view that “dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives” falls within the scope of Article 8.[3] Whilst it went on to acknowledge the greater degree of criticism a public figure must tolerate, there is still “a minimum degree of moderation and propriety” afforded by Article 8.[4] The timing of the statements – the day after her death – was considered to be particularly important, such that it was “an attack on the core of personality rights” and would have a substantial impact on her grieving family.[5] It concluded that there had not been a breach of Mr Genner’s Article 10 rights.

These cases all suggest that there are circumstances where the privacy rights of a dead person will be extended beyond their death, albeit for a limited period of time, and generally where there is a living person who is also impacted by the disclosure. In the UK, a court may uphold that information be kept private indefinitely. A case to consider is V v Associated Newspapers Ltd & Ors.[6]

There had been proceedings in the Court of Protection (‘CoP’) to determine whether or not ‘C’ had capacity to refuse medical treatment that would keep her alive. The CoP concluded that she had capacity; C later died. Her children applied to have the reporting restrictions on identification of C (and themselves) maintained, despite her death. C had been a well-known socialite and various newspapers were keen to report on the circumstances of her death.

The reporting restrictions were maintained to protect the Article 8 rights of her children. Interestingly, the order stipulated that the restriction remain in place without a specified end date, on the basis that the evidence given by her adult daughter was extremely personal, and that the particular vulnerabilities of her youngest daughter would still be present when she reached 18 years of age.

The special nature of medical information has also been considered in the ECtHR. The family of former President of France, François Mitterand, brought proceedings against his private physician, Dr Gubler, who was planning to publish a book about the President’s treatment for cancer after his death. The French courts granted an injunction against the publisher and Dr Gubler, who was subsequently prosecuted for breaching medical confidence.

The case reached the ECtHR,[7] where the court highlighted the public interest in the transparency of political life. But the publication of the book within weeks of Mitterand’s death “constituted a prima facie breach of medical confidentiality [that] could only have intensified the grief of the President’s heirs following his very recent and painful death”.[8] The ECtHR held that the initial injunction was justified, but the decision to permanently ban the book, some 9 months after Mitterand’s death, was a disproportionate interference with the publisher’s Article 10 rights.

In the UK, there is no clear authority that breach of confidence claims do not survive death, but at least in regards to medical information, the Information Commissioner and the Information Tribunal are of the view that personal representatives of a deceased person can bring a claim for breach of confidence[9].

In Pauline Bluck v Information Commissioner and Epsom & St Helier University Hospitals NHS Trust[10], the applicant was the deceased’s mother, who wanted the hospital to disclose details of her daughter’s medical information under the Freedom of Information Act 2000 (FOIA). The tribunal held that it fell within the exemption provided for by section 41(1)(b), which permits the withholding of information if it would constitute a breach of confidence “actionable by that or any other person”.

Aside from medical confidentiality, there are also other indirect privacy protections for the deceased in the UK. Under section 111(2) and (4) of the Broadcasting Act 1996, a privacy complaint may be made to OFCOM by a personal representative or family member of a person, up to 5 years after they have died. And it is ironic when it comes to social media, where a person gives up so much privacy whilst alive, that they can achieve privacy in death.

The relationship between a social media platform, or email service provider, and its user is contractual. The usual term in the agreement is that there is no right of survivorship, and that the account is non-transferable. Unless a person has given a family member, or someone they wish to be able to access that information if they die, their account details, that information will disappear after their death.

As this type of information is not considered property[11], it is intangible and cannot be inherited. Disclosure of the data on the deceased person’s account will therefore depend upon the discretion of the social media provider (the process varies between them). This issue arose in the U.S. case Re Estate of Ellsworth,[12] where the father of deceased Marine Justin Ellsworth requested access to his son’s emails from Yahoo! Inc. Despite a breach of the company’s term of service and no legal basis for transferring the data, Yahoo eventually complied with a court order to release the information.

Currently, data protection legislation in the UK does not include the protection of decedents’ personal data, and there is no requirement to do so under the Data Protection Directive. The General Data Protection Regulation – which will be introduced in the UK even with Brexit – does not extend rights to the deceased. However, as can be seen, protection of the privacy of those who have died may still be possible.

 

If you are interested in further information or advice, please contact my clerks to instruct me on: 01823 247 247.

 

[1] See Smith v Dha [2013] EWHC 838 (QB).

[2] See paragraphs 32 and 33 of the judgment.

[3] See paragraph 35 of the judgment.

[4] See paragraph 36 of the judgment.

[5] See paragraph 45 of the judgment.

[6] [2016] EWCOP 21 (25 April 2016).

[7] Editions Plon v France (2006) 42 EHRR 36.

[8] See paragraph 47 of the judgment.

[9] See ICO guidance: https://ico.org.uk/media/for-organisations/documents/1202/information-about-the-deceased-foi-eir.pdf

[10] EA/2006/0090, 17 September 2007.

[11] Boardman v Phipps [1967] 2 AC 46; in Fairstar Heavy Transport NV v Philip Jeffrey Adkins [2013] EWCA Civ 886, the Court of Appeal refused to decide the case on the basis of whether information can be considered property as a matter of law (see paragraphs 47 to 49). Also see comments of Lord Hoffman in Douglas v Hello! (No 3) [2008] 1 A.C. at [124], and Lord Walker at [275]-[276].

[12] No. 2005-296, 651.DE (Mich. Prob. Ct. Mar, 4, 20005).