C. Resolution of the 49. Conference of the Federal and State Data Protection Commissioners, March 9th and 10th 1995 in Bremen - Requirements of Privacy Protection in the Media

Resolution of the 49th Conference of the Federal and State Data Protection Commissioners, March 9th and l0th 1995 in Bremen

Requirements of Privacy Protection in the Media

Independent and uncensored reporting by the press, radio and film (Article 5 para. (1) Of the Federal Constitution - Grundgesetz -) is essential for the free formation of personal or public opinion. The Federal Constitutional Court considers the free formation of opinion a prerequi-site for the development of personality as well as for a democratic social order. Thus, there is a close correlation between self-determination of the individual and freedom of the media.

The rapid developments in information systems and electronic media and the growing commercial use of press data bases on the one hand open up new sources of information for the individual, but also put the individual's constitutional right to informational self-determination in greater jeopardy. Therefore, adequate legal, technical and organizational measures to safeguard the rights of the individual are necessary.

Electronic publishing and media archives

New forms of processing data via networks and electronic storage media are leading to the creation of giant data bases of previously unknown dimension. These can be used by virtually anyone to search for personal data of other individuals. Furthermore, media archives which were used only for journalistic purposes now allow outside users access to extensive data files. The individual's right to privacy is especially endangered if practically everyone can gain access to another's personal data through material published long ago. This can negate the "right to forget", which exists in various legal sectors, for example, as regards requirements to erase data stored in the federal criminal record.

In light of these developments the privilege the media enjoys in data protection law must be redefined. At least it must be established by law that the commercial use of personal data outside the medium's own sphere, especially through commercial press data bases, is not privileged.

Interactive services and media user profiles

In the development of new digital forms of communication (interactive services such as video on demand) the right to privacy must be protected. More as in the past, importance must be attached to the development and use of technical features that favor data protection, that avoid the collection of personal data. Of special importance in this context is the establishment of anonymous payment systems, i.e. prepaid cards, on which information about their use is stored only decentrally.

As the above mentioned services are part of a emerging global information infrastructure it is the responsibility of the federal government to use its influence to bring about regulation on an international level.

Rights of the individual vis-a-vis the media

While individuals who are the subject of reports by public and private radio have the right to counter statement, just as in most areas of everyday life, there are no basic data protection rights as regards the press.

While an individual whose right to privacy is infringed upon by a radio or television report in most cases has a right to access his or her own stored personal data which may have been the basis of the report, there is no such right vis-a-vis the press. Most radio and television stations or networks, unlike the press, are obliged to store counter statements along with the data. There is no plausible reason for this differentiation.

Thus, press law should be brought into line with radio and television law (Para. 41 sec.3 Federal Data Protection Act - BDSG- and Art.17 sec.2 of the ZDF-Staatsvertrag - the interstate treaty governing one of two German public television networks).

Individuals should be granted the right to seek information about published material stored about themselves in press data bases which serve not only internal purposes.

Public relations work of public authorities

The publication of personal data by public authorities can infringe upon the individual's right to informational self determination. This applies to individuals on which the activities of the authority are focused as well as to other parties involved (for instance, objectors, victims of criminal acts, witnesses) and especially the unaffected individuals from the targeted individual's from the targeted individual's social sphere. Therefore, the disclosure of personal data from criminal investigation procedures to the media must be handled with utmost caution.

There are no statutory definitions as to the extent of the media'a right to be informed about personal data, for example in the form of news releases. The federal and state data protection commissioners therefore believe it essential that the legislature establish clearer criteria for the balancing of the right to individual privacy with the freedom of the press. This could be done through amendment of state press law or in especially sensitive sectors such as the criminal procedure through special regulations.

Court TV

The federal and state data protection commissioners oppose demands to lift the ban on radio and television reports from court proceedings. Especially as regards criminal proceedings, the presence of microphones and TV cameras inevitably would lead to severe infringement of the right to privacy of the defendant, the victim, the witnesses-and their relatives. Even with the consent of all parties, radio and television coverage should not be permitted inside the courtroom.

Court proceedings should not be turned into a mass media spectacle.