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Defamation, Privacy and Data Protection
Contributor: JUDr. Eva Ondřejová LL.M., Ph.D. (Attorney At Law, Ondřejová Law Firm)
Defamation in the Czech Republic is mainly regulated by the Civil Code and fundamental principles are embodied in the Charter of Fundamental Rights and Freedoms.
The Czech Charter of Fundamental Rights and Freedoms provides for privacy rights protection. It provides for general protection of inviolability of the person and of privacy that may be limited only in cases specified by law.
Nobody may violate secrecy of letters and other papers and records whether privately kept or sent by post or in another manner, except in cases and in a manner specified by law. Similar protection is extended to messages communicated by telephone, telegraph or other such facilities.
The Czech New Civil Code (Act n. 89/2012 Coll.) entered into force on 1.1.2014. The scope of the protection of personal rights has been increased and sanctions for an infringement of the rights became stricter compared to the previous Civil Code from 1964. Protection of personal rights in New Civil Code is regulated by the following provisions of the Civil Code.
Section 79: Assumed name
Section 81 explicitly stipulates that every person has the right to live their own life, which is a fundamental principle for the private law in general. This also creates an obligation for others to respect such an individual’s right.
This section defines general provisions for the protection of individual components of human personality. The law introduces new categories of protection of personality, such as the right to live in a favourable environment, however, it also works with classical concepts such as dignity, honour etc. The New Civil Code develops possibilities for the protection of personality and recognizes the protection of personality in areas that the previous legislation did not cover.
Right to own image and right to privacy
Capturing the image of an individual in any way that would allow his identity to be determined is only permitted with his consent.
The consent can be withdrawn.
The Civil Code contains exceptional situations in which it is possible to restrict the person’s right to privacy and other personality rights. These exceptions are called legal licenses.
Due to the public interest, certain personality rights of a person can be restricted by means of legal licenses. Goods resulting from this restriction can then be made accessible for social use, regardless whether the consent has been given by the person concerned.
The Czech law recognises 5 legal licenses:
No one may interfere in the privacy of another without a lawful reason. Without an individual’s consent, it shall in particular be prohibited to intrude into his private premises, watch or record his private life on audio or video recordings, use such or other recordings made by a third person about the private life of an individual, or distribute such recordings about his private life. Private documents of personal nature are protected to the same extent.
The protection of human privacy is based on the standard concept. It is intentionally forbidden to disturb a person’s “private premises”, not the “dwelling” of a person, since the right to privacy affects not only the place where the person resides but also the place where he or she works.
The right to privacy is one of the fundamental personality rights. It is considered that the right to privacy includes the right of an individual to decide whether, to what extent and how information and facts concerning his or her personal private life can be made accessible to others and also the right to defend oneself against unauthorized interference.
The person who gave consent can withdraw it. However, withdrawal of consent cannot be to the detriment of a person reasonably relying on the fact that the consent will not be withdrawn. Therefore if any damage arises from the withdrawal of consent, it must be compensated.
An image, or audio or video recording may, without the consent of an individual, also be reasonably made or used for scientific or artistic purposes and for print, radio, television or similar coverage.
Lawful reasons for interference with the privacy of another or for the use of his image, documents of personal nature or audio or video recordings may not be used unreasonably in conflict with the legitimate interests of the individual.
When using portraits and images, whether based on legal licenses or with permission or otherwise, two basic conditions must be preserved: the use must always be appropriate and the use must not be contrary to the personality interests of the person, which must be unconditionally respected and which are therefore inviolable in all circumstances. If those conditions are not met, the use of portraits and images becomes unlawful interference sanctioned by civil sanctions resulting from that provision.
The award of monetary compensation presupposes that there are two conditions fulfilled. Firstly that pecuniary compensation is provided in cases where immaterial (moral) compensation such as the publication of an apology was not sufficient, and secondly that the person’s dignity or honour in society has been considerably reduced.
The judges usually award both moral satisfaction combined with monetary compensation. It is the court’s discretion to decide whether there is a lack of moral satisfaction. A condition for granting reasonable compensation in money is that the dignity was already seriously diminished, so that threat of the serious injury to privacy is not sufficient. The law does not permit the reasonable satisfaction of the money granted to a third party who is not party to the dispute. The court is bound by the proposed amount of damages in the claim and therefore cannot exceed the claimed amount.
The law does not specify any minimum or maximum amount of compensation in money. The court must consider the notion of adequacy. When deciding, the court is required to consider all the circumstances in which the breach of privacy occurred taking into account the position of both parties. It could be argued that under the meaning “all circumstances of the case” the subjective circumstances of the wrongdoer’s intentions could be taken into account. This concept however presumes punitive damages which are strictly refused in the Czech civil proceedings. Since 1998, when the Civil Code was amended to allow awarding of pecuniary satisfaction, there has been ongoing debate and attempts to persuade judges to establish aggravated damages.
The right to damages is a property right and therefore there is a limitation of time to bring a claim. The time limitation is 3 years. For moral satisfaction there is no time limit.
Relief of a nature similar to injunction is provided for in the Civil Procedure Code. Article 74 of the Code states:
Article 75 continues that the court shall issue an interlocutory injunction on the basis of the motion.
In order to ensure compensation for damage or other harm that would result from the preliminary injunction, the applicant must give in security the amount of 10,000 CZ (£300). If the presiding judge concludes that the security is clearly insufficient to provide compensation for damage or other harm that would result from the preliminary injunction, an order of the supplement is issued.
Interim measures may be imposed on the party, particularly in order to desist from disposing of certain things or rights or to perform something, desist from doing something or tolerate something.
Interim measures may impose an obligation on someone other than the party only if it is possible to apply it fairly. It binds only the parties of the proceeding, unless the law states otherwise. An interim injunction becomes void if the plaintiff does not file a motion to initiate proceedings within the time limit fixed by the court or the motion regarding the case proper is dismissed.
In respect of costs, the application for preliminary injunction costs 3,000 CZK (£100) plus the security described above.
Unlike in the previous Civil Code, an apology is not enough to satisfy the injured person. With respect to the New Civil Code, the interference to one’s personality will be satisfied primarily with money if other means (apology) are not able to redress the damage caused.
The Court determines the amount of satisfaction. In case of serious interference, the compensation can amount to millions of Czech crowns.
The injured person can require:
The Czech civil system is based on the rule of written law. The judgments are not binding – with the exception of the Constitutional Court rulings – nor are the academic commentaries. The parliament cannot issue any binding recommendation on how the law should be applied. The legal terms used in Acts are explained in the Act itself if necessary. From the above cited Articles it can be seen that neither of the applicable aspects of personality is defined; it is therefore subject to society’s general perception, represented by a judge, to rule what falls under the notion of privacy. This perception could be corrected only by the Constitutional Court judgments, the decisions of which are followed. According to the Constitutional Court core decision, the definition and scope of the right of privacy established that the primary function of the right to respect for private life is to provide conditions for development and fulfilment of individual autonomous personality. In addition to the traditional definition of privacy in its spatial dimensions (protection of privacy of homes in its broad sense) and in connection with the existence of an autonomous public authority and undisturbed creation of social relationships (marriage, family, in society), the right to respect for private life includes the guarantee of self-determination in the sense of decision making by the individual. The right to privacy also guarantees the right of individuals to decide at their own discretion whether, eventually, to what extent, how and under what circumstances the personal or private information should be made available to public.
At the top of the hierarchy of the binding documents however stands the European legislation and case law of European Courts. This is stipulated in Article 10 of the Czech Constitution. Therefore, the highest authority in the Czech Republic in respect of perception of privacy is the European Court of Human Rights.
Examples of Czech case law regarding defamation and personality.
The right of child not to be a target of the media
The Supreme Court’s decision 30 Cdo 3770/2011:
The media can be found liable for breach of the personality rights of a child even where the parent of the child had put the child in the media. The protection of the child’s personality rights requires that it be protected against all interference, no matter where it comes from. That means there is a general requirement that the privacy of the child cannot be harmed even by the parent.
There is a breach of privacy when the child of the celebrity is photographed attending the school.
The use of the expression “doughnut” in depicting the child of the celebrity that is overweight is a breach of his or her privacy, dignity.
The Supreme Court 30 Cdo 5161/2008:
The exercise of criticism is not an unwarranted interference into the honour and dignity of the criticized individual if the criticisms does not overstep boundaries of the factual and specific criticism. The criticism is proportionate if the form, scope and place does not overstep the aim. Factual criticism is based only on true facts. If the criticism is based on untrue information and deduces own evaluating or discrediting opinions it is not considered factual criticism.
Supreme Court 30 Cdo 936/2005:
The image of an individual is protected if the portrayal is so concrete that the person is identifiable. An individual has a right to use, dispose, have and protect the unauthorized use of the image.
Civil law sanctions for non-property damage caused by interference in the personality of an individual can, pursuant to Section 13 of the Civil Code, arise only if the condition for the existence of an intervention objectively capable of causing non-pecuniary damage is fulfilled. This intervention, which is objectively capable of causing non-pecuniary damage, consists in either violating or merely endangering the personality of an individual in its physical and moral integrity. Such intervention must be unjustified and there must be a causal link between the intervention and the groundlessness of the intervention. The protection of personality also includes the right to image of individual and the right to a name.
The Supreme Court, 30 Cdo 2306/1999:
The right to protection of name protects the name in a broad sense. The notion of the name comprises of the surname (family name), first name but also of the pseudonym or nick name. Under certain conditions the protection is afforded to just part of the name if it is so connected to the person that it creates the individual specification.
The right to protection of name is the exclusive right to have a name, use it, dispose of it and protect it against unauthorized use. (dare, facere, omittere, pati)
Constitutional Court I. ÚS 321/06:
The right to protection of private life is an inalienable human right. Right to protection of private life comprises the right of the individual to decide according to his or her own will what and in what scope to make private information public. Public interest and the protection of the rights of others may limit the rights of the individual. This is embodied as a principle in the constitutional order. Nevertheless, it is necessary to ensure that both protected values are employed as widely as possible. Right of protection of private life encompasses the family life and right to build the relationship.
Constitutional Court III. ÚS 35/01
Article 8 about Right to respect for private and family life of the European Convention on Human Rights states that “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Privacy is the sphere of the life of a person into which no one may without the explicit permission of the law intervene or demand or obtain information about it without the person’s consent. The person subject to the right to privacy is not obliged to disclose personal information to anyone unless the law requires it.
The Civil Procedure Code (Act. n. 99/1963 Coll.) amendment applies due to the enactment of the New Civil Code. The Court of first instance in cases dealing with protection of personal rights are the lower Courts instead of the regional courts which are now the Courts of appeal.
There is no jury in defamation proceedings.
The Personal rights are protected not only by the Private law but the Criminal law in the Czech Republic plays an important role. The first part of the post regarding the Criminal law role in the media law area considered the duties of the media in respect of the reported information on Criminal Proceedings, Offenders, Accomplice, Participant and victims of a Crime. The second part is about the criminal libel and its practical use.
The criminal libel is a crime under the § 184 of the Czech Criminal Code, Act No. 40/2009 Coll. The Code states that a person who communicates false information which can seriously endanger another person’s respect among his fellow citizens, in particular damaging his position in employment, and relations with his family, or causing him some other serious detriment, shall be sentenced to a term of imprisonment of up to one year. An offender shall be punished by a term of imprisonment of up to two years or prohibition of a specific activity, if he commits this act by using the press, film, radio or TV broadcasting, public computer network or some other similarly effective method.
According to the legal practice, a “crime” whose degree of danger to society is negligible shall not be considered a crime, even though it may otherwise have the features of a crime. In order for an act to be considered a crime, its commission requires intentional culpability, unless this Code expressly provides that an act committed through negligence shall be considered a crime.
There are up to 20 criminal notifications per year when people bring the notification of the defamation to the police body or state prosecutor. The police state body is required to commence the criminal proceedings. However, majority of the cases end with the conclusion that the police stops the proceeding for lack of purpose as the case might be resolved in civil procedure. The criminal libel shall be used only in severe cases when the defamation posed a danger to the society and protected interest of the harmed person. Nevertheless, there are still notifications made just for the purpose of discouraging journalists or active people from informing the public about matters in the public interest and the existence of the sanction might be regarded as detrimental. This is the major argument for the supporters of abolishing this type of the crime. The proponents argue that this crime presents a full protection of personal rights and in cases where the allegation was of criminal nature the sanction under criminal law is only adequate. It also serves as a tool when the injured person does not know the offender, it means the person is not able to bring the civil claim.
Finally, what the case law to date shows, is that none of the convicted offenders were imprisoned. The average length of the waived punishment is four months.
The existence of this crime is questionable and disputable, however as the civil proceeding plays an important role and the criminal law only an additional – subsidiary role, its existence is arguably no longer required.
The Czech Republic’s data protection act—The Personal Data Processing Act 2019 (No. 110/2019 Coll.; hereinafter ZZOÚ)—is the implementation of the EU new legal framework: GDPR, Data Protection Directive 2016/680 (LED) & PNRD. ZZOÚ re-creates a supervisory authority (SA) for data protection—the Data Protection Authority (in Czech: Úřad pro ochranu osobních údajů; the Czech DPA).
Most of the cases regarding protection of personal rights include breach of data protection.
Contributor: JUDr. Eva Ondřejová, LL.M., Ph.D. (Attorney At Law)
Ondřejová Law Firm
110 00 Prague 1
The material in this Guide is for general information only and does not constitute legal advice.
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