Friday, November 2, 2012

Greece: protecting freedom of expression

You may have read about the widely-reported case of the Greek journalist who published the list of 2000 Greeks with Swiss bank accounts.   The journalist was put on trial for criminal breach of data protection rules.  Thankfully, the courts recognized that this journalist published the names in the public interest.  Indeed, the case confirmed the world's strong suspicions that the Greek political and financial elites were protecting themselves from investigations into tax evasion.  Rather than investigate why the Greek tax authorities failed to investigate this list of 2000 names, after having been given the list two years ago by the IMF, the authorities put the journalist on trial.  This was a transparent attempt to use the criminal justice system, and "data protection", as a way to chill this (and other) journalists' attempts to expose tax evasion and political connivance. 

Thankfully, the Greek court dismissed the charges of data protection crimes against the journalist.  
As a privacy lawyer, I note a few things.  Data protection laws in Europe explicitly foresee an exemption from normal privacy laws, for journalistic purposes, such as "necessary to reconcile the right to privacy with the rules governing freedom of expression" and for "substantial public interest".  Articles 9 and 8 of the Directive.   Surely, this Greek example meets both tests, and the court was quick to reach that result.

Nonetheless, I'm very worried about the increasingly criminalization of privacy laws, especially across Southern Europe.  Once privacy laws are inscribed into penal codes, they open the door to prosecutors and criminal judges pursuing such cases with the blunt machinery of criminal justice, backed up with threats of jail.  Many such cases, like this Greek example, are nuanced cases balancing fundamental human rights, like privacy and freedom of expression.  Nothing is more dangerous to freedom of expression than using vague notions of "privacy" to threaten journalists, or newspapers, or Internet platforms, or employees of Internet platforms, with jail time, when they are exercizing their rights to freedom of expression or operating a platform for others to do so.   There are now hundreds of such cases around the world.  

Luckily, the Greek justice system was quick, and resolved this case in days.  But many criminal justice systems are notoriously slow.  As reported in The Economist, to take the example of Italy:  "Italian justice has a reputation for moving very slowly."   My own Italian privacy criminal trial has been dragging on for years, and is expected to begin the appeals phase soon, on December 4, almost 5 years after I was first "detained" by Italian police in Milan.   5 years is a long time to put someone through criminal justice hell, in a landmark case trying to make me vicariously liable for user-generated content uploaded to an Internet video platform.  

Congratulations, Costas Vaxevanis, I respect your courage. Powerful forces try to use criminal privacy statutes to restrict freedom of expression.  Thank you for standing up to them. 

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