News reports published in the second half of May 2015:
“Drama of the legendary actor: Gaga Nikolić is fighting for his life!”;
“The actor is in critical condition: Dragan Nikolić is fighting for his life”;
“Dragan Nikolić at the hospital, the condition is not critical.”
Public figures also have a right “to be left alone” in certain situations. With that indisputable rule in mind: are the media at liberty to report on the health condition of a famous actor, and if so, in how much detail?
Web portals and print media in Serbia have been competing to describe in detail the health status of Dragan Nikolic, a renowned actor whose fame in the former Yugoslavia dates back to the second half of the ’60s. For example, according to a “medical report” from the tabloid Informer:
“On Wednesday afternoon his health suddenly deteriorated, and the panel of doctors decided to urgently transfer him to the emergency room, which was done instantly. Dragan immediately had his lungs X-rayed, blood taken for a full analysis and was connected to monitoring which constantly checks the work of his heart and lungs. The therapy he received was further intensified, but he is still feeling very ill. He is literally fighting for his life.”
Newspapers also wrote about who came to visit the famous actor, at what time, and other details of the kind. Because of all that, the family of Dragan Nikolić turned for help to the Data Protection Authority (Commissioner for Information of Public Importance and for Personal Data Protection) and the Human Rights Ombudsman. In a joint statement of 22 May 2015, the Commissioner and the Ombudsman emphasized the need that in reporting on a person’s life, even if the person is a public figure, “greater attention should be given to privacy and elementary tactfulness, as elements of human dignity”.
The Public Information and Media Act from 2014 provides that, exceptionally, information from someone’s private life may be published without consent of the person to whom it pertains, if in the particular case the public interest to know that information outweighs the interest to prevent publication (article 82). The article also contains an (open) list of situations in which the public interest, exceptionally, outweighs the interest to prevent the disclosure of information from private life. In the specific case of Dragan Nikolić, it does not seem that any of the exceptions is applicable.
Of the eleven exemptions expressly mentioned in article 82, the only one the reliance on which is not prima facie frivolous is the exception under point 3: “if a person with his/her public statements or behavior in private, family and professional life has attracted public attention and thus kindled publication of information or recording”. However, this potential exception is inapplicable in this situation, because “attracting public attention” could serve as a possible justification for detailed reporting on health issues of Dragan Nikolić if such reporting was preceded by public disclosures of Nikolić’s health details by the actor himself, which was not the case.
Considering the meager jurisprudence in Serbia (at least the published one) about media intrusions into the private sphere of public figures, which is inversely proportional to the number of instances of such interference, it is difficult to state in a general way what falls within the standard of a prevailing “public interest” from article 82 of the Public Information and Media Act. Therefore, it is worthwhile to consult the relevant practice – rich and easily accessible – of the European Court of Human Rights, bearing in mind that decisions of this court are a source of law for the Serbian courts as well. In the cases pertaining to privacy of public figures, the Court has articulated a standard according to which the satisfaction of mere curiosity of readers does not represent public interest that would justify reporting on the private lives of celebrities.
In the decision Von Hannover v. Germany from 2004, the European Court of Human Rights found the following:
“As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, the sole purpose of which was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public” (paragraph 65).
In one of the recent cases regarding the same subject, in its decision Axel Springer AG v. Germany, from 2012, the Court took this position:
“Although in certain special circumstances the public’s right to be informed can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this will not be the case – even where the persons concerned are quite well known to the public – where the published photos and accompanying commentaries relate exclusively to details of the person’s private life and have the sole aim of satisfying the curiosity of a particular readership in that respect” (paragraph 91).
Thus, when “the satisfaction of curiosity” is the only goal of media intrusion into the private life of a public figure, the right to respect private and family life, guaranteed by article 8 of the European Convention on Protection of Human Rights and Fundamental Freedoms, prevails over the freedom of expression (guaranteed by article 10 of the Convention). The criterion of “satisfying curiosity” can serve as a suitable benchmark to the local media, journalists’ associations, as well as the courts, when assessing whether there is a public interest which justifies journalists’ dealing with private life of a renowned person.
In the case of Dragan Nikolić, the conclusion that some media acted contrary to the obligation under article 82 of the Public Information and Media Act is all the more likely if one takes into account that the media reported about the health of a public figure. Data on the health status fall within what the Personal Data Protection Actfrom 2008 calls particularly sensitive personal data. Other categories of particularly sensitive personal data are those relating to nationality, race, gender (change thereof), language, religion, political party affiliation, trade union membership, receipt of social assistance, status of a victim of violence, criminal conviction and sexual life (article 16 of Personal Data Protection Act). Particularly sensitive personal data enjoy a higher level of protection than other personal data, so the “public interest” must be particularly powerful in order to justify public communication of this type of private data. Satisfying curiosity certainly does not meet this test.
Although in the case of Dragan Nikolić the spotlight is on the media reporting, the acts of some health professionals are also questionable as a matter of law. Patients’ Rights Act from 2013 guarantees the right to have the data on patient health confidential and stipulates in article 21 the obligation of health workers and associates to protect the information about health. In addition to that, healthcare workers – like everybody else – are bound by the prohibition under article 16 of the Personal Data Protection Act from “processing” (a legal term that includes, among other things, “disclosure, publication, dissemination”) particularly sensitive personal data, including the data on health condition of the patient, without his or her consent.
It does not seem that the director of the Clinical Center of Serbia had the above rules in mind when he, according to the daily newspaper Telegraf, publicly stated:
“He recently underwent colon surgery and was released home, but a few days ago he returned to the hospital because of the temperature and lung problems. Because of his critical condition, he used a respirator to breathe, but, thankfully, tonight his condition improved. He is separated from the breathing apparatus, he is communicative and feels better.”
Apparently, there was in this case no consent of Dragan Nikolic to the disclosure of information about his health. In fact, according to news reports, the famous actor strictly prohibited that details about his illness be made public.
