If a court finds that you have published information about someone’s private life without proper justification, the judge will impose a sanction. Depending on the process you are in, these could be criminal or civil sanctions.
In both cases, the judge still has certain freedom to choose how severe the penalty should be. Therefore, he/she has to evaluate, for example, what amount of compensation or how large a fine would be proportional to the harm the publication has caused.
Overly severe sanctions can still violate freedom of expression even if your statements have violated someone’s privacy.
Criminal sanctions
Criminal sanctions for a violation of privacy can be imposed in the following cases:
- Cases of intentional violation of confidentiality of messages, for example, listening to your phone conversations or publishing the content of your email.
- Cases of illegal disclosure of personal data that has been obtained by a professional during their activities who are required by law not to disclose that information.
- Cases of illegal disclosure of sensitive personal data.
Violating confidentiality of messages and disclosing personal data can only be punished by a fine, whereas, disclosure of sensitive personal data can also be punishable by imprisonment if it was disclosed for personal gain or caused the person significant damage. However, criminal sanctions are an exception. This is because criminal sanctions normally include additional restrictions, such as the creation of a person’s criminal record which could limit his/her opportunities to work in certain professions in the future. Criminal sanctions could also deter the media from fulfilling their role in the future.
Therefore, the authorities should demonstrate a real need to impose criminal sanctions taking into account that less restrictive measures are available to an individual whose privacy has been infringed due to any disputed expressions. For example, a claim for monetary compensation through civil litigation.
Civil remedies: compensation & apology
If someone believes that your publication has violated their right to private life, you will most often be sued in civil proceedings for civil remedies. These usually include monetary compensation or retraction of the publication or other action to stop further damages.
When a judge is deciding on the type of remedy or the amount of compensation, he/she must ensure proportionality between the restriction on your free speech and the protection of another’s privacy. Therefore, in making such a decision the judge should evaluate:
- the purpose of revealing the private information to the public
- the gravity of the intrusion into privacy (for example, the publishing of very intimate or embarrassing photographs, or revealing private, but fairly neutral facts about someone’s whereabouts)
- the distress caused to the person
- the amount of damages awarded in similar cases