If a court finds that you have published information about someone’s private life without proper justification and without their consent, 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:
- intentional breach of your correspondence, for example listening to your phone conversations, opening your correspondence, deleting or publishing the content of your emails or phone texts etc. capturing, recording or transmitting, without your consent
- words that you have spoken in private or confidentiality
- an image of you in a private place
- your real-time or deferred location
- keeping, using in any way, or bringing to the knowledge of the public a recording, an image or a document obtained by means of one of the methods explained above
- cases of revenge porn, i.e., sharing recordings, videos or images of you of a sexual nature, obtained with your consent to capture them but without your consent to share them publicly.
- publishing a montage (i.e., an assembly of images, videos, or sound sequences) made with your words or images without your consent, if it is not obvious that it is a montage or if it is not expressly mentioned.
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 is possible if the violation of privacy does not constitute a criminal offence. Indeed, the right to respect for private life is prescribed under Article 9 of the Civil Code, which means that an action can be brought before the civil courts, for example the victim may ask the judge to take measures to stop the violation or claim compensation.
Civil remedies: compensation & press release
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 and/or the publication of a press release announcing your conviction for violation of the victim’s privacy. 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
Administrative sanctions
The Regulatory Authority for Audiovisual and Digital Communication (ARCOM) can impose sanctions to publishers and distributors of audiovisual programs and services (radio and TV) who have not complied with their obligations, for example those who have not respected their ethical rules which include respecting others’ right to respect for their private life and right to respect for their reputation and honour.
The ARCOM can impose different types of sanctions depending on the seriousness of the breach committed:
- suspension of the publication or broadcasting of the service/program for one month or more
- financial penalty
- withdrawal of the authorisation to broadcast the program
Read more about the Regulatory Authority for Audiovisual and Digital Communication.