Data Protection in Greece: The Balance Between Freedom of Press and the Right to Privacy

—Antonios Kouroutakis, Oxford University

The balance between two constitutional rights was always a jigsaw puzzle. In theory, constitutional rights are considered of equal value and in case of conflict, a de facto examination of the facts would conclude on which right should prevail.

Quite recently, a case that was covered widely from national and international media took place in Athens, Greece. Namely, the Vaxevanis case^[1] that brought up to the surface the conflict between the freedom of press and data protection.

In 1997 Greece adopted the European Union directive on the protection of individuals with regard to processing of personal data and on the free movement of such data, also known as the data protection directive.^[2] For the purpose of this law, “personal data” mean any information relating to the data of the subject while the law recognizes a distinctive category of data the so called “sensitive data” that are data referring to racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, health, social welfare and sexual life, criminal charges or convictions as well as membership to societies dealing with the aforementioned areas.^[3]

Among its provisions, penal sanctions are provided for anyone who keeps sensitive data without permit or in breach of the terms and conditions referred to in the Hellenic Data Protection Authority’s permit and the penal sanction is imprisonment for a period of at least one year and a fine between 30.000 euro and 150.000 euro.^[4]

A series of exceptions are adopted for the collection and processing of sensitive data, inter alia, if the processing is lawful, it is carried out by a Public Authority and is necessary for the purposes of national security, criminal or correctional policy, protection of public health or the exercise of public control on fiscal or social services.[5]

In addition, the processing is lawful if it concerns data pertaining to public figures, provided that such data are in connection with the holding of public office or the management of third parties’ interests, and is carried out solely for journalistic purposes.[6]

The balance between the protection of sensitive data and the freedom of press was brought to surface quite recently in a criminal procedure which was brought before the Athens Penal Court of Appeal.

A journalist and publisher of a weekly magazine published the list of 2,059 Greek holders of HSBC bank accounts in Geneva, the well known “Lagarde List”. At that time an investigation was in process to examine and prosecute potential crimes such as tax evasion or money laundering. The list, unknown how, was leaked, and the journalist published it with reference to the name and surnames of the depositors, the bank account details and the balance of the accounts at the date that the list was formed.

The prosecutor pressed charges sua sponte against the journalist for violation of the data protection law and the journalist was facing a minimum 12-month imprisonment, plus a fine of miniimum 30,000 euro. The trial before the first instance court took place in November 2012 and the Court^[7] accepted the arguments of the defense that, due to the extreme financial circumstances in Greece, there was a real concern of the pubic to be informed on the content of that list, while that the disclosure of the list made inevitable its control and thus contributed greatly to the public interest.

The prosecutor appealed that decision and on the 27th of November the trial was resumed before the Penal Court of Appeal. The Prosecutor requested the sentencing of the journalist and he made clear that the purpose of the trial is not the censorship or intimidation but the balance between two conflicting statutory rights, the freedom of press on the one hand, and on the other hand the data protection of the individuals. Furthermore the prosecutor added that the approach to the case would have been different, if the journalist published only data concerning persons holding a public office or associated with such persons as intermediaries.

Nonetheless, the Court acquitted the journalist^[8] and the case is likely to close. Interestingly the judiciary for a second time disregarded the fact that among the sensitive data of the enlisted people, there were no public figures whose right to privacy was clearly infringed. But putting all the pieces of the case together, the Court moved the pendulum of the protection nearer to the freedom of press as a reluctance was shown to weaken the value of this freedom in favor of the data protection of the individual.

Suggested Citation:  Antonios Kouroutakis, Data Protection in Greece: The Balance Between Freedom of Press and the Right to Privacy, Int’l J. Const. L. Blog, Dec. 10, 2013, available at: http://www.iconnectblog.com/2013/12/data-protection-in-greece-the-balance-between-freedom-of-press-and-the-right-to-privacy