From AJR,   December 1997

A First Amendment Threat From Abroad   

The U.S. will come under pressure from Europe to restrict the collection and distribution of personal data.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

When law partners Samuel D. Warren and Louis D. Brandeis first came up with the "right to be left alone" in 1890, American journalists feared that the right of privacy would threaten their ability to gather and disseminate truthful, accurate information about individuals who object to media scrutiny.

As it turned out, journalists, not their news subjects, held the trump card. Whenever the right to speak or publish was threatened, they brandished the First Amendment and, as often as not, newsworthiness and free speech prevailed.

That's not the case outside the United States, as European initiatives to impose restraints on journalists in the wake of Princess Diana's death – far more serious than similar efforts in this country – have shown. But paparazzi-bashing is just one symptom of the fundamental differences between European and American attitudes toward free speech that lurk beneath the surface.

The First Amendment's unconditional prohibitions on government constraints on speech have no counterpart in European law. There, everything is relative. A case in point is the 1950 European Human Rights Convention.

The convention might best be described as Europe's primary statement on human rights law. It is the template from which the European Court of Human Rights crafts its rulings, which are binding on all member states.

Article 10 recognizes a right to freedom of expression, but unlike the First Amendment, the right is subject to "necessary" conditions or restrictions to protect national security, public morals and the rights and reputations of others, and to prevent crime, disorder or disclosure of confidential information. Free expression is just one "fundamental right" among many, and member states are encouraged to pass laws that restrain speech in order to advance other "fundamental rights" – like privacy, recognized in Article 8.

In that spirit, the European Union in 1995 issued its Directive on Data Protection to address privacy concerns raised by the use of computers for storing and transmitting data. The directive governs the collection and dissemination of "personal" data not only within Europe, but the transfer of data to countries outside the European Union as well. Nations failing to provide "adequate" data protection after October 1998 will not be allowed to exchange information with their European counterparts.

The directive imposes strict regulations on anyone who "processes" – collects, stores or distributes – personal data. "Personal data" is broadly defined as virtually anything that uniquely identifies an individual, from Social Security-type identification numbers to physical, economic or cultural characteristics like race, ethnicity and religious or political affiliations.

"Processors" must notify "data subjects" of how the information will be used and give them the right to approve or veto that use, as well as to correct erroneous information maintained in electronic archives.

There is an exemption "solely for journalistic purposes," but it applies only when necessary "to reconcile the right to privacy with rules governing freedom of expression." While no one knows exactly how that balance will be struck, Stefan Walz of Germany said at a September meeting of data protection commissioners in Brussels that news organizations would be required to give people access to newsroom databases, as well as the right to "correct" entries about themselves and to demand that material be deleted from computer records. Newspapers that put their material online would also have to accept a "reply" submitted in response to a news story by anyone mentioned in it, and to store that reply with the original article so it could be read by everyone who calls the article up.

And, because, as Walz said, "it is self-evident that not everybody can declare himself to be a journalist," the government would have to decide who is one.

ýach of these requirements conflicts with so many U.S. Supreme Court decisions on free press that implementation seems unthinkable. But don't think it couldn't happen. Multinational businesses, under threat of a "data boycott" by the European Union, will pressure the Clinton administration, Congress and the states to enact similar legislation before the 1998 deadline. The Utah legislature began considering one such proposal in October.

The European Directive embodies the essential difference between the values and traditions of the Old World and those of the New. Europeans believe that civil rights are best protected by the government. Americans believe that civil rights need to be protected from the government. In a battle between these two principles, the First Amendment could be the first casualty. l