The person who is the subject of the news also has constitutional rights. When two rights conflict the Constitution does not sacrifice one to the other; it establishes a method of balancing.
The Other Side's Bases
| Article | Provision |
|---|---|
| Art. 17/1 | Everyone has the right to protect and develop their material and spiritual existence |
| Art. 20 | The privacy of private life |
| Art. 21 | The inviolability of the domicile |
| Art. 22 | Freedom of communication and its secrecy |
| Art. 41 | The protection of the family and children's rights |
The Conflict Is Resolved Inside the Constitution
The Constitution has placed that conflict inside Art. 26/2. Among the grounds for limiting press freedom the following are listed: protecting the reputation or rights and the private and family life of others or the professional secrets prescribed by law.
A Ground Is Not Enough: Art. 13 Comes In
An interference made on the ground of personality rights must also pass through the filters of Art. 13:
- It may be made only by law
- It may not touch the essence of the right
- It may not be contrary to the requirements of the democratic order of society
- It may not be contrary to the principle of proportionality
The Balancing Instrument the Constitution Prefers: Art. 32
Article 32 - The right of correction and reply is recognised only where a person's dignity and honour has been touched or where publications untrue in respect of them have been made, and is regulated by law.
If the correction and reply is not published, a judge decides whether or not it should be published within seven days at the latest from the date of the application by the person concerned. We cover the detail in the Art. 32 guide.
Where Do We Take the Measure From?
The two situations in Art. 32 also give the measure of the conflict:
| Situation | Measure | The reporter's question |
|---|---|---|
| Touching dignity and honour | The publication being directed at the person and damaging to their honour | Was that expression necessary? |
| An untrue publication | The publication being about that person and untrue | Did I verify that information? |
The Balance Is Struck Differently for Children
Art. 41 of the Constitution, by the paragraphs added in 2010, granted every child the right to protection and care and gave the State the duty of taking protective measures against all kinds of abuse and violence. That strengthens the ground of limitation in Art. 26/2 specifically for children.
We cover the detail in the Art. 41 guide.
The Personal Data Dimension
Processing personal data in the news has a separate regime and the press exception is discussed within it. We cover the detail in the copyright and data protection guide.
A Pre-Publication Checklist
- Is this information about that person, or is it a general subject?
- Have I verified the information? How many sources do I have?
- Is the expression I used necessary for the news value?
- Could I give the same news with less interference?
- Have I taken the person's view?
- If a child is involved, are the identity and image protected?
Summary
The conflict between press freedom and personality rights is resolved inside the Constitution: Art. 26/2 treats the protection of the reputation, rights and private and family life of others as a ground of limitation; Art. 13 ties that limitation to the conditions of legality, the essence of the right and proportionality; and Art. 32 recognises the right of correction and reply as the balancing instrument - a route that adds the opposing view without removing the publication.