Information on digital pillories

Digital pillories are gaining in popularity. Blacklists are increasingly common on the Internet, providing the names of people whose actions or decisions do not meet with the approval of the blacklist's author. These lists frequently also publish the home addresses and/or photographs of the people in question.

Breach of privacy with digital pillories

General remarks

Blacklists and digital pillories are problematic in relation to the protection of personal privacy. People are often listed under an attention-grabbing buzzword and exposed to accusations without the reader being given enough information on each specific case to form an objective opinion. In most cases, the persons concerned are pigeon-holed as offenders without having the opportunity to defend themselves.

The main goal of these pillories is to put down and stigmatise the persons listed in comparison with those not listed. In some circumstances, the effect of digital pillories, basically the same as that of medieval pillories, qualifies as a serious breach of privacy. Digital pillories do not really cater to the public's need for information, but primarily serve the particular interest of the list's author in encouraging people to act and make decisions according to his or her views. The boundaries with criminal incitement are blurred.

Breach of privacy with pillories for public authorities

Certain blacklists name public servants whom the author thinks have acted improperly. First of all, legitimate and objective criticism of authorities and public servants is permitted and protected by the right to freedom of expression. However, subjective and unnecessarily humiliating and offensive remarks are not allowed. Whether criticism is objective or legitimate is not determined according to the subjective feelings of those involved (whether the author of a list or a person on it), but according to objective criteria, i.e. how the criticism is perceived by ordinary readers.

Since they perform public activities, public servants must be prepared to accept a greater amount of public criticism than private individuals. However, this only applies to the publication of information that is related to the public activity of the person concerned, and to objective criticism. This means that private information, such as home addresses, phone numbers and e-mail addresses, club memberships or photographs have no relevance to objective and justified criticism. The publication of this type of information contains an implicit or even explicit invitation to contact the respective persons outside of their public role. It does not appear to have any other purpose. At the very least, this is a serious breach of the privacy rights of the persons concerned, if not an actual criminal offence.

Breach of privacy by publishing data already made public

People defending the publication of blacklists often argue that all information on the lists had already been made public (also by the persons concerned themselves), contending that the use of this information is not an invasion of privacy. However, they fail to recognise that although the authors generally use publicly available information, it is combined with other information and published in a completely different context. This consolidation of information can amount to a personality profile. In addition, the personal data is processed in such a way that it can still be found on the Internet after a long time and is prominently displayed in connection with blacklists in search results. Such processed information no longer bears any relation to the original publication. In other words, even the exclusive use of information which has already been published can breach the privacy rights of the persons concerned.

To sum up, digital pillories and blacklists normally breach the privacy rights of the public servants concerned.

Justification

General remarks

A breach of privacy is unlawful unless it is justified by a law, an overriding public or private interest or the consent of the person concerned. In the case of digital pillories, it is primarily an overriding public or private interest that comes into consideration. Digital pillories are generally justified with the argument that the public has an interest, for example, in being informed about persons with a poor payment record or about the conduct and mistakes of public servants.

It should be noted here that information published on a blacklist on the Internet is made available to an unlimited number of persons (all the people worldwide who have access to the Internet). Furthermore, it is fair to assume that once online, published information can be accessed for an unlimited period of time, even after the original publication has been deleted. Spreading what is primarily libellous or very private information in this way can only be justified by a very serious public interest, which is not to be assumed readily and does not apply at all, for example, to digital pillories warning about people with poor or bad credit ratings. So generally speaking, there is no justification for a breach of privacy caused by a digital pillory.

Justification for pillories for the authorities

When they publish information about allegedly errant public servants, blacklist authors are specifically catering to a public interest in the behaviour of public servants. The authors see themselves as watchdogs and want to inform the public about cases of maladministration. As such, they place their pillory webpages on a par with the press. This is, however, a lame comparison for a number of reasons:

In the vast majority of cases, blacklists and digital pillories are not the result of professional journalistic handling of information, and are therefore not considered to be media products. As already demonstrated, they primarily serve their authors' self-promotion and vested interests. In addition, authors seldom fulfil a professional journalist's duty of care; often they even wilfully disregard these requirements. Information is thus selected in a very partial and arbitrary way, and is published without giving the persons concerned the opportunity to respond to the criticism. The situation is further exacerbated by the fact that these lists and/or comments are often published anonymously.

The result is a dearth of objective fact which can hardly be said to cater to the public's need for information. The oftentimes serious breach of the privacy rights of the persons concerned cannot, in any case, be justified.

The authors of these digital pillories also invoke their constitutional right of freedom of expression, contending that, from this point of view, public criticism of public servants and their conduct must be allowed. The persons listed, in turn, feel that their equally constitutionally protected rights to privacy and to protection of their personality are breached. It is generally acknowledged that individual freedom only goes so far until the rights of other people are affected. Freedom of opinion ends where it infringes the privacy of the persons concerned. Clearly, therefore, the serious breaches of privacy that can result from the publication of blacklists cannot be justified, even by claiming the right of freedom of expression.

Conclusions

  • Digital pillories exposing information about private individuals are a serious breach of privacy rights, and can generally not be justified. The publication of these pillory webpages is therefore illegal.
  • Public criticism of public servants is allowed as long as it is objective and limited to the work of the person concerned in their public capacity.
  • Digital pillories do not generally provide any objective criticism and are therefore illegal.
  • Information about the private life of public servants (e.g. home addresses, phone numbers, e-mail addresses, club memberships or private photographs, etc.) may neither be published nor shared as a link.
  • Unnecessarily humiliating comments and invitations to contact the person in question outside of their public role may not be published.

Last update: September 2012

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