Protection of the Child's Privacy in Croatia from a Criminal Law Perspective.

Protection of the Child's Privacy in Croatia from a Criminal Law Perspective Presented by: Prof. Dr. Prtenjača Date: 1 December 2022 Structure - Introduction - International and regional regulation of privacy protection - ECtHR case law - child's privacy protection - Regulation of privacy protection in Croatia and statistics - Conclusion remarks for further discussion International And Regional Regulation Of Privacy Protection - General regulation-of privacy protection • the Universal Declaration of Human Rights (1948) • the Covenant on Civil and Political Rights (1966) • the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950; Convention) • Declaration on mass communication media and Human Rights • the Charter of Fundamental Rights of the European Union (EU Charter) • the Treaty on the Functioning of the European Union (TFEU) • the Treaty on the European Union (TEU) • Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data, • Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector • - General Data Protection Regulation (GDPR), etc. Specific regulation- protection of the child's rights (and privacy) • Some relevant (soft law) documents regarding child's rights are the • Geneva Declaration of the Rights of the Child (1924) and • Declaration of the Rights of the Child (1959) but none of the documents mention specifically privacy rights of the child, although the Declaration states the children rights to name and nationality - • Mandatory • the Convention on the Rights of the Child (1989) Universal Declaration of Human Rights besides in its Art. 12. protects the privacy of the child through the right to education and choice of the education in Art. 26 par. 3. - Covenant on Civil and Political Rights protects the privacy of the child: • not only by Art. 17 but also, by • Art. 14 par. 1 regarding 'proceedings concerns matrimonial disputes or the guardianship of children'; • Art. 18 par. 4 to 'ensure the religious and moral education of their children in conformity with their own convictions'; • Art. 23 par. 4 protects the child's rights in the matrimonial merits specifically dissolution and by • Art. 24 which generally stipulates the rights of the child to the 'measures of protection which as are required by his status' • and the right to have name and nationality (personal data) The Convention on the Rights of the Child (1989) - the Convention on the Rights of the Child (1989) the first document in which the child is approached as a subject with rights, and not only as a person who needs special protection- - Hrabar considers this Convention to be the most important and fundamental international global document that protects children's rights, and spiritus mavens of this Convention is to act in accordance with the child's best interest (which is not defined) - Art. 16 of the Convention on the Rights of the Child guarantees that every child has the right to legal protection against interference with his privacy, family, home, or correspondence, as well as protection against unlawful attacks on his honor and reputation - There are more rights protected by the Convention on the Rights of the Child, which reflect the privacy dimension of the child - Art. 12 the right to express her/his views freely in line with his/her age and maturity in all matters affecting him/her, if is capable of forming his or her own views of special importance regarding children's right to give consent when taking and publishing their photos, as to all other issues in connection with their privacy protection - Art. 13 regulates the child's right to freedom of expression, and - Art. 14 the child's freedom of thought, conscience and religion, The EU Charter - The EU Charter guarantees the right to privacy in: - Art. 7 (Respect for private and family life), - Art. 8, (Protection of personal data), - Art. 9 (Right to marry and right to found a family), - Art. 10 (Freedom of thought, conscience, and religion), - (Art.14). right to education of all population especially children - Art. 24 especially pronouns the rights of the child and his/her best interest, emphasizing the children's 'protection and care which is necessary for their well-being', and the right to express their views freely which 'shall be taken into consideration on matters which concern them in accordance with their age and maturity'- similarly as to Art. 12 of the Convention on the Rights of the Child, this norm can have significant legal importance regarding children's right to give consent when taking and publishing their photos - Art. 32. the child is protected from labor exploitation GDPR - GDPR regulates the child's rights and age of lawfully consent in relation to information society services (Art. 8.) - Art. 8 defines that member states can provide for these purposes by law with a lower age limit, if the age limit is not lower than 13 years- connected to this provision in Art. 19 of the Implementation of the General Data Protection Regulation Act (IGDPRA) is defined that when applying Art. 6, para 1, dot. a) of the GDPR, the processing of the child' personal data in Croatia is legal if the child has at least 16 years - In all other sense, the GDPR applies in the same scope as to the adult person - in Art. 6, par. 1, al. f)- emphasize the importance and sensitivities of the child's rights and interest which the controller must bear in mind when processing of data, and if comes to the conclusion that interest of the child overrides the legitimate interest must pursue in that direction Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings - Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, guarantees the rights to privacy in Art. 14. regarding the hearings involving children which should be primarily in the absence of the public - Related to that, a special issue becomes the accessibility of the personal data of the minor who commit illegal activity- the Court of the European Union (Curia) in the case of Rīgas Satiksme (C- 13/16, EU:C:2017:336) (Latvia) decided that police or other authorized body should give or forward the personal data of the perpetrator of the offence or for torts proceedings, even if the person is minor ECtHR Case Law - Child's Privacy Protection - The Court showed special care toward child's privacy right protection, especially concerning the photos of the children and other personal information - Von Hannover v. Germany (no. 2), the Court proclaimed that the protection of the rights and reputation of others has particular importance in this area, "as photographs may contain very personal or even intimate information about a person or his family"- "a person's image constitutes one of the chief attributes of his or her personality, as it reveals the person's unique characteristics and distinguishes the person from his or her peers" - it concluded in the case of Rodina v. Latvia that even a neutral photo accompanied by a story that portrays an individual in a negative light is a serious intrusion into the private life of a person who is not seeking publicity - in the case N. Š. v. Croatia, the Court stated that due to children's vulnerability, the protection of their personal data was essential because of their "identity, well-being and dignity, personality development, psychological integrity and relations elations with other human beings", but also stated that a further dissemination of public information" had still to be weighed against the child's privacy considerations - the case was about revealing personal information of the child on TV by her grandmother in custody proceedings which was secret-pointing out the malfunctioned practice of the center for social welfare - she was charged and convicted for the criminal offense of the breach of confidentiality procedure - she then lodges a complaint about a violation of Art. 10 (Freedom of expression) of the Convention and the ECtHR found the violation - In this connection, the Court notes that, according to the relevant international materials, information on personal data which could reveal or indirectly enable the disclosure of the child's identity as a rule should be kept inaccessible to the general public and the press, although there might be cases where exceptionally the child might benefit if his or her identity is revealed or where strict abidance by the rules of confidentiality might pose a risk of harm to the child - were details about the course and stage of the proceedings concerning N.G.'s case was know form previous media report - some elements of the information in question were already known to the public, a further dissemination of "public information" had still to be weighed against the child's privacy considerations (par. 111) - in this connection, it is also important to note that according to the domestic law and the relevant provisions on journalistic ethics, the journalists who participated in the preparation of the television show had an important responsibility to ensure that the confidential information concerning children was not disclosed - the Court also notes that the domestic courts failed to take into account the fact that the applicant's participation in the disputed television show was not aimed at satisfying the curiosity of a particular audience regarding details of a person's private life..., but to protect N.G.'s interests by raising issues as to the malfunctioning of the social welfare - in the Court's view, such a formalistic approach by the domestic courts, contrary to the requirements of the Court's case-law, led to them not conducting a proper review as to whether the interference with the rights protected by Article 10 of the Convention was justified - in view of the foregoing, the Court places a particular emphasis on the domestic courts' failure to examine all the relevant circumstances of the case in the light of the principles set out in the Court's case-law. Accordingly, there has been a violation of Article 10 of the Convention (par. 112-118) - ECtHR's in the case Bogomolova v. Russia, found the violation of Art. 8 of the Convention concerning the publication of a photograph of a child on the cover page of a booklet entitled 'Children need a family', published by a Centre for Psychological, Medical, and Social Support - in that case, mother gave her consent for taking a photo of her son to one person who was traveling with them, but without knowledge of the purpose for which the picture will be used. Regulation Of Privacy Protection In Croatia By Media Act And Electronic Media Act - Media Act defines privacy as family and personal life and the right to live by his/hers own choice • Art. 7 regulate the right to privacy of each individual, and of course children, as a right which has every person, including a person performing public service or duty "except in cases related to public service or duty performed by a person.,, • Such regulation is in line with ECtHR case law, which provides protection to the public and "relatively" public figures from invading their privacy if the recordings made are not related to the function they perform (see case Von Hannover v. Germany (no. 2) §§ 31,32 and Case of Axel Springer AG v. Germany, §§ 89-95) • There are also provisions that regulate special cases when a person attracts public attention with his/her statements, behavior, and other acts from personal or family life---in such cases these persons cannot "demand the same level of privacy as other citizens". Their right to privacy is narrower • In some cases, in which legitimate public interest prevails over privacy protection they have no protection of privacy- these provisions are often used as a cover or as a shield of the media and press from lawsuits - Electronic Media Act forbids the publication of information that reveals: • The identity of a child under the age of 18 involved in cases of any form of violence, regardless of whether the witness, victim or perpetrator, or the child attempted or committed suicide, nor disclose details of the child's family relationships and private life, and personal data of minors collected or otherwise obtained by media service providers within the framework of technical measures for the protection of minors may not be processed for commercial purposes, such as direct marketing, profiling and targeted behavioral advertising • Such stipulation does not explicitly exist in MA, but the publisher can be held liable for damage if it was caused by the publication of the personal data of the minor (children) (Art. 21, par 5 MA) - GDPR is part of the Croatian internal national legal system, therefore violations of the privacy of the child are to be reported to Croatian Personal Data Protection Agency (hereinafter: Agency or PDPA) - The protection of child privacy can be found in the Family Act, Official Gazette, 103/15, 98/19 (subsequently: FA), - in Youth Courts Act, Official Gazette, 84/11, 143/12, 148/13, 56/15, 126/19 (subsequently: YCA) which is a child-friendly act and - Penal Code, Official Gazette, 125/11, 144/12, 56/15, 61/15, 101/17, 118/18, 126/19, 84/21. (hereinafter: PC) which applies "ultima ratio". - Consequently, the Penal Code protects the privacy right of the child with criminal offence against privacy and especially with criminal offence 'Violation of the Privacy of the Child' (Art. 178 PC which is placed in offences against Marriage, Family, and Children) - Criminal prosecution can be instituted against a person who • Disclose or transmit something from the child's personal or family life, publish a child's photograph or reveal the child's identity contrary to regulations, which caused the child anxiety, ridicule of peers or other persons, or otherwise endangered the child's welfare. - This person can be anyone- even the parents of the child The Office of Child's Ombudsman - In 2021, the Office of Child's Ombudsman acted in 83 individual cases related to the child's right to privacy - Most often reports were in connection to the privacy of children in the media, including all social media, and especially social networks, then in institutions - schools, kindergartens, social welfare institutions, and hospitals, in sports clubs, in other places, and in the family - Child's Ombudsman forwarded their complaints to the Personal Data Protection Agency (hereinafter: Agency or PDPA) - Or referred the plaintiff to contact Agency directly as a body authorized to supervise the processing of personal data in accordance with the Implementation of the General Data Protection Regulation Act (IGDPRA) - Most reports of violations of children's privacy in the media were related to violations of children's privacy by using their photos or videos during the campaign for local elections, which was usually interpreted as exploitation of children for propaganda purposes, in order to achieve political goals Conclusion Remarks For Further Discussion - Is child's privacy protected enough - Who are most often the violators • Regulation exist -not obeyed in all cases  Media and press  Social media, social networks,  Institutions - schools, kindergartens, social welfare institutions, and hospitals, sports clubs, • Parents and close related persons-'sharenting'?- some regulation exists - it is not enough • Others? - Age of consent ? - In Croatia of the right to privacy of the children is totally in the control of their parents - It could be said that children in Croatia don't actually have the protection of their privacy right from their parents (unless the criminal offense is committed)