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Sexual Privacy Vs. the Public Interest

on 11 - 02 - 2013       
Овој напис го има и на: Macedonian, Albanian

Can journalists collect data on sexual orientation of their colleagues and publish lists with names of homosexual journalists? Are there cases in which a person’s sexual orientation could be considered an issue of interest to the public? These questions are answered by Žarko Trajanovski, expert in the area of human rights, in his analysis written for the mediumi.kauza.mk website, under the auspices of the Foundation Metamorphosis project.

Sexual Orientation is Private Information
The Directorate for Protection of Personal Data considers the sexual orientation to be personal data, and the information on sexual life and activity fall within the category of personal data that needs special protection. The Law on Personal Data Protection allows to “professional journalism, in accordance with the ethical professional standards” to process personal data “only when the public interest prevails over private interest of the subject of personal data”.

The Code of Ethics of the Society of Professional Journalists states that the journalists need to be aware that “gathering and reporting information may cause harm or discomfort”:
„Only an overriding public need can justify intrusion into anyone’s privacy“.

The Code of Ethics of the Association of Journalists of Macedonia states:
„The journalist shall respect the privacy of every person, except in cases when that is on the contrary with the public interest“.

Also, in its “Manual on Journalistic Ethics”, AJM explicitly notes that:
„The information on one’s sexual orientation… shall not be published without permission, except in cases when there is indisputable public interest to do so”.

In view of the provisions listed above, we could rephrase the question we posted at the start of this text: Do the journalists who gather and publish information on the sexual orientation of other journalists, without their consent, serve a higher public interest or not?

Public Interest Vs. Sexual Orientation
Hypothetically, is is possible for one’s sexual life to be a matter of general interest? Could the question “Are there any homosexuals among…?” promote a debate of general public interest? The asnwer to both questions is positive, at least in view of the case law accumulated by the European Court of Human Rights in the decisions on cases related to violations of privacy rights.

The Court holds the position that what shall constitute public interest depends on the circumstances. So far, the Court has identified existence of general public interest in cases when the published contents raise political questions, criminal offenses, sports-related issues, but also when they refer to performing artists. Therefore, the journalistic inquiry “Are there homosexuals among politicians?” could raise a debate of general interest, especially if it refers to politicians that publicly condemned homosexuality or worked to prevent the fight for sexual equality.

For example, on June 7, 2010, the Newsweek magazine published the story “How Queer is This?”, offering the following explanation: “Funny how prominent conservatives with antigay records are so often caught in gay sex scandals, isn’t it?” The magazine published a list of six public personalities as examples of politicians who publicly promoted anti-gay views, and privately had sexual relations with men (two of them came out of closet after they were caught).

In certain cases, the question “Are there homosexuals among…?” could be a matter of public interest not only when exposing the hypocrisy of politicians, but also the hypocrisy of clergymen. Having in mind that the church condemns homosexuality, ECHR agrees with the opinion that the public has the right to be informed about the conduct of church dignitaries directly opposed to the said position of the church. For example, the public has the right to be informed if such “contradictory” behaviour transpires in seminaries where future priests are trained, between the future clergymen and their superiors.

However, in spite of the fact that the Court finds an existence of public interest in reporting of that matter, in the case ofRothe vs. Austria, it ruled that the right of privacy of a priest was violated when an Austrian news magazine published a photo depicting the priest French-kissing one of his students. In spite of the fact that the publisher called several witnesses who testified that the priest did a lot of French-kissing at a Christmas party, the Court in Strasbourg ruled that the published photograph exposed an intimate detail from the private life of the priest, who wasn’t a public figure before the publication of the controversial photograph.

So, in some cases, even if the reporter meets the public interest when reporting a given subject, he or she risks a violation of one’s privacy by exposing intimate details from the private life of the persons subject to the report.

Violations of Sexual Privacy without Public Interest
Let’s go back to the article “Are there homosexuals among journalists?” (published by “Večer” daily on January 31, 2013). In view of the right of sexual privacy, is there an indisputable public interest in the daily’s call to the citizens to join the effort to make lists of homosexual journalists? If the question was “Are there homosexuals among journalists who publicly condemn homosexuality?, it would be a matter of public interest, just as there is public interest in the question “Are there homosexuals among politicians/clergymen who publicly condemn homosexuality?”

In our particular case, too many circumstances indicate that the medium was not used to open a debate on a public interest matter, but was abused in order to deal with other journalists. The call to the citizens to engage in creation of lists of “homosexual journalists” can be seen as a call to expose personal data that enjoy special protection by the law. Without the existence of outright and unambiguous public interest, the call incites to discrimination on grounds of sexual orientation, in violation of journalistic ethics. The key indicator of that incitement to discrimination are the published comments by the readers, which are short on actual arguments and dominated by negative stereotypes and prejudice, hate-speech and intolerance, cause of concern to both the journalists and the gay community. For that reason, the sensationalist article “Are there homosexuals among journalists?” was rightly condemned not only by the Association of Journalists of Macedonia, but also by other organisations that work to protect the human rights of LGBT persons.

The translation of this text was taken from One World SEE.

This analysis was created within the framework of the USAID Media Strengthening in Macedonia Project – Media Fact-Checking Service Component, implemented by Metamorphosis. The analysis is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of its author and do not necessarily reflect the views of Metamorphosis, USAID or the United States Government. For more information on the work of USAID in Macedonia please visit its website (http://macedonia.usaid.gov) and Facebook page (www.facebook.com/USAIDMacedonia).

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