Προσωπικότητα (Δίκαιο) -- Ελλάδα Διαδίκτυο -- Δίκαιο και νομοθεσία -- Ελλάδα Προστασία δεδομένων -- Δίκαιο και νομοθεσία -- Ελλάδα Personality (Law) -- Greece Internet -- Law and legislation -- Greece Data protection -- Law and legislation -- Greece
Πάντειο Πανεπιστήμιο Κοινωνικών και Πολιτικών Επιστημών
The right to the personality is one of the traditional rights, many expressionsof which are subject to infringement through the various functions and services of theInformation Society. The infringement of personality on the Internet is a burning issueas to the phenomenon of technological convergence of informatics,telecommunications, and audiovisual means, within the framework of digitalizationand that of the impact of broadband applications, which led to the affiliation oftraditionally separate legal fields, as well as to the easy access of all social groups tothe Internet and to its widespread use. As a result, the current issue of the protectionof personality is becoming more pressing day by day with the fast technologicaldevelopments, while it concerns everyone. Under this prospect, it would be outdatedto approach the concept of personality in the light of liberalism, which considerspeople as separate and distinct individuals and protects their personality only fromstate interference.Comparing the different aspects of the right of personality between the Greeklegal order and the international legal system (ECHR, ICCPR), one can observe aconceptual asymmetry not only as to the classification and the content of the rightsrelated to personality, but also as to their interpretation and their restrictions, whichmake it difficult to harmonize the Greek legislation and jurisprudence with theinternational binding decisions. In addition, the ECHR seems to be inspired by amore liberal spirit regarding the Greek legal protection approach, which hindersfurther the harmonization of the Greek legal system with the jurisprudence of theECHR.The first part of this paper focuses on the analysis of the various forms ofinfringement of the personality on the Internet and, by extension, the expressions ofpersonality that fall within the provisions of the general clause of article 57 of the Civilcode. So, the various aspects of the right of personality, as it is entrenched in theGreek legal order, that is as a “framework right”, should be subject to furtherprocessing in legal practice and in relation to cases involving the Internet, in order toensure an adequate coverage and to guarantee a specific degree of protection of thepersonality within the virtual world of the Internet. More explicitly, the diffusion of thepicture of a natural person on the Internet without his consent, which constitutes aninfringement of the right of the person to his own image, does not face any particularlegal treatment in cyberspace compared to what happens with the infringement ofthis right in the real world. Still, it is a fact that the development of digital photographyhas made this phenomenon too recurrent and particularly unrestrained. As regardsthe attack on a person’s honour on the Internet, one can notice that the sanction ofthe offence of libel is limited in cyberspace, as far as chat rooms are concerned,since users are not identifiable with their real name, their posts are not stored online,in an area easily accessible to the public. On the contrary, when there is a seriousattempt of smearing of a particular person’s honour, in other words when a targeteddocument is produced, from which arises an intention to insult, and when thisdocument is uploaded and stored on the Web, then the sanction of the offence oflibel applies to the Internet too. The right to informational self-determination, that isthe right of a person to choose when, to whom and under what conditions he wouldshare personal information, may have been defined before the development and thewidespread of the Internet, but this is where its implementation appear to be neededthe most. The reason is that the platform of the Internet itself allows the unlimitedstorage of information on everyone and any individual can easily access thisinformation through search engines. On the other hand, the “identity theft” has neverbeen so easy and so frequent than on the Internet. Moreover, because of theanonymity provided by the Internet, it has been rightfully argued that “even a dogmay be hiding behind an online profile”.In the end of the first part, reference is been made to the right to exploitelements of the personality and its violation on the Internet. Although this right isacknowledged almost unanimously in Greek legal theory, it has however not beenequally admitted in Greek jurisprudence. This is due to the fact that the right ofpersonality is considered to be inalienable in Greek legal order, which of course doesnot meet the everyday practice. That is why the proposal of the enactment of aspecial legal regime has come forward, since the general clause of article 57 of theCivil code is sparse, as well as the provisional implementation mutatis mutandis ofthe stipulations on the protection of intellectual property, as it applied until theintroduction of this article. As for the use of the right of publicity, it is widely applied inthe Internet where the images and graphics of a webpage play a significant role inincreasing its visitors. Besides, the existence of online fan clubs and the use of thename of famous people for commercial purposes are subject to the implementationof this right on the Internet or, respectively, to its infringement in cases where suchactivities are conducted illegally by a third party aiming at profit.However, when the Internet is considered as a part of Mass media(part II), anad hoc normative framework for the protection of personality is put in place throughthe specific regulations and ethical rules of Mass media, insofar as its implementationtends to adapt to the functions of the Internet. In that way, the rights of personalityare better protected since the ad hoc normative framework facilitates the indication ofthe subjection and by extension the establishment of proof in certain cases ofinfringement. In addition, a proper balance standard between the protection ofpersonality and the freedom of speech is achieved. Therefore, the justifiable concernto inform the public, which is mainly acknowledged to the Mass mediarepresentatives, provides, as a reason for repeal of the unjust character of theinfringement, a suitable counterbalance to the Information Society while it constitutes,in association with both the principle of proportionality and the whole jurisprudentialelaboration, the best way for harmonization, as well as the best means of protection,between the right of personality and the right to the freedom of speech, in the case inpoint. Websites that can be reasonably seen as part of the Mass media are thosedealing with information (or those that combine information with entertainment,offering the so-called infotainment), and more specifically the media websites, themedia blogs and the various Internet fora. These websites fall under the protectivescope of the Press and thus the protection of personality seems to be weak in thiscase, because of the freedom of the Press and the undermining of the Greek legalorder toward censorship. Nevertheless, personality is protected when thetransactional obligations of the Press are violated, as well as the right to privacy tosuch an extent that is not tolerable under the legal order. The same applies in thecase of the violation of the right to honour, provided that an intention to slander isestablished. In the context of Internet TV, the protection of personality is moreeffective, although the broadcasting provisions do not particularly apply to the Web,since the widespread of Internet TV is limited so far. It should be pointed out hereinthat the scope of Internet TV does not cover the videos that are stored in websitesand that are played at the request of the user (video on demand); however, thedistinctive feature of television, which can also be seen as a characteristic ofdistinction in this case, is the continuous flow of the program. As regards theimplementation of the law on infringement through the Press in these websites, it isthe most important practical consequence and it is approved only as to the partconcerning the extension of the legal sphere of the persons who, beyond the author’sresponsibility, are liable in full damages, and as to the establishment of the objectiveliability of the owner of a publication. On the contrary, the adoption of a lesser level ofcompensation as mentioned in this enactment, should not be accepted because,although the Internet provides not only Pan-Hellenic but also worldwide coverage,the volume of information made available is huge, while the nature of the Internetplatform is such that the existence of an Internet site does not determine its numberof visitors.On the other hand, the law on the protection of the processing of personaldata aims at the particularization of the right of personality, in order to facilitate itsprotection through a specialized legal framework, especially today with the partialevolution of the traditional concept of privacy, under the influence of technologicaldevelopments, to the right of self-determination regarding information. Personal dataof Internet users are particularly subject to economic exploitation by online privateoperators, while their collection throughout the Web is attempted by varioustechnological means. As a result, the third part of the paper tries to particularize theuse of the rights of the data holders in the context of the Internet. More specifically, itsuggests the adoption by all websites of special bug reports through which the dataowners, i.e. Internet users in this case, will be able to exercise their rights toinformation, access to information and objection. At the same time, the user, in orderto exercise his right to participate to the Information Society, is sometimes forced toreveal personal data himself. Besides, since the user is not in the position tonegotiate the extent of the information he is required to disclose when accessing awebsite, Internet penetration can be compared to contracts of adhesion, such as thetake-it-or-leave-it type. In other words, Internet penetration should be subjected to theprovisions abusiveness. On top of all that comes the publication of personal data invarious websites and particularly in social networking sites. In those different socialnetworks, where millions of users are registered throughout the world, user’spersonal data are widely processed, in many manners, either by the companiesmanaging the networks and their affiliate partners, or by third parties-users.The fourth part focuses on the analysis of the ways of infringement of thedifferent powers (publication, integrity, paternity and accession) of the moral right ofthe author of a work entitled to intellectual property rights, on the Internet. Inessence, the ways of infringement of the copyright on the Web are similar to thoseapplying to the real world; there is just a slight difference in the case of the Internet,where the extent of the infringement is not the same. Among the moral powers of theauthor, the most abused ones are those of publication and integrity of the workentitled to intellectual property protection. More specifically, the power of publicationof the author, in that he can grant access to his work to a new public, on any way orterms he pleases, is infringed not only when the website where it is published isconsidered to be offensive or non-representative of the personality of the author, butalso every time his work is published without his consent. The power of integrity ofthe work, on the other hand, can be very easily infringed with the modern digitalmeans, which allow not only its alteration, against the author’s will, but also thecombination of different works, even the creation of a new, derivative one. In the twolast cases, if judged that there was no intention of slander (actual malice) towards theauthor on part of the Internet user, a balance of interests between the author’s moralright and the freedom of expression of the user is putting forward. In any case,however, the moral right of the author of a work entitled to intellectual property shouldbe updated so as to meet the needs of digital technology, since the strictimplementation of the provisions of the moral right in modern times is consideredineffective. Furthermore, the better protection not only of the author’s moral right butalso of his property right of intellectual property, for which there is a greater interest,comes within the scope of the technological measures of prevention of infringements,given the fact that if a work (in its original form or altered) is uploaded somewhereover the world wide web, even for a short period of time, the revocation of theinfringement is difficult to achieve, since third parties-users who have seen the workcan forward it even after the removal of the initial publication.Regarding the legal treatment of all attacks on personality on the Internet, theoffended has to know the identity of the offender so that he can sue him. However,anonymity is prevalent on the Internet. Thus, even if private operators of the Internetknow most of the time the identity of the users or are aware of their personal data,ordinary users may not have access to the identity of the offender, under the currentGreek legislation. The reason is that the Internet is not only part of the Mass media,in respect of certain of its functions, but also a telecommunication medium bound bythe confidentiality of communications. The removal of confidentiality shallconsequently occur only under specific conditions. Removal of confidentiality,however, cannot be authorized in cases of infringement of personality, except forspecific crimes. In this way, the Greek legal order is strict and turns vested rightsderiving from personality to an empty letter, at a time when these rights cannot beenforced in the context of the Internet, which means that they cannot be claimed incourt and be eventually fulfilled. Besides, because of the conceptual confusion thatexists on the Web between communication and publicity on one hand, andcommunication and privacy on the other, the terms of the procedure of removal ofconfidentiality should be different regarding the Internet alone. Naturally, even if theremoval of confidentiality was expressly institutionalized as to the infringement ofpersonality on the Internet, the step would be significant but nonetheless insufficientin cases where the IP address does not constitute personal data leading to theidentification of the offender. This occurs in cases where the IP address of theprovider of the Internet connection belongs to an Internet cafe or to an Internetnetwork accessible to the public, like the ones available in airports and in centralplaces in big cities. That is why more measures should be institutionalized, such asthe liability of the owner of an Internet site, who should be considered responsible ascontent provider and not as host provider, and who should be vested with theresponsibility of web publication editor. At the same time, procedures regarding theimmediate removal of illegal or offensive material should be established with thecooperation of Internet service providers, based on the model of the DMCA in theUS. In conclusion, as far as the Internet service providers are concerned, they shouldbe held responsible in case they don’t either cooperate in the context of the dueprocedure of removal of confidentiality of illegal material, or they delay the removal ofthe material without any justification. In that way, this work proposes theestablishment of a complete pattern of rules with multiple levels of liability accordingto the persons involved; these rules will strengthen the existing legal protection whichis deficient without them.
Διπλωματική εργασία - Πάντειο Πανεπιστήμιο. Γενικό Τμήμα Δικαίου, ΠΜΣ "Δίκαιο και Ευρωπαϊκή Ενοποίηση", κατεύθυνση Ιδιωτικό Δίκαιο, 2009