The European Court of Human Rights (ECHR), through its judgment delivered on 21 July 2015 on the case of Satakunnan Markkinaporssi Oy and Satamedia Oy v. Finland, reiterated the position of the court on cases that concern competing interests between right of an individual’s privacy and journalistic freedom of expression.
Background of the Case
Satakunnan Markkinaporssi Oy (“the first applicant”) has been the publisher of Veroporssi magazine since 1994. This magazine mainly published information about natural persons’ taxable income and assets, which is accessible to the public under Finnish law. The first applicant had cooperation with Satamedia Oy (“the second applicant’), where the second applicant provided taxation information of any person upon request through SMS (SMS-service). The database of such information was that published on the magazine.
Subsequently, the Data Protection Ombudsman (DPO) requested the two applicants to cease their activity because the applicants had no right to establish such personal data registers, and the manner in which the applicants processed these personal data was not legal. Yet, the request was ignored.
After the request was ignored, DPO requested the Data Protection Board (DPB) to enforce its request in April 2003, but was rejected. DPO then appealed to the Helsinki Administrative Court in February 2004, and failed again. The ground for the two refusals are the same, Veroprossi magazine had a journalistic purpose and enjoyed derogation provided by the Personal Data Act. The same derogation was also provided for in EU Directive 95/46/EC.
In October 2005, DPO further appealed to the Supreme Administrative Court (“SAC”), where SAC decided to seek a primary ruling from the Court of Justice of EU (“CJEU”) on the interpretation of Directive 95/46/EC first. CJEU, after balancing the right of privacy and the freedom of expression, interpreted that processing of data in public domain could be regarded as journalistic activities only “if the object was to disclose to the public information, opinions or ideas, irrespective of the medium which was used to transmit them”. Following the interpretation from CJEU, SAC quashed the decision of lower courts in September 2009.
SAC agreed that “it was necessary to interpret notions relating to freedom of expression, such as journalism, broadly. However, when balanced against the right to privacy, any derogations to the latter were to be kept only to what was strictly necessary”, and accepted the view of CJEU that “the decisive factor the decisive factor was to assess whether a publication contributed to a public debate or was solely intended to satisfy the curiosity of readers”. In reaching its conclusion, SAC gave the following reason,
“the publication of the whole database collected for journalistic purposes could not be regarded as journalistic activity. The public interest did not require such publication of personal data to the extent seen in the present case, in particular as the derogation in the Personal Data Act was to be interpreted strictly” (Para. 17)
As a result, DPB had ordered the SMS-service to be ceased and the taxation data not to be published in such a large extent, whereas the magazine has not appeared since Autumn 2009.
In February 2010, the applicants decided to appeal against the order made by DPB. The appeal was dismissed later in the Turku Administrative Court and SAC. Thus, the applicants made an application against the Republic of Finland lodged with ECHR on 18 December 2012.
ECHR has made ruling on several issues, and, inter alia, the ruling on the alleged violation of Article 10 of the European Convention of Human Rights (“Convention”) is reproduced as follows. ECHR, first of all, recognized that the order of DPB constituted an interference with the applicants’ rights to impart information pursuant to Article 10 (1) of the Convention. However, ECHR contended that the interference was prescribed by law under Article 10 (2) of the Convention and pursued the legitimate aim of protecting the reputation or rights of others. At last, ECHR re-asserted the ruling of SAC and quashed the appeal after looking into the proportionality of the interference. ECHR agreed that “the public interest did not require such publication of personal data to the extent” and that the applicants “were not prohibited generally from publishing the information in question but only to a certain extent”, which made the interference proportional.
This case seems to be another typical case where the right of privacy and freedom of expression compete with each other. However, when you look into the details, one particular point must have grasped your attention, the data at stake was originally made public by the government. The question that follows would be “What is the problem of publishing something which has been originally published?” The ruling in this case seems absurd since what the applicants were doing was to make the data more reader-friendly.
ECHR has not really clarified what the proper way of using some publicly available data is. The only guideline given is whether the alleged activity was conducted for public interest. For instance, if a magazine made an analysis with the data, the article can be of public interest because people can look at demographic patterns or even assess the current taxation policy. Does it mean that publishing the data with some analysis would attract the derogation to apply? If that is the case, how much analysis will be needed? Therefore, it is really hard to draw a line here to determine whether certain publication can be recognized by the law as journalistic activity.
Sigmund Freud famously said that the founder of civilisation was the first person who hurled an insult instead of throwing a rock.
No matter how you feel about Freud, that is a profound piece of insight. Civilisation, and civilisational forces, all involve processes that reduce violence. As Professor Steven Pinker, a leading American linguist and science writer, has also demonstrated in his seminal meta-study of violence, the overall level of violence in our species has been on the decline – even if it doesn’t always feel that way.
The civilisational reduction in violence, however, does not mean the aggressive drive disappears. Instead, it changes form. To explain this, Freud postulated a mechanism of defense called “sublimation”. In chemistry, sublimation refers to the direct transformation of matter from solid into gas without first becoming liquid. This is pertinent to the way Freud defined sublimation as a psychological process: transformation of libido into socially useful activities like high culture or art.
An example can help clarify this.
We know that Beethoven created each of his three most prominent masterpieces after an instance of romantic failure. This was not a mere coincidence. After each heartbreak, instead of succumbing to despair or aggression, Beethoven took all the force of his anguish and directed it into creating music. In other words, he “sublimated” his despair into some of the most sublime pieces of music in human history.
He could have picked any number of destructive or self destructive methods of dealing with his pain, but he chose to sublimate it.
Sublimation is not just about art or high culture, however. Any creative job or activity involves sublimating libidinal and aggressive drives that abound in us profusely. Science and philosophy are the products of sublimation too. As yet another example, think of a master surgeon, performing his surgery with the intricacy of art. He may actually have the psychological makeup of a ruthless murderer. He has, however, sublimated his potentially destructive drive into a most noble activity in the service of society.
We can see why Freud suggests this mechanism as the bedrock of civilisation. In his own example, an “insult” is a sublimated form of “throwing a rock”. Speech, in other words, replaces a physical act of violence, and language becomes the domain of the forces of civilization.
A corollary of this assertion is that sustaining a civilized society requires a guarantee of free expression so that we can bring the constantly accumulating aggressive drives into the realm of expression and sublimate them into the service of society, or at least into something nonviolent. Accordingly, a denial of free of expression, whether brought about by state censorship or through self-imposed repression, leads to an increase in violence.
Think of the generation of Finnish men who came back from the war. Many of them decided never to speak of the horrors they had gone through, and some took refuge in alcohol. The trauma remained untreated and unspoken, reinforcing the characteristic introversion of the Nordic mindset, ever deepening a culture of silence. This in turn created an inability in communication – something that might have affected the following generations as well.
Incidentally, this might be one reason Finland (and other Nordics, too) have a higher rate of domestic violence compared to the EU average despite a high level of gender equality. A handicap in communication. A handicap in expressing painful thoughts and emotions. A handicap in using speech properly – resulting in outbursts of violence.
Such handicap is consequential beyond family affairs, however. Suppressing “dangerous” words that might raise uncomfortable feelings leads, naturally, to avoiding confrontation and controversy in most social interaction.
We can call this, on a lighter note, the “Voldemort effect”: He, whose name shall not be uttered, symbolizing dangerous words that we shall never verbalize lest the fragile Finnish peace and quiet is perturbed!
Perhaps nowhere else can one observe this phenomenon more clearly than in recent remarks made by a Finnish rhetoric expert, Antti Mustakallio, on the issue of “hate speech” sparked by the migrant crisis. In a piece published on Yle Uutiset in January, his advice to the Finnish public was to “keep their mouth shut” if they felt the words about to drip out of their mouth might be hateful.
The irony is not lost here, of course. One would expect a rhetorician to encourage people to sublimate their contempt into language, not to tell them to shut up. However, there is another, more pernicious side to this story. Rhetoricians of this creed, the “experts” who tell people to shut up, generally function as the mouthpiece of totalitarianism (even if this does not directly apply to Mr. Mustakallio).
I know that firsthand because I happen to come from a totalitarian society. I was imprisoned and tortured in Iran because of protesting the religious ruling class and its ideology. I, and millions of Iranian men and women, know how it feels to live under the oppression of a dictatorship that polices your thoughts, your words, and your actions in search for the slightest sign of transgression. I, and millions of Iranian men and women, know how it feels to be silenced by the religious “experts” of conduct, who insist they alone know the way to your salvation. When I hear an “expert” of rhetorical conduct telling me to shut up, therefore, even if it happens in Finland, I am immediately reminded of the totalitarianism I have fled.
Needless to say, Finland is not a totalitarian state. Finland gave me political asylum years ago, graciously opening her arms, providing me with a sense of freedom and security I had never known before, and giving me an opportunity to start healing from my traumas. In time, I have come to love this country like my own, and I have grown fond of Finns as people of integrity and truthfulness. As such, I feel an obligation to voice my concern.
And I shall voice it fearlessly.
Granted, Finland is not a totalitarian state. Granted, Mr. Mustakallio, the rhetorician of silence, is not a mouthpiece of totalitarianism. Finland and her rhetoricians, however, suffer from the Voldemort effect, a collective phobia of expressing anything uncomfortable. Not only can this contribute to higher rates of domestic violence. It can actually steer the society into the direction of totalitarianism – via a simple process of Hegelian dialectic.
Lately we keep hearing of a rise in the occurrence of “hate crimes” against a certain minority group in Finland – unsavory social media statements targeting Islam and Muslims. In response to these hate crimes, the authorities have acted swiftly, prosecuting the “haters” and removing the said social media posts.
Thanks to the authorities’ swift reaction, the country is “safe” again. The perpetrators have been made to “shut up”. The Voldemort effect is preserved, and the society has been cleansed of “dangerous” words. Hopefully, there is no ensuing toxicity either.
Except there is!
Dear Finnish lawmakers! Hate speech does not beget hate. It only expresses the hate that already exists. Suppressing the hate speech, in contrast, reinforces the hatred, spreading it to places beyond your purview.
Suppressing the hate speech will push it underground where it will metastasize and grow. When it comes back – and it will come back – it will come back with added force.
Suppressing the hate speech, and imposing a militant form of political correctness, is partly responsible for the emergence of the orange monkey who shall grab you by the pussy without apology!
Dear Finnish lawmakers! If you force some members of society to swallow the poison instead of spitting it out, the poison will spread to an ever larger part of society, resulting in an ever larger support for the only group that gives them a voice: the far Right!
That is the Hegelian dialectic at work: You are unwittingly strengthening those you aim to weaken. You are unwittingly fostering the growth of the far Right!
If this pattern continues here and elsewhere in Europe, Europe’s little Trumps will grow stronger, challenging the very existence of the EU.
Dear Finnish lawmakers! Please do not give the far Right the opportunity to present themselves as the martyrs of free speech! Grant absolute freedom of expression to all, and let the public counter hate speech with reason! We can deal with speech, but we cannot deal with the consequences of suppressed speech.
The current migrant crisis is a “crisis” at all because it personifies the encounter of two different cultures. To manage the crisis with minimal harm, you must allow the clashing cultures to engage in discourse freely. You must allow an open and boundless conversation about Islam and Muslims to take place no matter who offends who. Denying this possibility means having to deal with an exacerbated situation later.
I plead with you to de-criminalize hate speech entirely. To paraphrase Freud, let insults be hurled so that stones won’t be thrown!
I plead with you to choose the way of sublimation and civilisation. Let Finland overcome her phobia of uncomfortable conversations.
I plead with you to protect absolute free speech above all else.
Writer Ali Sadeghi is doing a master’s degree in economics in Aalto University.
His previous education has been in economics and psychology. He is Iranian, and came to Finland as a political refugee in 2008.
Photo: Harri Kuokkanen / CC unsplash.com