The Protection of Personality Rights against Invasions by Mass Media – Case of Slovenia

Abstrakt

Like most European states, the Republic of Slovenia is lost in a chaotic labyrinth of legal approaches to personality rights. This thesis is applicable on a practical level as well as a theoretical one. The main characteristic of the legal issue “personality rights v. freedom of the press and the public’s right to know” today, is that the list of decided cases on all instances in this subject matter is becoming longer and longer since Slovenia’s independence. Recent decisions of the Supreme as well as the Constitutional Court on the role of legal precedents are crystallizing some of the most important problematic areas of this fi eld – the legal basis of personality rights, as well as freedom of the press and the publics right to know, analyses of the weighing of interests, classifi cation of personality rights, classifi cation of the “board” right to privacy, and so on. From the theoretical standpoint, the last dozen years, which may also be named the “third period” in the scope of research on personality rights, has however been rather poor compared to the “fi rst and second periods”, which themselves were characterized by lack of legal practice1. These two eras were, on the other hand, marked by theoretical works of an extremely high standard by the academic, Alojzij Finžgar. The scholar must be mentioned whenever personality rights and legal theory are linked. Finžgar had already started his scientifi c research into the issue of personality rights in the late fi fties2. His last article3 was published in 1989, which ended 40 years of theoretical eff orts in this interesting and important area of law. Finžgar also was a professor of “Personality law“ (Osebnostno pravo, Personlichkeitsrechts) at the Faculty of Law at the University of Ljubljana for more than 40 years. Along with other important works on personality rights, which stand as Slovenias theoretical cornerstones as well as theoretical masterpieces4 he wrote an extensive report based on an international survey on personality laws and mass media5. The scolars main contribution was Osebnostne pravice (Personality Rights, Personlichkeitsrechte), published in 1985 by Slovenian Academy of Sciences and Arts, which also contributed to European legal culture. This work still has a tremendous impact on legal practice. The other great scholar, prof. Bogomir Sajovic, who was also the mentor of the author of this article, provided very important contributions to personality law especially with his theoretical analyses of “general rights of personality”6. The main characteristic of the “personality rights v. freedom of expression” issues in Slovenian law is that both personality rights and freedom of the press are guaranteed by the constitution. Art. 35 (entitled “protection of privacy rights and personality rights”) states that the inviolability of human physical and psychological integrity, as well as his privacy and personality rights, is guaranteed. This rather confusing constitutional diction is closely analyzed in the following chapter. The basic fundamental starting-point is that Slovenian law guarantees “special personality rights” (posebne osebnosne pravice, besondere Personlichkeitsrechte). Among others, the following are already specifi ed in the constitution: physical and psychologist integrity and “others” personality rights as well as the right to privacy. The right to privacy has however three “roles” in Slowenian law: 1. Personality rights (osebnostna pravica, Personlichkeitsrecht), with their legal foundation in the constitution that is protected by civil law. 2. Constitutional rights (ustavna pravica, Grundrecht), protected by public law. 3. Human rights (človekova pravica, Menschenrecht), protected by international law (primarily with art. 8 of the European Convention of Human Rights and Basic Freedoms). The following personality rights, which can also be analyzed as aspects of a broad right to privacy, are guaranteed and also protected directly by the constitution (and of course also by civil law): the inviolability of ones home (art. 36), secrecy of correspondence (art. 37) and the right to protection of personal data (art. 38). The aspects of the listed rights that we are interested in are only the private ones. Art. 39 of the constitution, on the other hand, guarantees freedom of expression – In civitae libera linguam mentemque liberas esse debere. Or in the Slovenian version: “The freedom of expression of thoughts, speech and public appearance, as well as that of the press and other forms of public informing and expression is guaranteed. Anyone is free to choose, receive, to spread information and opinions. Everyone has the right to receive any information of public interest, for which he is legally entitled, except in cases prohibited by law”. The rights guaranteed by art. 35 and those guaranteed by art. 39 from a classic collision of interests and rights. The weighing of those interests according to the concrete factual situation is “still” the only method of determination whether the rights of personality are illegally infringed.