A First Amendment Threat from Abroad

By Kirtley, Jane | American Journalism Review, December 1997 | Go to article overview
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A First Amendment Threat from Abroad


Kirtley, Jane, American Journalism Review


The U.S. will come under pressure from Europe to restrict the collection and distribution of personal data.

When law partners Samuel D. Warren and Louis D. Brandeis first came up with the "right to be left alone" in 1890, American journalists feared that the right of privacy would threaten their ability to gather and disseminate truthful, accurate information about individuals who object to media scrutiny.

As it turned out, journalists, not their news subjects, held the trump card. Whenever the right to speak or publish was threatened, they brandished the First Amendment and, as often as not, newsworthiness and free speech prevailed.

That's not the case outside the United States, as European initiatives to impose restraints on journalists in the wake of Princess Diana's death--far more serious than similar efforts in this country--have shown. But paparazzi-bashing is just one symptom of the fundamental differences between European and American attitudes toward free speech that lurk beneath the surface.

The First Amendment's unconditional prohibitions on government constraints on speech have no counterpart in European law. There, everything is relative. A case in point is the 1950 European Human Rights Convention.

The convention might best be described as Europe's primary statement on human rights law. It is the template from which the European Court of Human Rights crafts its rulings, which are binding on all member states.

Article 10 recognizes a right to freedom of expression, but unlike the First Amendment, the right is subject to "necessary" conditions or restrictions to protect national security, public morals and the rights and reputations of others, and to prevent crime, disorder or disclosure of confidential information. Free expression is just one "fundamental right" among many, and member states are encouraged to pass laws that restrain speech in order to advance other "fundamental rights"--like privacy, recognized in Article 8.

In that spirit, the European Union in 1995 issued its Directive on Data Protection to address privacy concerns raised by the use of computers for storing and transmitting data. The directive governs the collection and dissemination of "personal" data not only within Europe, but the transfer of data to countries outside the European Union as well. Nations failing to provide "adequate" data protection after October 1998 will not be allowed to exchange information with their European counterparts.

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