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Monday, December 5, 2022

(COMMENT) The #NPM case: human dignity between the right to publicity and the right to privacy

By: Gašper Blažič

I may have already mentioned the event I am about to describe. It happened sometime in 1986 or 1987, when I was in the first grade of elementary school. I was also enrolled in a so-called music club that was held once a week. In one of these classes, I excused myself for the following week, saying that I will have surgery in a hospital.

Of course, I did not know what would follow. A public hearing has begun on what kind of surgery it is. Because apparently, I was obliged to explain it to everyone who was present. Well, it was a urological operation (yes, and I really wonder who would be willing to explain this publicly at the age of seven!), but the teacher present there obviously thought that this was “public information”. So, the others have a “right to know”, the logical consequence of this is that I am obliged to tell – so, there is no right to choose. I struggled with all possible excuses, but the “drilling” got worse and worse, and all this only increased the tension and unease among the other participants of the music class, asking why I am bluffing, and just to tell the truth. Because it is everyone’s business, not just mine. In short, totally unpleasant.

I do not know how I got out of that grip, but it left an unpleasant aftertaste. My enthusiasm for music school thus ended very early. I did not mention this event at home, but I tried to suppress it in my subconscious. And I forgot about it pretty quickly. But that subconscious resistance remained. When I reflect on this almost forgotten event today, I somehow realised that such an act was connected with the socialist pedagogical doctrine of the time, where privacy and intimate space did not exist. Everything that was private was also public. Everyone had the right to know everything about everyone (at least in theory). You will probably also remember that the dominant logic in dealing with aggressive students was that the attacker and the victim should shake hands because they are “equally guilty”. Because there is no personal moral responsibility in collectivism.

And if such an event, as I experienced myself, had happened in independent Slovenia, it would have been a scandal that would reverberate in the media for a long time. But that was normal back then. And there was no point in telling the parents about it. Whoever was punished at school was usually punished at home. However, if the parents accidentally got into a dispute with the school, it was clear who was right – and there would probably also be a response from the social services, which have to take care of the child so that he does not grow up in an environment where he could be influenced by “bad upbringing”.

Between privacy and public

Today, the right to privacy and intimacy seems like a kind of good that we received from Western civilisation. Almost twenty years ago, the Act on the Protection of Personal Data was adopted in Slovenia, followed by the Act on Access to Public Information. The laws complicated many things, but at the same time, a clearer awareness emerged of what an individual’s right to privacy is. Which was not exactly self-evident before, as we only slowly got used to the innovations that overrode the socialist concept of individual rights. And in order for the Slovenian state to implement the laws in this area as best as possible, some fifteen years after independence, it introduced a new thing: the office of the Information Commissioner. A person who we previously knew from television screens, but who later worked in Darko Horvat’s network, was appointed to this position – that was Nataša Pirc Musar.

At that time, no one knew what to expect from her. And it soon became clear that it can be very difficult if the role of an arbitrator, who arbitrarily decides who violates the law, is taken over by a single person (not, for example, a tribunal, as in the case of the Constitutional Court). And in fact, the transitional quasi-leftist (actually comrade-capitalist) elite established several such bodies, where the main role was played by persons who received the necessary support of the parliamentary majority. For example, human rights ombudsman, defender of the principle of equality, president of the commission for the prevention of corruption (which is supposed to be a collective body), etc. And most importantly, the law has also given at least some of them direct public powers and the discretion to issue fines to those they deem to be breaking the law. And if this was followed by an appeal to the court, the latter usually confirmed the decision of the information commissioner’s office.

Publication of correspondence between a judge and a journalist

Here is where the story gets interesting. Namely, about how many times did the Information Commissioner N.P.M. judged that the media you are reading now (of course, I mean both the printed edition and the website) violated the right to privacy. I will not describe all the examples; I will describe only one that stands out very much. It happened in 2011, that is, more than ten years ago. At that time, the weekly Demokracija published the contents of the scandalous correspondence between the judge (now deceased) Franc Dobrovnik and the journalist of Mladina Igor Mekina. It was, of course, about content that was in the interest of the public, as it happened that judgments were often “leaked” to some specially selected media. We finally began to realise how problematic the Slovenian judiciary is a few years later during the staged Patria trial. The friendly correspondence between Dobrovnik and Mekina was only a stone in the mosaic. And apparently not so insignificant, because in 2017, when Dobrovnik died, Mekina wrote two obituaries for the latter: a shorter one in Mladina and a longer one on the online portal Portalplus, where the author called the late judge a kind of “whistle-blower” in the ranks of judges, as would help both the “left” and the “right”.

And what did Mekina and Dobrovnik correspond about? Mainly about how to write about the Patria affair. Which only confirms the coupling between the judiciary and the media under the tutelage of the same godfathers. This is also why the information officer’s reaction followed very quickly. First, one of her employees reacted, saying that we made public the e-mail addresses of the participants in the correspondence. Which, of course, is just an excuse, because in reality it is about two e-mail addresses, which are very difficult to fall into the domain of privacy. The e-mail address of Mladina’s journalist is anyway publicly published on the world wide web, and the other e-mail address is (was) the official e-mail address of a public official. According to the editorial staff, the employee stopped the process. Well, at least that is what we thought…

However, when the article about the politically biased actions of the commissioner NPM was published, revenge quickly followed with the abuse of public office: information commissioner Nataša Pirc Musar fined our journalist Petra Janša and editor Metod Berlec 1,660 euros each, and the publisher Nova obzorja, as the publisher of Demokracija with a fine of 8340 euros. As if to say, it was about the publication of the private correspondence of two individuals who were not even asked if they allowed the publication.

After Demokracija appealed to the district court in Kranj, in 2014 the latter merely confirmed the decision of the information commissioner. In doing so, it denied Igor Mekina’s claims in advance that Judge Dobrovnik is some kind of a whistle-blower. If that were indeed the case, the court would very likely have decided differently. And if correspondence between a judge and a journalist was really so unproblematic, the political underworld would calmly ignore this publication.

When constitutional judges say STOP

But now be careful: almost eight (!) years after the event and five years after the district court’s verdict, the Constitutional Court granted the request for the protection of legality and annulled the previously mentioned verdict. The Constitutional Court (which in 2019 was already heavily left leaning!) assessed that the district court, in ensuring the judicial protection function from the constitution, did not consider the criteria and requirements that the constitutional court had already explained several times in its decisions in the case of a collision of two equal rights, the European Court of Human Rights and the Court of Justice of the EU. The regional court merely approved the position of the misdemeanour authority (i.e., the information officer or her office), which did not fully perform the required assessment according to the aforementioned method, even though it perceived that it was a collision of two rights. The criminal authority did not consider the importance of investigative journalism from the point of view of the journalist’s right to freedom of expression and, on the other hand, to inform the public about matters of public interest, which is undoubtedly the conduct of the judiciary, the Constitutional Court wrote.

In other words: the constitutional judges gave a thumbs up not only to the regular judicial branch of government, but also to Pirc Musar. Which did not happen just once.

But even before the Constitutional Court even issued this decision, Pirc Musar’s name had already appeared among the board members of the Oštro Institute, a notorious online portal that allegedly deals with the control of other media. Especially to those who wrote critically about the LGBT agenda. With sharp questions in the style of the inquisition, they also tackled the editors of Demokracija. As is known, the main name of the Oštro portal is Anuška Delić.

They “protect the privacy” of transitional sinners, and expose class enemies

So, if we draw a line, we can conclude that Nataša Pirc Musar, in her role as information commissioner and with political motives, “protected the privacy” of a judge and a journalist of a protected media outlet – in a constitutionally objectionable manner. All of which is all the more glaring in light of the fact that some media have taken to invading the privacy of some individuals in a rough way. For example, at the farm of Franc Kangler, and the break-in at the home of Nina Krajnik, where they also harassed her elderly father-in-law. On the other hand, the defenders of freedom of expression should have spoken up when the leading representatives of the Levica party and the March 8th Institute publicly threatened the media and even individual users of social networks with criminal charges. And even when the investigative commission led by Mojca Pašek Šetinc wanted to obtain all the business data of media publishers that report critically on the current government.

And finally: the right to privacy was talked about a lot in the case of the Fotopub affair, as well as in the case of Janković’s horrific abuse of the pharmacist. She is still being talked about now due to the fact that SDS MP Andrej Hoivik took a photo of the damaged parliamentary bench of Levica MP Nataša Sukić, and the latter claims that he took a photo of her computer. She is probably familiar with the case of Jani Božič, who was criminally prosecuted for taking pictures of SMS messages on the phone of Alenka Bratušek (when she was elected as a candidate in 2013) and had to retreat to Great Britain. Meanwhile, the media do not even have access to the basic data of the medical record of one of the highest political officials – we are talking about the notorious President of the National Assembly, Urška Klakočar Zupančič. But almost a decade ago, a Slovenian tabloid spread rumours about the alleged mental illness of one of Janez Janša’s children – all privacy advocates bit their tongues at the time.

The author of these lines has also already been accused of violating privacy, namely many years ago in one of the meeting halls of the National Assembly building, when he was cleaning up his things and by the way overheard the rather agitated conversation of the then SD MP Majda Potrat with Eva Irgl (SDS). It was just after a rather important session of the parliamentary commission for human rights and petitions. When the SD MP noticed that I was still present in the hall, this got her angry, saying that I was “eavesdropping”. The embarrassment was considerable, as I was not prepared for such an attack. I informed the then President of the National Assembly, France Cukjati, about the MP’s bizarre attitude towards representatives of the media.

Aleš Musar is not running for president of the republic…

The plan to expose NPM’s business octopus and thereby also part of her privacy was created in the “pigeon house”. At the same time, it is not superfluous to mention the remark of the former president of the republic, Milan Kučan, that Aleš Musar has nothing to do with these elections, because Nataša Pirc Musar is running for the position of president of the republic, and not her husband. According to this logic, the privacy of Zoran Janković’s family should also be protected since he and not his sons are running for mayor. In short, the public should not care whether the Ruska dača company was financed with taxpayers’ money or not. Because this is apparently a private matter of the Pirc Musar family.

And finally: we have already talked about the powers of the President of the Republic. He does not impose a sentence, but he can adopt a decision on pardon. And by appointing ambassadors and various officials (and nominating constitutional judges), he has much more influence than the proverbial “ficus in the office” (preferably without built-in eavesdropping devices). NPM was first proposed by the now deceased Janez Drnovšek for the position of information commissioner. For the second term, Danilo Türk. If she were to occupy this position herself, it would mean the continuation of the previously mentioned bad practice of state functionaries with a high influence factor and with the discretion of the arbitrator, who, based on his political preferences, decides to restrict media freedom. For all those who are at the low start of a new wave of suppression of all media, which are not among the supporters of the current government and the coalition, the election of NPM would be a signal that they can brutally implement their agenda.

This is also why this year’s November 13th will be a much more fateful date than it seems at first glance.

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