Protection of privacy in Latvia

/Tikai angļu valodā/
Respect for a person's personal rights is a sign of a highly developed society because a human being is a value per se. Privacy is an integral part of a person's general civil rights in the legislation of Latvia.

Personal civil rights are non-material civil rights, but that does not mean that rights are not valuable and not protected by law. Civil law does not regulate only material relationships between persons. These rights are closely connected to a person', and they are granted as basic human rights for any member of society'.

Every person has "subjective rights to his own person", and this is an absolute right. That means that nobody has the right to infringe upon a person's freedom and rights. Every person is inviolable under this right which pertains to one's physical being, freedom, dignity, reputation, credibility, expression of one's own individuality, etc3.

Understanding of privacy
The understanding of legal institutions such as the right of per­sonal privacy dates to the end of the 19`h century. To the majority of legal researchers and professionals, the first and the "most influential article ever to appear in a legal journal"' was an article written by Samuel Warren and Louis Brandeis. Their article "The Right to Privacy" was published in the Harvard Law Review, Vol. IV, December 15, 1890, No. 5, pp. 195 - 220.5 These judges recognized the need for protecting a person and "for securing to the individual what Judge Cooley calls the right "to be let alone ""' because recent (late 19`h century) inventions and technologies had created more possibilities for invading "the sacred precincts of private and domestic life"'.

The need to protect privacy from illegal invasion arose not just because our technical level developed but because our understanding of the value of person and his or her rights increased as well.

Neither Latvian legislation nor legal theory uses the general term "privacy". Unfortunately, the Latvian language does not have a common term which means the same as the English term "privacy". Thus, authors use different words to describe the concept of privacy 8.It is not good style to use this English word both in legal terminology or legislative acts and in daily speech. The author hopes to coin such a term in the near future.

At any rate, there is no legal definition of "privacy" yet. One reason could be that Latvian legal science and jurisprudence (i.e., court decisions, or so-called court practice) in recent years did not recognize personal (non-material) rights as compensable by material awards. If something does not have a real legal remedy, it becomes valueless in the eyes of society.

However, recent legislation in Latvia recognizes and protects many rights which are called "privacy" in Western legal theory and practice. For instance, on October 15,1998, the Latvian parliament recognized fundamental human rights in Chapter 8 of the Latvian Constitution (Satversme); this chapter ensures that the state will recognize and protect the fundamental rights of a person in accordance with this Constitution, the laws and international agreements binding on Latvia.

The Satversme protects the right to life (Article 93), liberty and the security of a person (Article 94), honour and dignity (Article 95), the inviolability of one's private life, place of residence and correspondence (Article 96), freedom of expression (Article 100), freedom of scientific research, artistic and other creative activity (Article 113), etc. Thus we can see that privacy is protected as a general constitutional right in Latvia. But that does not mean that Latvian laws recognize privacy as the general personal right "to be let alone"' or "the right to be left alone"". Unfortunately, it is too early for our court to recognize such privacy expressions as "a right to oblivion or a right to be forgotten"" .

Privacy in Latvia is also protected by civil law, criminal law, administrative law and many specific laws, such as the Personal Data Protection Law, Advertising Law, Law on Trademarks and Geographical Indications on Trademarks, etc.

Privacy as such is new legal institute in Latvia, and in our juris­prudence we see no evidence that courts recognize and respect privacy as a specific right.

However, after a decision of the Senate", new activities in Latvian jurisprudence show signs of reversing this situation. According to the Senate's decision, Latvia recognizes as compulsory, ipso facto and without special agreement, the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention for the Protection of Human Rights and Fundamental Freedoms". That means that the European Con­vention on Human Rights and decisions of the European Human Rights Court, particularly those regarding the protection of privacy, are directly applicable to Latvia.

Protection of different kinds of right to privacy Privacy of the home
The right to privacy of the home is protected by the Satversme (Article 96) and Criminal Law (Article 143). Traditionally, the right to privacy of the home has been conceived as the right to control physical access to the premises which are owned, rented, or otherwise lawfully occupied by a person. In a conceptual sense, violation of the right to privacy of the home means any kind of physical access to the premises against the will of the person who lives in it. Article 143 of the Criminal Law states that if a person illegally enters a residential unit against the will of the person residing there, the applicable sentence is deprivation of liberty for a term not exceeding two years or custodial arrest, community service, or a fine not exceeding 40 times the minimum monthly wage. If a person commits the same act by resorting to violence, threats or impersonation of a state official, the applicable sentence is deprivation of liberty for a term not exceeding four years or a line not exceeding 80 times the minimum monthly wage.

The residential unit (premise) protected under this provision in­cludes houses, rooms or apartments, a countryside cottage, or practically any space that is used as a person's residence or warehouse.

Privacy of personal life
The Satversme grants everyone the right to the inviolability of a private life. Enforcement of this protection is provided, inter alia, under the Law on Information Accessibility, the Personal Data Protection Law, the Law on Archives.

The Law on Information Accessibility states that information on the private life of a physical person is not just information of limited accessibility (Subsection 4, Section 2, Article 5), but it states that the law generally protects information about the private life of a physical person.

Ordinarily, the mass media are the greatest violators of private life. They are interested in publishing something spicy about a person's life because in this way they can attract more attention and increase circulation. Article 7 of the Law on the Press and Other Forms of Mass Media specifically mentions that use of the mass media to interfere in physical persons' personal lives is prohibited and is punishable in accordance with the law.

On the other hand, the personal lives of ordinary people and state or public officials are not equally protected. Society has a legitimate interest to know more about the state president's personal life. That is important because that person makes important dayto-day decisions that are based on the trust of society. It is impossible to distinguish when such person is acting as a private person and when as a state official.

Any documented information about a person, including infor­mation about personal life, qualifies as personal archives. In accordance with Section 3, Article 2, of the Law on Archives, the archives (documents) of physical persons are their private property.

Right to personal secrets
Every person has a personal secret - information that normally is not in the public domain. Confession has value only if the disclosed information will be kept secret, as in the attorney-client relationship.

The Criminal Law has a general clause concerning the legal protection of personal secrets. Article 145 of the Criminal Law states that if a person intentionally discloses personal confidential information about another person, if that has been done by a person who by virtue of his or her position or employment must keep the information entrusted or communicated to him or her in confidence, the applicable sentence is custodial arrest, community service or a fine not exceeding 20 times the minimum monthly wage.

Certainly, negligent disclosure of another person's confidential information is also a violation of personal secrets, and that person may protect his or her rights by civil remedies.

Many persons have a legal and contractual obligation not to disclose confidential or strictly personal information. For instance, Article 50 of the Law of Medicine states that information about the treatment of a patient, diagnosis and prognosis of the disease, as well as information that medical personnel have acquired during the course of treatment about the private life of a patient or his/her closest relatives, is confidential. The Law of Medicine lists only five exemptions when doctors have a legal obligation or right to disclose that information to specific persons and in specific cases determined by law. For example, information on a patient can be furnished to other medical personnel so that they can reach their medical goals, to the Medical Commission for Health and Working Abilities Expertise (VDEAK) or the Inspection of Control over the Quality of Medical Care and Working Abilities Expertise, or to the courts, police, public prosecutor's office, State Children's Rights Protection Inspectorate (inspectors), orphan's court (rural district court) and those institutions which conduct inquiries only upon a written request from such institutions if there is a permit signed by the manager of the medical institution.

Article 7 of the Law on the Press and Other Forms of Mass Media specifically states that mass media are prohibited from publishing commercial secrets and patent secrets, as well as information on citizens' health conditions, without the consent of their owners.

Personal Correspondence
Personal correspondence is also a kind of personal secret. Cor­respondence is the exchange of information between persons. Of course, like a personal secret, communication with another person is strictly private. Thus, personal correspondence is protected as a kind of personal right.

The above-mentioned right is generally protected by Article 144 of the Criminal Law. If a person intentionally violates the confidentiality of personal correspondence or other information by sending transmissions over a telecommunications network or by intentionally violating the confidentiality of information and programs provided for use by means of electronic data processing, the applicable sentence is community service or a fine not exceeding five times the minimum monthly wage.

Persons who operate postal or other telecommunication servic­es have a special obligation not to disclose information concerning personal correspondence. Article 8 of Postal Law states that it is prohibited for employees of the postal service to divulge information about items sent by physical persons and legal entities. This prohibition also applies to employees of the customs service who take part in customs clearance, and it remains valid even after the dismissal of an employee from the job.

The law also imposes legal obligations on the mass media. It is prohibited to publish the contents of citizens' correspondence, telephone conversations and telegrams without the consent of the addressee and the author or their heirs (Article 7 of the Law on the Press and Other Forms of Mass Media).

Protection of honour and dignity
The reputation of person is a very important non-material, personal right. Violation of this night is invasion of a person's rights and

personhood. A person has the right to seek remedies for defamation. The mass media are prohibited from publishing information which offends or slanders the honour and respect of any legal entity or physical person (Article 7 of the Law on the Press and Other Forms of Mass Media).

Article 2352a of the Civil Law states that all persons have the right to claim through court proceedings the retraction of information that offends their honour and respect if the spreader of such information fails to prove its truthfulness.

If the information offending the honour and respect of the person has been disseminated in the press, then in the case of its noncorrespondence to truth, the information must be retracted in the press. If the untruthful information offending the honour and respect of the person is contained in a document, that document must be replaced. The court determines on a case-by-case basis the procedure for rectifying untruthful information.

The injured party has the right to claim monetary compensation from the violator. The amount of compensation is determined by the court, and this compensation is considered as moral damages. Of course, the injured party also has the right to claim damages.

Personal honour and dignity are protected not just by civil remedies. The Criminal Law provides protection in cases of invasion of a person's dignity. Article 156 states that if a person intentionally defames or demeans the dignity of a person orally, in writing, or by actions, the applicable sentence is custodial arrest or a fine not exceeding 10 times the minimum monthly wage. If a person knowingly and deliberately distributes untrue and defamatory statements about another person in a public manner (bringing into disrepute) in printed or otherwise reproduced material or orally, the applicable sentence is custodial arrest or a fine not exceeding 20 times the minimum monthly wage (Article 157). There are specific remedies if the violator commits intentional defamation or brings someone into disrepute in the mass media; the appli­cable sentence is deprivation of liberty for a term not exceeding one year, custodial arrest, community service or a line not exceeding 30 times the minimum monthly wage (Article 158).

Data protection
On March 23, 2000, Latvia adopted the Personal Data Protec­tion Law. The purpose of this Law is to protect the fundamental human rights and freedoms of natural persons, in particular the inviolability of private life with respect to the processing of data regarding natural persons (Article 1). Unfortunately, the existence of this law does not mean that protection of personal data is recognized by legislators as including the protection of personality rights in general or privacy in particular.

The law protects personal data against unlimited collection, re­cording, use and dissemination. The purpose of this law and other legislative acts is to create a regulatory framework which applies not only to the public and administrative sector but also to the private sector governing the collection, processing and use of personal data (Article 3).

Article 6 states that any physical person has the right to protect his or her personal data. That means that the law indirectly recognizes that every individual has rights concerning his or her own information, and that is a step toward protecting a person's privacy. But that does not mean that the subject of these data is their exclusive owner. General information that is a part of personal data is also necessary for other persons or society.

The law creates a general principle on personal data protection that addresses the rights of data subjects and other persons' rights or legitimate interests. For example, the general rules of this law do not apply if personal data are processed for journalistic, artistic or literary purposes. Yet such processing of personal data is not excluded from any legal framework or protection. Journalists and artists have an obligation to respect the right of persons to the inviolability of their private lives and freedom of expression in every way (Article 5).

With regard to privacy, it is up to a person to decide how far to allow others to intrude upon it. Any collection or use of personal data is allowed if the collector has consent from the data subject (Article 7). Without permission, a system controller has an obligation to provide the data subject with the following information unless it is already available to the data subject: 1) the designation, or name and surname, and address of the system controller; 2) the intended purpose and basis for the personal data processing; 3) the possible recipients of the personal data; 4) the rights of the data subject to gain access to his or her personal data and the possibility of rectifying such data; and 5) whether providing an answer is mandatory or voluntary, as well as possible consequences of failing to provide an answer (Article 8).

The law states that in order to protect the interests of a data subject, a system controller is obliged to ensure that 1) the personal data processing takes place lawfully; 2) the personal data are collected in accordance with the intended purpose and to the extent required; 3) the personal data are stored so that the data subject is identifiable during a given period of time, which does not exceed the time period prescribed for the intended purpose of the data processing; and 4) the personal data are accurate and that they are updated, rectified or erased in a timely manner if such personal data are incomplete or inaccurate (Article 10).

The law allows a system controller to process personal data for purposes other than those originally intended if that does not violate the rights of the data subject and if it is carried out for the needs of scientific or statistical research only in accordance with the conditions mentioned in Articles 9 and 10.

The data subject does not lose control of his or her own data after permission is given. A data subject has the right to obtain all information that has been collected concerning himself or herself in any system for personal data processing unless the disclosure of such information is prohibited by law (Article 15). Also, a data subject has the right to obtain information concerning those persons who within a prescribed time period have received information from a system controller concerning this data subject. That means a data subject has the right to know who processed his or her personal data. He or she has the right to actively influence the content of his or her own data, including the right to delete or correct all or part of the data. For example, a data subject has the right to request that his or her personal data be supplemented or rectified, that their processing be suspended or that the data be destroyed if the personal data are incomplete, outdated, false, unlawfully obtained or no longer necessary for the purposes for which they were collected. The law requires the system controller to rectify inaccuracies or violations of personal data without delay and to notify third parties who have previously received such processed data if the data subject is able to prove that the personal data included in the personal data processing system are incomplete, outdated, false, unlawfully obtained or no longer necessary for the purposes for which they were collected (Article 16).

The law grants a data subject the right to object to the processing of his or her personal data if they will be used for commercial purposes (Article 19).

There is a specific regulation concerning collection and processing of specific personal data which indicate the race, ethnic origin, religious, philosophical or political convictions, or trade union membership of a person; there is also a regulation about providing information as to the health or sexual life of a person. The law regards these data as sensitive personal data (Section 8, Article 1). Processing of sensitive personal data is prohibited except in cases specified by the law (Article 11). It is necessary to receive written consent from the data subject for the processing of his or her sensitive personal data. Processing of sensitive personal data without written permis­sion of the data subject is allowed in only a few cases. Such special processing of personal data is covered by regulatory enactments that regulate legal relations regarding employment, and such regulatory enactments guarantee the protection of personal data. The processing of sensitive personal data is allowed in cases when the data subject is not legally or physically able to express his or her consent, but the personal data processing is necessary to protect the life and health of the data subject or another person. Also, data processing without written permission is allowed in the following cases:

  -personal data processing is necessary to achieve the lawful, non-commercial objectives of public organizations and their associations if such data processing is related only to the members of these organizations or their associations and if the personal data are not transferred to third parties; 
 -personal data processing is necessary for the purposes of medical treatment, is carried out by a medical practitioner or a medical treatment institution and an adequate level of protection of personal data is ensured; or 
 -the processing concerns such personal data as are necessary for the protection of the lawful rights and interests of natural or legal persons in court proceedings.

Processing of personal data related to disciplinary and adminis­trative violations or judgments in civil matters is allowed only by officials authorized by state or local government institutions which are entitled to process such data (Article 12).

Advertisements
It is no secret that the likeness of any well-known or famous person, like any well-known name trademark or sign, has signifi­cant commercial value". The Advertising Law, which was adopt­ed by Parliament in 1999, provides protection for invasion of privacy and misuse of things that belong to or describe others.

This Law clearly states that it is prohibited to describe, use or otherwise mention without permission any physical person (such as a private person or official) or his or her property (Subsection 4, Section 2, Article 4). That means that the Law grants the right to keep the private sphere free from any commercial use in advertising.

Moreover, the Advertising Law grants protection of personal rights not only for physical persons but also for entrepreneurs. It is prohibited to use the name, family name, title or other identification mark (including trademark) without permission (Subsection 6, Section 2, Article 4). Additional protection of the personality and individuality of entrepreneurs is granted by Subsection 7, Section 2, Article 4, of the Law, which prohibits the representation of a text, slogan, visual image, sound or other special effects of other advertisers without permission. Similarly, it is prohibited to perform any I kind of action which can confuse or mislead a consumer about an advertiser, product or service.

Protection of the personality of children
A child is the subject of rights. If a child has rights, is he or she a personality? The answer is yes. Children have the right to have their personal rights protected, including their personality. In the Children's Rights Protection Law, there is specific legal protection of children against invasion of their personality.

Article 8 defines a child's rights to individuality: a child has the right to maintain his or her identity. The child has this right from the moment of birth.

Children also have other freedoms. Article 13 states that a child has the right to express his or her own thoughts freely and to receive or to provide any kind of information for this purpose; a child also has the right to be heard, as well as the right to freedom of thought and religious freedom. Only the parents have the right to determine the religious persuasion of a child.

The Law grants protection regarding the use of information about a child. Article 71 states that information acquired about a child by an employee of a childcare and upbringing, educational, social aid or other institution or by an employee of a state or local government institution in the course of executing professional duties is confidential; information that can in any way harm the development of the child or impair his or her psychological balance may not be divulged.

The Law grants specific protection regarding the furnishing of personally acquired information about a child who has become the victim of a crime or who is a witness, as well as information that can harm the child immediately or in the future. The Law prohibits dissemination of such information.

It is also prohibited to use for selfish purposes information pro­vided by a child.

There are additional limitations for mass media concerning in­formation about a child. It is prohibited to interview a child or to furnish to the press or other mass communication means information about a child who has committed a violation, who has become the victim of unlawful activity or who is a witness unless the child himself or herself wants to divulge the experience to the public, his or her parents or other legal representatives of the child agree to this, and the involved parties or the court, during the time of certification or investigation, do not object.

Remedies
Of course, any right has value only if this right has been recognized and legally protected by the court. It is important to know, first, what kind of legal remedies an injured person can demand from the court, and, second, whether these remedies satisfy the plaintiff.

We can classify legal remedies into six groups. The first reme­dy provided by law is recognition of the rights of the person and determination of the breach of the person's rights. Civil Procedure Law grants anyone the right to protection in court if he or she is injured or if his or her civil rights or legitimate interests are challenged (Section l, Article 1)-that is, if there is any violation of any legal right, including the right to privacy.

Interruption of the breach is the second remedy. To prevent that breach from occurring again, the injured person has the right to claim a prohibitory or mandatory injunction as the third remedy. A mandatory injunction-for instance, publishing a correction-is very popular in cases of breach of honour and dignity.

The fourth remedy is a sanction. Any criminal or administrative sanction plays an important role in restraining a violator or some other member of society. But if we want to recover the injured person's rights, it is very important to provide full compensation to the injured person. Compensation for material damages as a general remedy is also applicable in cases of violation of privacy. In accordance with the dominant viewpoint in legal theory and jurisprudence, four preconditions are necessary to prove damages". These four preconditions are as follows: (1) unlawful behaviour (act or omission); (2) the existence and specific extent of damage; (3) a causal connection between unlawful behaviour and the damage caused; and (4) the wrongdoer's fault (culpability). The aim of compensation for damage is to restore the creditor's previous status quo (restitutio in integrum), i.e., condition before the breach".

It is not possible to prove material damage in all cases, and material damage does not necessarily result from a violation of privacy. More often it is a result of moral distress or other forms of moral trauma as in other cases where a personal (non-material) right of a person is breached. In these cases, the best way to recover an injured person's rights is to provide material compensation (award) for non-pecuniary loss (non-material damage). This is the fifth legal remedy. The court has the right to determine such an award when it is impossible to provide another reasonable legal remedy for restitutio in integrum".

At present, Latvian courts recognize material compensation (award) for non-pecuniary loss (non-material damage) as an exception and only in cases strictly provided for by law". Privacy as such is not defined by law, and thus the law in general does not provide a direct possibility to receive compensation for non-pecuniary loss in cases where privacy is breached.

Unfortunately, lack of material compensation for non-pecuniary loss it is not a problem in Latvian jurisprudence alone. The way courts determine the amount to award for non-pecuniary loss in cases where the law requires them to do so has often been criticised".

Last but not least is the sixth remedy which is provided by law but which is not so popular in Latvia-a claim of unjust enrich­ment. Latvian Civil Law contains a general statement which says that no person shall be entitled to benefit unfairly to the detriment and at the cost of another (Article 2391). In such cases, the law grants the injured person the right to demand that the violator return the profit so gained (Article 2391) or any property (Article 2389).

Conclusion
Of course, in such a short article it is impossible to completely discuss all legal regulations concerning the protection of personal privacy in Latvia. I hope you will find that from legislative point of view, Latvia has numerous legislative acts that protect the personal, non-material rights of a person. But we certainly need to develop our legal understanding of privacy as an important personal right and to strengthen its status through jurisprudence.

Also, we have a lot to do in expanding material compensation for non-pecuniary loss as a general legal remedy in cases of invasion of privacy.