言论自由与隐私权

伦敦大学学院教授Eric Barendt讨论了言论自由和隐私权之间的微妙平衡。

言论自由和隐私权都属于基本权力,在《世界人权宣言》中得到同样的承认,在诸如《欧洲人权协定》等国际协定中和许多国家的宪法中也得到承认。他们之间的相互关系又是怎样的呢?

普遍认为这两种权力一定会相互冲突,有时候是这样的,最常见的是当一些小报和博客想披露某一名人的私生活时——特别是她的性生活中最私密的细节——她选择对外保密只有她自己和几个朋友知道。但是通常隐私权对言论(或表述)自由是必要的。朋友和情侣不能公开交往,除非他们确认他们的谈话不会被人偷听,不会被政府归档,不会被大众媒体乱刊登。甚至政治性谈话也需要隐私权,如公务员和部长、联合政府的合作各方,在讨论敏感的政治问题时;他们或许不想对大众披露——至少是当下——他们的谈话内容。有些法院,最明显的是德国宪法法院就坚持认为,他们可以被当成隐私而受到保护。

但是应该如何解决隐私权和言论自由之间的冲突呢?当这些冲突升级时,法律是不可能保护两方权力的——两者都不可能得到绝对的保护。我的观点是我们应该问一下,在特例中发言的内容有什么价值,拿它与隐私权的重要性比较,如果给予言论自由以优先权,就牺牲隐私权。如果说该言论——比如报纸上或博客上的一篇文章——对重要的政治和社会辩论有贡献,又没有过度地侵扰个人私生活的私密细节——比如说,只是附带地说了下她的饮食偏好,或她出席晚宴时穿了什么衣服——那么言论自由就应该优先于隐私权。但是,如果文章披露的是某名人性生活中私密的细节或病史,那么隐私权就应该优先。因为我们很难看出这类曝光对重要的公众辩论会有什么贡献。

当然,在这一领域里也有相当困难的问题。当一个政治家进入公众生活时要牺牲多少隐私?假设一家小报披露,她在大学期间吸食过毒品,并为那条消息的发表进行辩护,理由是选民有权知道某人的道德记录,而此人参加选举会成为议员吗?另一方面,即便一些政治家有权知道某些隐私,能拿出来辩论吗?否则除了那些愚钝的,抹布不认的傻子,还有几人能进入公众生活吗?进一步说,几人,是否是我们当中的一位,就有着无可指责的道德记录吗?我觉得,把隐私作为重要因素说成是合理的已经到了虚伪的程度。我敢说,所有人都有权对陌生人说,“我们身体健康,精神很好”,即使我们在那天早些时候被告知,我们病得很厉害,而且我们的合作伙伴要终止我们之间的关系。隐私权给了所有人一个权力,你可以掌控什么样的消息透露给什么样的人。

过去几年里,英格兰法院屡次要求报界不要刊登那些毫无公众利益,同时又侵犯了名人个人隐私的文章,特别是披露了那些足球运动员离开球场后的表现。后来出现了实实在在的问题,这些命令对披露了那些球员姓名和行为细节的博客和推客来说是否奏效。博主可以声称那是言论的个人自由,而报界则争辩说那篇文章不受版权限制,因为因特网上都有。另一个实在的问题是,解决这些冲突的事情是否应该留给法院,或者应该由那些非正式的审理委员会或机构,如英国报业投诉委员会来处理呢?要取得法院的强制令要花几千英镑,大多数人花不起。但是这些棘手问题的存在不应该导致我们完全放弃隐私权,因为没有它的有效保护,更多的个人自治权和私密权也就没有了。

Eric Barendt是伦敦大学学院退休的法学教授,著有经典作品《言论自由》(Freedom of Speech,牛津大学出版社)。她是言论自由大讨论项目的顾问。

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读者须知:自动翻译由Google翻译提供,虽然可以反映作者大意,但不一定能提供精准的译意。

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    The difficulty with this discussion – in fact much of the discussion in this debate – is that freedom of speech tends to be treated as though it has a special status to which other rights are largely expected to accord.

    In reality, freedom of speech is an important right, but there are others, and sometimes they will come into conflict. It follows that the status and value of free speech can only be sensibly discussed if one has a general framework for resolving conflicts of rights.

    Reason tells us that there must either be a hierarchy of rights, with rules to resolve conflicts of rights of a similar order, or else all rights must be treated as being on the same plane, with our deciding conflicts of rights according to the circumstances of each case.

    The difficulty presented by the latter approach is that rights cease to have any real value because they are not guaranteed of enforcement. It is also a manifestly deficient argumet because not all rights are equal. For example, the right to have a state funded university education, or the right to drive a car are clearly not on the same level as the right to not have one’s life taken, or the right to free speech.

    In ‘Two Concepts of Liberty’ Isaiah Berlin wrote that:

    “The sense of privacy itself, of the area of personal relationships as something sacred in its own right, derives from a conception of freedom which, for all its religious roots, is scarcely older, in its developed state, than the Renaissance or the Reformation. Yet its decline would mark the death of a civilisation, of an entire moral outlook.”

    Sadly much of the discussion of free speech to be found here assumes that the right to privacy should be limited to accommodate a broader right of freedom of speech.

    Perhaps the converse approach might be preferred.

    If we believe that freedom of speech, and privacy (the freedom to be left alone) are on the same level, then perhaps privacy should, as a general rule, prevail.

    Berlin said as much when he argued that, “If the liberty of myself or my class or nation depends on the misery of a number of other human beings, the system which promotes this is unjust and immoral.”

    Surely the invasion of privacy, or the assault on individual dignity, which is implicit in many expansive conceptions of freedom of speech, can only result in the sort of misery Berlin feared.

    Surely to key to resolving conflicts of equal rights is to be found in the manner in which they are exercised. If one right is actively exercised (that is, in such a fashion as to intrude on the rights of others), and a conflicting right is passively exercised, we must surely favour the passively exercised right over the actively exercised right.

    The reasons for this are simple. A passively exercised right seeks to detract from none, to make no inroads on the liberty of others. It must be protected and preferred. Were we to do the contrary, then we would favour those who intrude on others, and we would ultimately pitch society into ceaseless conflict.

    If one accepts this, then it is not the nature of the subject which should determine the extent (or limits) of free speech.

    Perhaps we should look at other factors, such as whether we are truly dealing with the free advocacy of ideas, or merely an unfettered commentary on the lives of others.

  2. I agree but to some extent. You have considered privacy and freedom of speech in case related to public figures. They do not comprise the whole state. I do not deny that these things don’t happen with them, but the majority should be given the priority first.
    Points in which u have considered politicians should be given the privacy is considerable, but, I, explain it as,
    They are elected just to serve their public, who choose him so he can listen to everyone and take a mutual decision in favor of everyone. he do needs the privacy just for a fixed period of time , so he can glance upon the subject and come up with either a good result or some genuine option. Now the point is that whether we have the right to speak freely and put our ideas in public, or the law is just I black and white.
    Coming to the point of privacy. As our elders say that we live in a democratic state can put our ideas thinking and wish outside but that point should not create any problem for others. But critical cases are of public figures or so called celebrities , They do need the privacy but just in their personal life . Coming publically makes them the figure of public , they represent what public is, was or want to be ? So Privacy and freedom of speech, when considered in case of common people have a limit but when it is considered for public figure . After a certain time interval privacy should not be there. This is the ultimate base of many social problems which we are facing today. If privacy of public figures is made transparent then a lot of problems will be solved automatically.
    At the end, I would just like to summaries that privacy is limited for somebody’s personal life and when it comes to public , it should be made transparent along with freedom of speech.

  3. I sympathise with the views expressed here but recognise that once the cat is out of the bag it is out and cannot be put back. What is required is higher standards in those who have access to and control of sensitive personal information of people who are exposed to public scrutiny. It is true that nobody is perfect so a fitting reprisal for a person who decides to make public somebody else’s sensitive personal secrets might be to open up their private life to public scrutiny if it could be done. That should make people think twice before deciding what really is in the public interest should it not?

    The point about the cost of legal action is well known and true but is it justified? Taxpayers have already paid for Her Majesty’s Court Service. Why are they charged again for making use of it? Is that not double taxation? What happened to the noble aims of access to justice? Why are solicitors permitted to ask for payment before they have done any work? If they are paid for the time taken they are free to extend that as they will as I have witnessed in action. Is it not time to examine and review the justification for these things? Why are solicitors permitted to treat their clients as if they cannot be trusted to pay bills? What plumber gets paid before doing the work?

    What I suggest is missing is a moral compass as we have witnessed in the conduct of far too many members of what may be generally described as high society society receiving over generous payments from the public purse not to serve the public but deprive them of what is their due by corrupt practices, non disclosure of information they are entitled to receive but are refused it when requested. That is what the Freedom of Information Act was designed to rectify but more effort is being put into hiding information than disclosing it.

    What part has been played by the Established Church of this country in setting the example of proper moral conduct and standards in society. I suggest it has not and is part of the problem.

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“言论自由大讨论”是牛津大学圣安东尼学院达伦多夫自由研究计划下属的学术项目。

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