Personal Data Protection and Safeguarding Draft Act ● ● ● June 2019 the prior conduct of the person concerned; content, form, and consequences of the publication; and circumstances in which photos were taken (where applicable). A similar approach was adopted by the Inter-American Court of Human Rights which stated:30 [T]he Court must find a balance between private life and freedom of expression that, not being absolute, are two fundamental rights guaranteed by the American Convention and of great importance in a democratic society. The Court recalls that every fundamental right is to be exercised with regard for other fundamental rights. This is a process of harmonisation in which the State has a key role in trying to determine responsibilities and impose sanctions as may be necessary to achieve such purpose. The issue was also addressed by the African Union in the Declaration of Principles on Freedom of Expression in Africa, which state in Principle 7(2) that “Privacy laws shall not inhibit the dissemination of information of public interest”.31 Data Protection and Freedom of Expression The recognition of the need to reconcile competing rights has also been incorporated in international instruments on data protection. The CoE Modernised Convention 108’s preamble states: Recalling that the right to protection of personal data is to be considered in respect of its role in society and that it has to be reconciled with other human rights and fundamental freedoms, including freedom of expression; In the Explanatory Report, the CoE notes the need to balance freedom of expression and privacy rights: Taking into account the role of the right to protection of personal data in society, the preamble underlines the principle that the interests, rights, and fundamental freedoms of individuals have, where necessary, to be reconciled with each other. It is in order to maintain a careful balance between the different interests, rights, and fundamental freedoms that the Convention lays down certain conditions and restrictions with regard to the processing of information and the protection of personal data. The right to data protection is for instance to be considered alongside the right to ‘freedom of expression’ as laid down in Article 10 of the European Convention on Human Rights (ETS No. 5), which includes the freedom to hold opinions and to receive and impart information. Furthermore, the Convention confirms that the exercise of the right to data protection, which is not absolute, should notably not be used as a general means to prevent public access to official documents.32 This balance has also been addressed in other instruments. The European Commission in an impact assessment on the EU’s General Data Protection Regulation (GDPR) noted that: Privacy and the protection of personal data… play a key role for the exercise of fundamental rights in a broader sense. Many of the fundamental freedoms can only be fully exercised if the individual is reassured that it is not subject of permanent surveillance and observation by authorities and other powerful organisations. Freedom of thought, freedom of expression, freedom of assembly and association, but also the freedom to conduct a business will not be exercised fully by all citizens in an environment where the individual feels that each of her or his moves, Inter-American Court of Human Rights, Case of Fontevecchia and d’Amico v. Argentina, Judgment of November 29, 2011 (Merits, Reparations, and Costs). 30 Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples' Rights, 32nd Session, 17 23 October, 2002: Banjul, The Gambia. 31 Explanatory Report to the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, 10 October 2018, paragraph 11 https://rm.coe.int/cets-223-explanatory-report-to-the-protocol-amending-the-conventionfo/16808ac91a. 32 ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org – +44 20 7324 2500 Page 12 of 58