What does the right to privacy include?

I. Overview of public figures and their privacy rights

(A) the meaning of public figures

The concept of public figures originated from 1964 American Sullivan v new york Times. In this case, Justice Brennan first put forward the concept of "public official" and established the principle of "true malice". Three years later, in the case of "Football Coach v. Veteran", the court put forward the concept of public figure. Chief Justice Warren said: "Public figures refer to the extent to which their views and actions on public issues and public events involve citizens, which is often equivalent to the extent to which government officials' attitudes and actions on the same issues and events involve citizens. "[1] The judgment in this case shows that the court holds that all public figures are related to public interests.

197 1 "Rosenbloom v. Metropolis Daily Co., Ltd." established the principle of "truthfulness and malice" applicable to any individual reporting public interests, and later became an important part of the news legal system.

In the west, public figures have become a special term, referring to important social figures who are widely known in a certain range and closely related to social interests. According to the explanation of scholar Dale R. Spencer, public figures include government officials, candidates for public office, inventors, writers, athletes, art performers, criminals, defendants and other easily noticeable figures.

In China, public figures, also known as social celebrities, first appeared in the report of Fan Zhiyi v. Oriental Sports in 2002, which refers to important social figures widely known to the public because of their special talents, achievements, experiences or other special reasons, and closely related to public interests, including senior party and government officials, famous scientists, artists, movie stars, sports stars, famous entrepreneurs, social activists, model workers, criminals and so on.

Theoretically, according to the subjective will of the actor, it can be divided into voluntary public figures and involuntary public figures. From the perspective of public law and the special requirements for public officials, it is divided into political public figures and social public figures; The federal court of the United States also divides it into complete public figures and limited public figures from the time attribute.

(B) the meaning and characteristics of the right to privacy

Privacy, also known as the secret of personal life, refers to the secret that citizens are unwilling to reveal and know for others in their personal lives. Such as personal diary, living habits, property status. The right to privacy is the personal right of citizens to their own personal life and their freedom of personal life, which fundamentally excludes interference from others and is also a kind of personality right.

China has not yet established the right to privacy, but the protection of citizens' right to privacy has been stipulated in China's current legal system. For example, Articles 39 and 40 of the Constitution and the Supreme Court's Answers to Several Questions on the Trial of Honorary Cases clearly protect the right to privacy as the right to reputation.

Compared with ordinary citizens, the privacy of public figures is characterized by:

1, public welfare. Because of their special social status and influence, public figures have been widely concerned and interested in their lives and work.

2. Related to the public interest. Because public figures have extensive social popularity and certain social influence, their work, life, words and deeds are closely related to the public interest, and even constitute an important part of the public interest.

3. Restrictions on legal protection. Where there is power, there is obligation, and where there is power, there is restriction. As a special group of society, public figures have more power and status, and the exercise of their rights is also restricted, so the scope of legal protection in privacy is smaller than that of ordinary citizens. When the right to privacy conflicts with the public interest, the balance of law will tilt towards the public interest.

4. Conflict with the right to know. The right to know refers to the freedom and right of citizens to know and obtain information. According to its content, it is divided into political right to know, social right to know, public right to know and individual right to know. The right to know about political power refers to the right enjoyed by citizens to know about state affairs, the activities and background information of state organs and their staff; Social right to know is the right to know all social public institutions and public organizations; The public's right to know refers to the right to know public figures; The right to know personal information refers to the right of citizens to know other people's information and materials related to themselves. Privacy focuses on the protection of personal information, which is conservative, closed and self-controlled. The right to know focuses on the public's understanding of various social information, which has the characteristics of openness, openness and extroversion, and the two are naturally opposite. When this kind of conflict is reflected in public figures, it is more prominent and sharp.

The conflict between the right to privacy and the right to know of public figures.

1, the conflict between the knowledge regime and the privacy rights of government officials. The knowledge regime gives citizens the right to participate in democratic politics and supervise state organs and their staff. Government officials are entrusted by all citizens to exercise public power and manage public affairs, and their power exercise is based on the recognition of all citizens. Therefore, public officials do not want private information that may reduce their prestige to be known to the public. Personal privacy information such as citizens' age, education background, health status, property source and social relations belongs to ordinary citizens, but for government officials, it is a necessary condition for them to correctly exercise their power and perform their duties, which is related to citizens' right to vote and recall.

2. The conflict between the public's right to know and the privacy of public figures. Public figures are widely known and profit mainly through the media. They are the focus of people's attention and the targets of interviews and reports. They and their words and deeds are newsworthy, and the probability of being violated is much higher than that of ordinary citizens. Ordinary citizens are eager to know the public figures reported by the media. In order to attract and meet the requirements of the public's right to know, the media will report the information of public figures more widely, and a little carelessness will infringe on the privacy of public figures. In 2002, Fan Zhiyi sued Oriental Sports Times, which highlighted the conflict between the public's right to know and the privacy of public figures.

Second, the violation of the privacy rights of public figures.

Definition of (1) range:

In judicial practice, the disclosure of the privacy of public figures should be limited to the understanding and evaluation of private information related to their social status and social reputation. Private information required by the identity, status and identity of other non-public figures, which is not within the reasonable interests of the public, does not violate social interests, national interests and commercial interests, and should belong to the scope of privacy.

1. Infringement of pure private information. For example, the privacy of the body is the most private and sensitive area in private life, which belongs to private information. Exposing others' personal privacy and naked photos without authorization will damage their reputation and degrade their personality. With the development of social economy, people's concept of private rights has become increasingly strong, but there are more and more cases in which journalists violate the privacy rights of public figures for different motives. We can get a glimpse from "Taiwan Province artist Bai Bingbing's daughter was mutilated by kidnappers" and "the scandal that artist Carina Lau's early nude photos appeared in Oriental Weekly".

2. Invasion of private space. Any private space and place, whether tangible or virtual, belongs to the category of personal privacy. Space privacy includes not only houses legally occupied by individuals, but also spaces legally controlled by individuals, such as dressing rooms and telephone halls. Public figures also have the right to privacy in these private spaces. No one is allowed to intrude into his private and legally occupied houses and other spaces without his permission, nor is he allowed to illegally peep into his personal space by means of infrared scanning, high-powered telescope detection and telephoto photography.

3, malicious invasion of private life, seriously derogating from the personal dignity of others. This behavior has gone beyond the boundaries of public interests, and belongs to malicious injury based on personal purposes, and the perpetrator should bear the responsibility.

It can be seen that the objects of public figures' privacy right include personal information, personal private activities and personal secret space. Personal information includes living conditions, physical, physiological or psychological conditions, social relations and other information. These are not willing to disclose to outsiders. Personal private activities refer to activities completely related to occupation. Personal secret space includes personal material space such as one's residence and lounge, and spiritual space such as personal diary and past events. Although the privacy of public figures should be protected in the following aspects: (1) A house should not be illegally invaded or harassed; (2) Private life is not monitored; (3) Communication secrets; (4) Husband and wife's sexual life is not interfered or investigated by others; (five) private affairs unrelated to social politics and public interests and the performance of their duties. However, in order to prevent individual political public figures from relaxing their strict requirements and doing things that affect the image of state organs or governments or even violate the law and discipline without supervision and management, the state has taken effective measures and established an all-round interactive supervision network among organs, families and society. If the public supervises the illegal activities of these public figures (such as gambling and whoring) for more than eight hours, it is an exception to protect the privacy of public figures on special occasions. Although equality before the law is the basic principle of modern legal system, it does not rule out that under some special conditions, social subjects give up this right (or are presumed to give up) or because of the need of public interest, the law cautiously forces some subjects to give up this right. When the court delimits the right to privacy, it should consider the necessary coordination between the right to privacy and other rights, and the two rights should make appropriate concessions to each other when coordinating. This is the need to reduce social collision and guide the harmonious development of society.

(2) Definition of illegal act

Invasion of privacy is generally a way of doing things. Privacy is a citizen's personality right, its nature is absolute, and any other person has an inviolable obligation. This legal obligation is an obligation of omission, and it is illegal to violate this legal obligation. Spying on private information, harassing private activities, invading private areas and revealing private secrets are all forms of behavior. In real life, the phenomenon of illegal invasion of privacy can be summarized into three categories. That is, (1) illegally collecting, disseminating and using personal information; (2) interfering with, tracing, tracking, taking photos, photographing and other illegal activities to disrupt private activities; (3) Peeking at and disclosing personal diaries, physical defects and correspondence, illegally searching other people's houses, luggage, schoolbags and bodies, breaking into citizens' houses and bedrooms without authorization, installing eavesdropping and surveillance devices, and infringing on the private sphere.

(3) Determination of damage facts

The damage to privacy is manifested in personal information, personal space and personal activities being snooped, monitored, peeped, invaded, searched, interfered, disclosed, made public and publicized, which is the basic state of privacy damage. The basic form of privacy damage is a factual state, which generally does not have the objective external performance of tangible damage. This aspect is similar to the fact of reputation damage, that is, it does not need to be shown as a real damage result. As long as the fact that privacy is damaged exists, there is the fact that privacy is violated. The fact of invasion of privacy has the characteristics of multiple damages. Property loss manifested as privacy damage is also an invasion of privacy. However, these damage facts are not the basic forms of damage facts that infringe on privacy, and whether they affect the damage facts is not an infringement of privacy, but only affects the degree of infringement and the scope of damage. As a factual element of civil liability for infringement of privacy, it is enough to have its basic form, that is, the fact that privacy has been damaged.

Subjectively, the perpetrator who violates the right to privacy must have subjective fault, intentional and negligent, mainly intentional. The following acts shall not be regarded as intentional:

(1) In order to exercise the supervisory power stipulated by the Constitution, the news and other media should be exposed appropriately.

(two) in order to safeguard the national collective and individual interests, legitimate complaints and accusations;

(3) Criticizing unhealthy trends in society and safeguarding public interests and social justice order;

(4) In order to exercise the right to participate in politics, manage and employ employees, you can know and investigate some personal information.

(4) Identification principle

1, principle of giving priority to social interests. "The occupation of public figures is not only their own, but also social and public, and the public has the right to know their own occupation and personal situation related to occupation" [3]. The so-called "senior officials have no privacy" abroad is based on this reason. Generally speaking, western countries require senior civil servants to publish family property and personal income and deposit them in public archives to ensure that they can be supervised by the public at any time. China's criminal law also stipulates two crimes: the crime of huge property of unknown origin and the crime of concealing overseas property.

2. The principle of public order and good customs and the balance of interests. Personal information should not be known to the society according to the principle of public order and good customs, and it is the object of privacy protection.

From the perspective of interest analysis, public figures have obtained unparalleled material and spiritual benefits from society. In order to achieve interest balance and social fairness, meet public interests and preserve public interests, they sacrificed or transferred some privacy interests. With the help of media reports, public figures have gained more and more prestige, thus gaining more benefits and more opportunities to protect themselves. When self-interested information appears in the media, they can make a statement to clarify it at any time, and their contribution to public affairs information is also passive-they are only required to be more tolerant of media reporting and supervision than ordinary people. Therefore, news media should be allowed to expand their privacy fields to meet the public interest. Therefore, the privacy right of public figures is more reasonable than the public's right to know.

3. The principle of satisfying the reasonable interests of the public. When most people have an informed desire for someone or something, they have a public interest. The interests of many public figures often come from public concern. They are famous through the media and enjoy more social resources. Benefiting from public attention and media publicity, some information about public figures has lost its protective significance in order to meet the reasonable interests of the public.

4. The principle of inviolability of personal dignity of public figures. Personal dignity is a constitutional right. As citizens, public figures also enjoy the right of inviolability of personal dignity. When exercising the public's right to know, it involves the privacy of public figures and does not aim at hurting their personal dignity.

Third, suggestions to improve legal protection.

"Lawmakers are not superman, he can foresee all possible situations and make plans for people's behavior accordingly. Although he tried his best, he would still leave many legal gaps and blind spots. In this sense, any law is riddled with holes. " [4] Without exception, China's laws also have defects and deficiencies in protecting and restricting the privacy rights of public figures, which brings a lot of inconvenience to the trial of such cases and needs to be improved.

1. Protect privacy as an independent personality right. China's General Principles of Civil Law does not establish the right to privacy as an independent personality right, but indirectly protects citizens' right to privacy through judicial interpretation and protection of reputation. This method lacks independence. When a citizen's right to privacy is violated, which does not constitute an infringement of his right to reputation, the law can do nothing. At the same time, China's laws only stipulate the right to privacy in principle, lacking maneuverability. Therefore, in order to confirm that the right to privacy is an independent personality right of citizens in the Constitution and the Civil Code, the protection of citizens' right to privacy should form a direct protection with the Constitution as the core, the Civil Code as the focus, and criminal law, administrative law and other laws and regulations as supplements.

2. Establish exceptions to protect citizens' privacy. The protection and restriction of the privacy of public figures has a constitutional basis and is stipulated separately by legislation. The Constitution stipulates citizens' right to criticize and suggest state organs and state functionaries, as well as the right to appeal, accuse or report, but there are no specific operating rules. Therefore, legislation should be perfected and rules for protection and restriction should be formulated.

3. Accelerate the pace of news legislation. China's press law has been brewing for a long time, but it has not been promulgated. With the acceleration of the rule of law and China's entry into WTO, it is imperative to improve the news legislation. It is an inevitable requirement for the development of journalism and social progress to stipulate the protection of the right to supervise news public opinion, the realization of citizens' right to know and the protection and restriction of public figures' right to privacy in legal form, and it is also in line with international practice.

4. Accelerate the legislative pace of the information disclosure law. In order to better solve the conflict between the political power and the privacy rights of government officials, more than 40 foreign countries have promulgated unified and complete information disclosure laws, such as the Freedom of Information Law of the United States (1966), the Information Disclosure Law of Canada (1982) and the Information Disclosure Law of public institutions (1996). However, in China, only Guangzhou, Shenzhen, Shanghai and Chengdu have successively promulgated the relevant laws on information disclosure, but the formal legislation on government information disclosure has not yet been promulgated, and the bill on government information disclosure is still in the pipeline. Therefore, we should learn from foreign legislative experience and formulate an information disclosure law in line with China's national conditions.

5, the establishment of important officials' personal property and major personal matters declaration and publicity system. In order to ensure that party and government officials perform their official duties in a clean and efficient manner and that the selected cadres have high public prestige, it is necessary to publicize the personal knowledge, work experience, property and family members of the main party and government officials at all levels before taking office, listen to the public's feedback and then give them comprehensive consideration. This publicity system will promote the formation of a supervision mechanism for party and government officials to be honest in politics according to law.

6. Establish a franchise system for private exposure of public figures. Public figures' crimes, violations of laws, disciplines, violations of morality and other bad behaviors are subject to exposure franchise, and the mass media can publicly disclose them. Public figures, whether in official activities or private life, will affect the public interests, especially their bad behavior will pose more serious harm to social public order and good customs. News media have the responsibility to disclose it in order to guide social moral demonstration and value orientation, and to warn and educate it.