The right of divulgation as a form of the right to privacy

• 1.    Introduction

• 2.    The Concept of the right to privacy

  The right to privacy is one of the basic, inalienable and absolute human rights of every individual, which ensures the integrity and dignity of humans, and in order to preserve the secrecy and freedom of their private lives. The right to privacy protects three types of interests: a) a person’s interest in the autonomy of decision-making in intimate and personal matters; b) the interest of the individual to protect himself/herself from disclosure of personal circumstances; c) the individual’s interest to be protected from unfounded surveillance by the authorities (Dimitrijević, 2011, p. 202) and other data collections. sector, often for commercial purposes.

• 3.    Review on international documents thtat regulate right to privacy

  • 3.1.    The right to privacy in the Universal Declaration of Human Rights

    On the subject of the right to privacy, we emphasize the importance of, we can say, the founding document on human rights – the Universal Declaration of Human Rights from 1948. (Universal Declaration of Human Rights, 1948) The right to privacy is recognized in the preamble itself, which states the reasons for adopting the Declaration. Then, the Right to Privacy is explicitly stipulated in Article 12 of the Declaration: “No one shall be subjected to arbitrary interference with his/her privacy, family, home or correspondence, nor to attacks upon his/her honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (Universal Declaration of Human Rights, 1948, art. 12). However, the Declaration does not guarantee complete freedom from interference in private life, but only freedom from “arbitrary interference”, and accordingly, this standard allows for different interpretations. Please note that this document is of a declarative nature and that its basic purpose and goal is to universally promote the most important human rights and freedoms.

• 3.2.    The right to privacy in the International Covenant on Civil and Political Rights

  The right to privacy is provided for in the International Covenant on Civil and Political Rights from 1976 (International Covenant on Civil and Political Rights, 1976). This document protects the basic civil and political rights of individuals. The Covenant contains the same provision on the right to privacy as the Universal Declaration of Human Rights. It is stipulated that no one can be exposed to arbitrary or illegal interference in private life, family, apartment or correspondence, nor to illegal attacks on honor and reputation (International Covenant on Civil and Political Rights, 1976, art. 17).

• 3.3.    The right to privacy in the European Convention on the Protection of Human Rights and Fundamental Freedoms

  In 1950, the European Council adopted the European Convention on the Protection of Human Rights and Fundamental Freedoms, which in Article 8 recognizes the right to privacy as the right to private and family life: “1) Everyone has the right to have respect of his/her private and family life, home and correspondence; 2) The public authority will not interfere in the exercise of that right, except in accordance with the law and if in a democratic society it is necessary in the interest of national security, public order and peace, or the welfare of the country and for the prevention of disorder or crime, for the protection of health or morals, or in order to protect the rights and freedoms of others” (Convention for the Protection of Human Rights and Fundamental Freedoms, 1950). Although the provisions of the convention itself do not elaborate in detail the issue of individual privacy protection and that rather broad exceptions to the protection of rights are listed, it is obvious that “the convention tried to encompass the general right to individual privacy as one

  of basic human rights” (Klarić, 2016, p. 989). The right to privacy, therefore, guaranteed by Article 8 of the European Convention on Human Rights, allows a person not only to be protected from interference by the authorities but also from interference by other individuals and institutions, including the means of mass communication. The term “respect” covers the protection of the individual against self-willed interference by public authorities regarding his/her privacy, but also obliges the state to actively participate in ensuring this right.¹

• 4.    The right of Divulgation

  • 4.1.    The definition and the regulatory framework of the Right of Divulgation

    Moral rights of the author represent a group of legal rights that are not globally accepted. Among moral rights, the right of divulgation (right of disclosure, right of publication, right of dissemination) is recognized as even more controversial. In fact, the right was so controversial that it was not included in the Berne convention because of this (Kwall, 1985, p. 804). Nonetheless, some believe that this right is implicitly recognized in the Berne Convention through provisions about publication (Radakova, 2001, pp. 69– 70). It was not accepted by the common law countries, but it was also not recognized among all continental countries either. USA does not provide this right, although it introduced some of moral rights both on state and federation level (paternity right and right of integrity), and neither does UK. However, there were instances in which English Courts awarded protection for the right of divulgation under common law. In Pope vs. Curl , case from 1741, Lord Chancellor Hardwicke founded the right of disclosure by recognizing that a publisher cannot disclose work of authorship without the consent of the author since he treated work as joint property of author and publisher (Sirvinskaite, 2010, p. 272). The Canadian legislature to this day stands on this opinion and does not recognize right of divulgation as such, although it treat it as implied by economic rights (Adusei, 2007/2008, p. 4). On the other hand, Germany, for instance, didn’t specifically recognize this right as such until 1965, because it was believed that it was implied by other economic rights of the author (Marković, 1999, p. 177). The country that was the

    cradle of this right is France. It is recognized in Switzerland, Spain, and Italy as well (Radakova, 2001, p. 68). This right was developed from the court cases. There were a few cases where French courts awarded protection to the author’s right to disclose his/her work of authorship: Murate c. Neville from 1546, Marle c. Lacordaie and Marquam c. Lehuby , both from 1845 (Sirvinskaite, 2010, pp. 275–276), or Whistler v. Eden from 1900 (Omondi, 2019, p. 13). In the case of the Cour d’appell in Paris, Carco v Camoin from 1931, the French court held that only the author of the work can decide if and when the work is finished, and therefore whether it should be presented to the public (Hansmann & Santilli, 1997, pp. 136–137). Many definitions of this right were built upon the Carco v Camoin case. According to them right of divulgation is right of the author to decide if the work of authorship is finished and worth showing to the public (Kwall, 1985, p. 5; Hansmann & Santilli, 1997, p. 136; Lee, 2001, pp. 801–802). Other theoreticians emphasize the importance of the moment of publication for the author and therefore regard this right as the right of “publication management”. In their opinion, the right of divulgation enables the author to decide whether should work of authorship be published, as well as where, how, and when it shall be published (Pink, 1994, p. 174). For some, it is right of the author to deny publication of the work of authorship regardless of his/her contractual obligations and the fact that s/he already transferred his/her economic rights. Therefore, it represents an unnecessary burden (Radakova, 2001, pp. 69–71; Hansmann & Santilli, 1997, p. 139; Gibbens, 1989, pp. 455–456). There are different definitions in the legislature as well. According to the French Code of intellectual property, only the author is authorized to divulge his/her work of authorship, and it is only s/he who defines the procedure and conditions for publication (Code de la propriété intellectuelle, sec. L-121-2). German Act on Copyright and related rights stipulates that the author has the right to determine whether and how his/her work is to be published (Urheberrechtsgesetz, sec. 12.). The right of divulgation is recognized in the Serbian Law on Copyright and related rights as well, so it is provided that only the author has the right to publish his/her work of authorship and to decide how it will be published (Law on Copyright and related right, 2009, sec. 16. par. 1).

• 4.2.    The justification and the possible source of the right of divulgation

  There are many explanations on why an author should have the exclusive right to decide if the work of authorship should be disclosed or not. First of all, there is the theory of natural rights. Namely, as God created the Universe s/he is his/her sole master, so the author is the master of his/her work s/he created. It is his/her “natural”, “divine” right to make all of the decisions concerning the destiny of his/her work, including divulgation (Sirvinskaite, 2010, p. 276). There are theories that emphasize the author’s personality as a key point of protection. Under these opinions that derive from Hegel’s and Kant’s philosophy, the work of authorship represents the author’s personality that has been externalized (Omondi, 2019, p. 18). The author has sole discretion to decide in what manner s/he will present and unveil his/her personhood expressed in his/her work (Zhang, 2012, p. 10). Every attack on work of authorship is an attack on the author’s personality, and an author has the right to prevent such an attack and criticism (Davis, 1985, p. 246). Similar opinions state that the work of authorship represents an externalized “social self”, meaning that the work of authorship is not just personality per se , but the author’s personality as perceived by others. Right of divulgation in that system should represent the power of the author to decide whether there should be an externalized “social self” and in which particular manner does author wants to represent his/her “social self” to the public (Simon, 2023, pp. 20–26). Other opinions stipulate that the main protection object is the author’s professional reputation (Zhang, 2012, p. 15). The author discloses works of authorship of certain quality, therefore it is expected of him/her not to create work that is not as good as his/her previous works (Kwall, 1985, p. 25). Similar to these opinions are the theories that perceive the right of divulgation as the right of impression management. It determines the moment when the work enters the financial and commercial sphere (Simon, 2023, p.

Legal positivism declares that each legal norm has its roots in the legal norm of higher legal power. This premise is quite important when we discuss human rights. It is possible to argue actually that every right that is recognized in regulations can be derived from the rights that are enumerated in a constitutional bill of rights or international convention that provides that right. This brings us slowly to the problem of copyright. In most texts, the copyright is usually derived from the constitutional or conventional guarantee of the author’s rights concerning his/her work of authorship. However, this guarantee in most constitutions is limited to recognition of the economic rights that the author has, meaning that his/her right to exploit his/her work shall not be violated. Yet in a number of countries, including the Republic of Serbia, moral rights are also recognized to the author and not just economic rights. It is quite challenging to try to derive moral rights from the constitutional or conventional guarantee of copyright since it is mostly concerned with the author’s right to bear fruits from his/her work. In this paper, we will analyze one of the author’s moral rights – the right of divulgation and try to trace its source back to the right to privacy. In order to prove our thesis, we divided the research into two parts. In the first part, we analyze the right to privacy. We examined the legal basis and development of this right in order to conclude how firmly recognized this right is worldwide. After that, we will try to show that the right to privacy, somewhat more than other human rights, can be recognized in many different manifestations. In the second part of our research, we first examine the definition of the right of divulgation, as well as its comparative recognition. At the end, we will discuss possible sources of the right of divulgation, and examine its connection to the right to privacy.

Therefore, in the matter of international human rights, we observe the relationship between the state and the individual, and such behavior in relation to the individual as practically the behavior of the state itself, according to the standard model of the manifestation of the state (by branches of government, and the behavior of civil servants within their jurisdiction, etc. according to the rules on responsibility of the state). The idea of privacy, as well as the legal formulations presented in the form of the history of the right to privacy, are still the same today. Two characteristics of today’s global society fundamentally affect the understanding and application of the right to privacy – (1) the speed and availability of information, and especially electronic information, and (2) the degree of endangerment of both individuals and states by misuse of information (Rengel, 2013, pp. 32–34). While in the earlier phase of the development of the right to privacy it was perceived that the states that threatened this right are authoritarian and totalitarian, today there is a pronounced tendency to limit or deny the right to privacy also by highly developed democratic, liberal states by referring to the principle of national security.

Publication of information that violates honor, reputation or piety, i.e. it shows the face in a false light by attributing features or properties that it does not have, that is by renouncing the features or properties it has, is not allowed under provided that the interest in publishing information “of this kind information” does not outweigh the interest to protect dignity and the right to authenticity, especially if the publication does not contribute public discussion about the specific phenomenon, event or person in question (Vučković, 2023, p. 225).

According to the provisions of the Covenant, in its basic setting, the right to privacy is consistent. It consists of the right to private life, the right to respect an individual’s family life, the right to respect home and the right to conduct correspondence – communication. All these individual rights additionally branch out into a number of forms. The normative classification of the right to privacy is not the only one. In addition to this classification, a number of other theoretical classifications appear based on different criteria or aspects of people’s lives (Boban, 2012, pp. 575–576). In that manner, for example, we can talk about the protection of the privacy of personal data, the right to the privacy of the body and organism (in the sense of the exclusive and independent decision to undergo medical tests for drugs, AIDS, alcohol, etc.), the right to the privacy of communications, the privacy of the environment. It was precisely on one of the above-mentioned isolated fragments that the Council of Europe convention was created – the Convention on Privacy, as it is popularly called, i.e. Council of Europe Convention on the Protection of Individuals with regard to Automatic Processing of Personal Data from 1981 (Convention on Automatic Processing of Personal Data, 1981). To date, 41 countries have ratified this Convention, Serbia in 2005 (entered into force in 2006). The subject of the Convention is the harmonization of the national legislation of the signatory states with the basic principles and recommendations contained in this document. Respecting the rule of law, human rights and basic freedoms, the Convention aims to connect its members, expand the protection of basic rights and freedoms of the individual, especially the right to privacy, when it comes to the automatic processing of personal data. States are left with the initiative to decide on the content and scope of personal data protection in the process of regulating this matter, with the possibility of expressing and preserving certain specificities. At the same time, each country must adhere to established principles.

Right of divulgation means that only the author is to decide if the work of authorship is finished or not. Only the author can say if his/her work is perfected, since only s/he can tell if it is what s/he imagined. Publishing work that is of no quality or lower quality than usual could severely damage the author’s reputation. Moreover, it could be possible that the author has finished the work and that s/he is satisfied with it, but s/he waits the right moment to present it to the public. The timing of publication could influence the success of the work of authorship greatly. In Serbian and German law (Law on Copyright and related right, 2009 sec. 16 par. 2; Urheberrechtsgesetz, 1965, sec. 12 par. (2)) the author also exclusively has the right to give information or describe his/her work. This also stands for Hungarian law (Sápi, 2020, p. 119). That represents a natural extension, and it is also important for the management of the publication since there is a necessity to announce the work before it is published. This, of course, is important only when an author gives out the original elements of his/her work of authorship, since otherwise this would not represent the divulgation of the work (Marković, 1999, p. 176). The author can only once disclose to the public his/her work. However, if anyone discloses an author’s work without his/her permission, there is legal fiction that the disclosure hasn’t occurred (Sápi, 2020, p. 156). The restrictions of copyright (fair use doctrine) cannot be used if the work of authorship is not disclosed. This stands for Serbian law, as well as for most continental jurisdictions, but it is not universally accepted, nor do all countries provide it in the same manner. For instance, German law provides that it is necessary for work of authorship to be disclosed in order to use restrictions of the copyright, with the exception of the limitation for using work in court or administrative proceedings (Omondi, 2019, p. 95). Therefore, if the author didn’t disclose his/her work, no one can use it without his/her permission (Marković, 1999, p. 223). The restrictions are provided in cases when some interest is more important than the property interest of the author (public necessity, education, public information, etc.). This basically means that the legal system gives more importance to the right of divulgation than the other interests. In addition, it is provided that even when the author transfers his/her economic rights through contract, it cannot be considered that s/he implicitly agreed to divulge his/ her work in such manner. It is necessary that the author explicitly allowed divulgation of the work in contract (Law on Copyright and related rights, sec. 68. par. 2.). However, Japanese legislation, for instance, has the opposite solution: if the copyright was transferred to the contractual party it will be implied that author allowed divulgation (Zhang, 2012, p. 37). This stands for Hungarian law as well (Sápi, 2020, p. 119). Besides, the original work of authorship cannot be judicially sized in execution proceedings (Law on civil enforcement, 2015, sec. 218. par. 1. lin. 4)), which means that the right of divulgation supersedes the pecuniary interests of the third party. This is recognized even in the USA, which does not provide the right of divulgation explicitly (Zhang, 2012, p. 11). Finally, the author can perform this right even after his/her death. On the one hand, there are theoreticians who claim that the work of authorship cannot be disclosed after the author’s death unless it was his/her wish. On the other hand there are theoreticians that claim that work can be disclosed unless the author openly forbade it while s/he was alive. This solution is accepted in Serbian law (Ivanović, 2012, p. 61). In both cases author has control over disclosure of his/her work, and, unless s/he wanted, it will not become available to the public.2

• 34) . Author, as a person who is most interested in the success of work, has the right to decide if, when, where and how the work will be disclosed to the public (Kwall, 1985, p. 87).

• 5.    Concluding remarks

There are practical implications of this theoretical consideration. First of all, it makes it possible to protect the right of divulgation through the right of privacy under article 8 of European Charterer of Human Rights. Further, in jurisdictions that don’t recognize this right, it could be protected indirectly through the right of privacy or right of private communication, which is the case, for instance, in the USA. Finally, when performing the proportionality test, there would be a different treatment of this right if it is known that it is derived from the right to privacy. Therefore, we strongly believe that the correlation between the right to privacy and the right of divulgation has a firm foundation, and that most authors would benefit from this correlation.

From the conducted research, we derived the following conclusions. First of all right to privacy is a universally recognized human right, contained in most of the constitutions and international conventions. We could also conclude that the right to privacy has many manifestations. On the other hand, the right of divulgation is a moral right of the author, not universally recognized, in fact recognized by very few countries. It enables the author to choose whether or not to share his/her work of authorship publicly. This right is quite necessary for the author. As research has shown, the right of divulgation is principally important for the protection of the author’s privacy. As well as with personal correspondence, the author’s thoughts are the very last private shelter in this ultra-publicly available society. Not all authors want that part of their personality to become public, so that decision should be respected. We have seen that the right to privacy has the very same purpose – to prevent parts of a person’s personality from becoming public. Hence, the relationship between these two rights is a general-specific relationship. We therefore believe that the main hypothesis of this work – that the right of divulgation can be derived from the right to privacy is confirmed. Therefore, it is safe to assume that the right of divulgation is a specific form of right to privacy that protects privacy in creativity as an aspect of human nature.

Kovačević Anika

Univerzitet u Kragujevcu, Pravni fakultet, Kragujevac, Srbija

Milosavljević Nikola

Univerzitet u Kragujevcu, Pravni fakultet, Kragujevac, Srbija

PRAVO NA OBJAVLJIVANJE KAOOBLIK PRAVA NA PRIVATNOST

APSTRAKT: Ličnopravno ovlašćenje autora na objavljivanje autorskog dela nije univerzalno priznato u svim državama sveta. Imajući u vidu njegov potencijalni značaj za autora, potrebno je ispitati šta je razlog njegovog propisivanja. U tom cilju autori u prvom delu, rada primenom pravnodogmatskog i sociološkog metoda, analiziraju pravo na privatnost, njegovu definiciju pravne osnove i pojavne oblike. U drugom delu rada autori primenom pravnodogmatskog metoda ispituju pojam prava na objavljivanje, kao i granice njegove primene i sprovode uporednopravnu analizu prava na objavljivanje. Primenom deduktivnog i komparativnog metoda autori na kraju ispituju moguće osnove za priznanje prava na objavljivanje i posebno odnos sa pravom na privatnost. Sprovedenom analizom autori utvrđuju da se pravo na objavljivanje može smatrati oblikom prava na privatnost, te otuda postoji potreba za njegovim širim priznavanjem u svetu u cilju zaštite interesa privatnosti autora.

Ključne reči: pravo na privatnost, ljudska prava, ustavna prava, pravo na objavljivanje autorskog dela, zaštita privatnosti autora, ličnopravna ovlašćenja autora.