Op-ed by Tamer Mowafy
Introduction
Getting involved in criminal investigations might be one of the worst experiences in life. This is not the case only when one is a suspect but also when one is a witness or in any way related to the incidents and/or people being investigated. In case these incidents are the focus of the public and hence the subject of extensive media coverage, the involvement in their investigation may leave long term effects even damaging ones on one’s life as a whole, especially if such investigations and/or media coverage involved the details of private life or things that might damage reputation even if not legally incriminating.
The recent exposure of information offered by Italian investigators concerning the murder of Giulio Regeni, was the topic of heated debate on social media in Egypt. The media have uncovered the identity of an Egyptian academic based in Britain who was a friend of Regini before his arrival to Cairo and during his stay there. The media quoted Italian investigators claiming that the said friend has informed Egyptian security agencies on Regini before his arrival to Cairo offering them detailed information about his stay in Cairo as per her almost daily telephone calls with him. People taking part in these debates had widely differing views about how ethically valid it was to reveal the identity of this friend of Regini while suspected of committing a dire ethical infringe, especially that such exposure would negatively and irrevocably affect both her personal life and her career. The participants have also differed in their assessment of the responsibility of media outlets, the British Times being in the forefront of them, for damages incurred, in case these outlets were merely citing Italian investigators, and covering a report presented to the Italian parliament. A few also spoke of the responsibility of investigative bodies of exposing such information or relaying them to the parliament or to the media.
The current paper doesn’t seek to offer conclusive answers to these questions, or to assign or otherwise absolve any party of legal or ethical responsibilities. It only uses this case as a means for approaching the rights and legal contexts of it and of similar cases that reoccur all the time, concerning the breach of the right to privacy when people get involved in criminal investigations, either as suspects, witnesses, or related to the events or persons subject to these investigations. In particular, this paper seeks to answer the question: when would the exposure of specific information a breach of privacy, and when would a privacy breach be acceptable on merit of press freedom and the right to access to information.
Rights and Law Contexts
The right to access to information protects the legitimate interest of the public to be informed with crimes and their investigation, and the exposure of culprits, as well as the trials processes and their rulings. While the relevant state apparatuses; law enforcement agencies, public prosecutors, etc., have their own responsibilities to inform the public with such information through public statement for specific cases and events, or periodical reports, etc., the greater role is that of independent and impartial media in its various forms: written, audio, video, and electronic. In order to fulfill this crucial task, those working for the media and their institutions must enjoy the free and unencumbered access to information as well as the freedom to relay them to the public.
On the other hand, the right to privacy protects individual from the exposure of their private data, information, and events, to the public except for whatever they choose voluntarily to reveal with their free will. In particular, individuals have the right to the confidentiality of such information that might harm their reputation, honor, and public image, or otherwise negatively affect their legitimate interests.
These two rights intersect, when people become subjected to criminal investigations, either as suspects, or as related to the incidents or persons being investigated. In the case of being a suspect, revealing this fact in itself might harm one’s reputations, or affect his/her interests. On the other hand, the public has the right to be informed with the crime subject to investigation, and the media is required to inform the public with it. The same goes for those investigated in relation to the crime while not suspected to have committed any legally punishable crime. The process of criminal investigations might reveal information about their lives and behaviors that might harm their reputation in their communities and otherwise affect their interests.
Articles of international covenants and agreements do not cover dealing with this intersection being very general for many reasons such as political necessities of different states consent over one ruling text, as well as the need for flexibility for compatibility with emerging changes that must not lead to the text becoming irrelevant. In the same time articles should be as general as required for their interpretations to be inclusive of such changes. Accordingly, more detailed rules can only be found in different states’ constitutions and laws. Concerning the case used by this paper for approaching its subject, the legal context belongs to the laws in force in Italy, where the investigations are conducted, and Britain where the Times, which had the exclusive access to the information presented by Italian investigators to the parliament, is based. In the following, we briefly discuss relevant Italian law articles, and we use an important ruling by the English High Court as an example for comparison, as the legal context in the UK depends mainly on precedent legal ruling for reference.
The Italian Law
The Italian law obliges state agencies responsible for carrying out preliminary investigation, for the purpose of discovering suspects of committing crimes, and gathering evidence for use in trial, to preserve full confidentiality of these procedures. It also states that, in case public prosecutors decided to refer the case to the court, they should first present their evidence to a closed hearing session where a judge decides whether or not the evidence is enough to move to the next phase. Only trial phase is open for the public, which is also the case with the Egyptian law that punishes those who divulge investigations secrets. The Egyptian law however doesn’t require and intermediate hearing session before referring a case to the court.[1]
Also, similar to its Egyptian counterpart, the Italian law allows a judge to close court’s doors in the face of the public in cases where he deems the “evidence discussed prejudices a witness or a civil party.” The Italian law also allows prohibition of publishing court and trial procedures if deemed harmful for the reputation of a witness or a civil party.[2] While these detailed provisions are specific to trial phase, they are suitable for comparison with the investigation phase, especially as trials are public by default, while investigations are confidential by default. Such circumstances that call for confidentiality in trials should call for even more protection for confidentiality during the investigations phase.
Sir Cliff Richard vs. BBC
In 2014, rock singer, sir Cliff Richard was under investigation by police as a suspect. A BBC reporter found out about the investigation through his sources. He reached a deal with the police, where he would be informed with the exact date and time of a scheduled house search. On the specified time, the BBC broadcasted live coverage of the search, with on ground reporters and a helicopter in the air. The BBC has also sent a team of reporters to prepare reports about Richard’s properties in Portugal, and Barbados. After the search, the police issued a statement relaying the events without revealing the identity of Richard, while in their coverage the BBC revealed this identity. Later on, the prosecutor chose not to refer the case to court due to lack of evidence. On the other hand Richard filed a suit versus both the BBC and the police department. The EHC ruled in favor of Richard in his suit against the BBC, considering the later to have preached his right to privacy, and granted him 210,000 bounds in reparation for general and specific damage. The suit against the police was settled outside the court.
This case is considered and important precedent in the history of British justice system, as it established clear measures for the limits of what investigators and the media can reveal of information concerning a running investigation, particularly related to suspects being investigated. The court has ruled accepting Richard’s claims that he can expect his privacy to be protected concerning two points: firstly the fact that he was being investigated as a suspect, and secondly, the fact that his house was searched. Although both facts were true, revealing them has the effect of tarnishing Richard’s reputation. Hence, the court saw that being a suspect of committing a crime of which he wasn’t yet found to be guilty, is not enough of an excuse to damage his reputation, by revealing such information to the public.[3]
While this example concerns a suspect of committing a crime, it is still suitable for comparison with case of people involved in investigation without being suspects of committing crimes punishable by law. If law in many cases allows exceptions to normal protection of basic rights of suspects, though still holds to protecting their right to privacy, it should be expected to extend more strict protection for the rights of those involved while not suspects, as no exceptions are allowed concerning their rights in the first place.
Analysis and Conclusion
As it’s been mentioned before in the Introduction, this paper doesn’t seek answers for the questions concerning the events it used to approach its subject. The previous presentation of the international human rights context as well as the legal framework in both Italy and Britain leads to coming out with general guidelines for similar cases.
- All legal rules we have gone through imply a principle of necessity to balance the rule of publicity that fulfills the rights to the access to information and press freedom, against the rule of privacy. This principle means that the necessities of fulfilling the first is the only cases permitting a breach of the second. If the information to be divulged are necessary for the public’s interests met by being informed with the details of the crime and the procedures of the investigation and trial consequent to it, it is possible in this case and in this case only to allow the exposure of this information and publishing them. As an example, if the knowledge that a specific event has taken place is necessary for clarifying criminal responsibility of a certain party, the publicity of information about this event is necessary, but revealing the identities of the persons involved in this event is not necessary as long as there is no need to prove their own responsibilities for the crime subject to investigation.
- In both the Italian and Egyptian laws, the representatives of investigative parties (investigation judges) and prosecution (general attorney), should preserve the confidentiality of investigations especially when involving information that might harm the reputation of the suspect himself as well as all the persons involved. The divulging by any of these representative of such information by any public means is considered a breach of the law, especially if the information revealed are not necessary for clarifying the course of obtaining the conclusions reached by the investigator of used by the prosecutor to proceed with case procedures.
- According to the legal precedence in British justice system, the exposure of the identity of a suspect under preliminary investigation and revealing any procedures required by this investigation are considered a breach of the suspect’s right to privacy. In comparison to this, and more likely, the exposure of the identity of any person involved in the investigations with revealing information that might harm his/her reputation is by necessity a breach of his/her privacy that warrant a civil reparation for general. And specific damages, at least in front of UK’s courts.
There is only one aspect left, that this paper hasn’t dealt with, and that is still important as it is in the background of the debate triggered by the incident of exposing the identity of Regini’s friend, accused of cooperating with Egyptian Security agencies. This is specifically the legality of this exposure for sake of protecting others form potential harm. What is meant by others here I those in relation with the friend accused of betrayal, their security being threatened by her cooperation with the same or other security agencies. It must be admitted that this point is still rather a gray inconclusive area. It might only be said that the principle of necessity mentioned before can be applicable to such cases, taking into consideration gradual procession through levels of privacy preach as required. If potential danger can be avoided by exposing the identity of the said friend to competent parties capable of conducting an investigation of the allegations against her and of taking enough measures for protecting others from danger, the exposure of her identity through media won’t be necessary. Otherwise, I such parties don’t exist or have no power to take the required measures, the exposure through media might be justified.
Finally, something that many of the debate participants have made clear should be repeated here. It is simply that the rial culprits to the crime, are those who kidnapped, tortured, and killed Giulio Regini, those who issued their orders, and those who covered up for them, and made sure they enjoy immunity, even accusing others and eliminating them in cold blood to cover up the crime of covering up. Other roles in this harrowing tragedy remain secondary except as far as they point the accusation finger to the real criminals and convict them.
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[1] B.J. Koops, Criminal Investigation and Privacy in Italian Law, TILT Law & Technology Working Paper Series, version 1.0, December 2016, available at https://ssrn.com/abstract=2888422, p. 8.
[2] Ibid.
[3] Arthur Cox, LITIGATION AND DISPUTE RESOLUTION / CORPORATE CRIME, Cliff-edge moment for privacy rights and criminal investigations, September 2018, http://www.arthurcox.com/wp-content/uploads/2018/09/Privacy-Rights-Sept-2018.pdf, (PDF). Last visited 07-01-2020.
