Caught In The Act

A video of a forcible deportation questions public servants’ right to privacy.

Opinion | Werner Reisinger | April 2012

It’s a familiar scene in Vienna: Officers of the so-called foreigners’ police (Fremdenpolizei) take action against asylum seekers or illegal refugees, while anti-deportation activists stand by documenting the procedure on hand-held cameras.

The police don’t like it, but what can they do?

Plenty, it seems. In a dramatic recent case involving a family with a handicapped child removed by police from the Purple Sheep refugee shelter in Meiding, Vienna’s 12th District, officers have filed suit against the shelter staffers who filmed the incident and passed the footage on to ORF (Austrian Broadcasting Corporation), who showed it on the programme Heimat, fremde Heimat (Home, Foreign Home). Their argument: The officers see it as an invasion of their right of privacy as private persons. The upcoming trial could redefine not only the role of the foreigners’ police, but of public officials in general. It could also fundamentally threaten the rights of activists to peaceful protest.

The questions are many: Is it legal to film police executing unpopular measures such as the deportation of asylum seekers? And what are the implications for civil disobedience and the peaceful protest essential to a democracy? Since compensation would surely exceed the Purple Sheep’s financial means, a verdict in favour of the police would threaten the existence of this donor-funded, volunteer organization.

But in this case, does such a right to privacy even exist? Don’t public servants in the performance of their jobs, by definition, waive their rights to privacy? If not, what does the term public mean?

"A case like this is unprecedented in Austria; it’s an open question," says Bernd-Christian Funk, a civil rights expert at the University of Vienna. In general, Austrian law does not ban the filming of officers on duty, nor the broadcasting of the footage. The fact that the officers noticed the cameras, along with statements on Purple Sheep’s website arguing that slandering the police was not intended, will weigh heavily in the court’s decision.

"The legal situation totally changes when filming is tolerated by public figures like police officers," says Funk, "or is explicitly denied." In other words: If the officers can prove that Purple Sheep staff was requested to stop filming, they probably have a case.

Paragraph 78 of the Austrian copyright law (Urheberrechtsgesetz) regulates each individual’s rights to their own images (Recht am eigenen Bild). "This means if someone doesn’t want his or her image seen by a broader audience, the publisher must ask for approval, especially in a negative context or for a commercial purpose," explains Gottfried Korn, media lawyer and publisher of the professional journal Medien und Recht (Media and Law). But the publication of the image is allowed without approval if the "legitimate interests" (berechtigte Interessen) of the person are not violated. Portraying somebody in a degrading manner is not allowed; it depends on the context.

On the other hand, the public may have an interest in deportation procedures. "The question of whether public interests are more important than those of individuals must be balanced in each particular case," says Korn.

The legal situation in other European countries varies. It is quite similar in Germany, but restricted in the U.K., particularly since terror attacks in London in 2005. Photographers and cameramen face penalties there if they "hinder" police in performance of their duty – as for example, blocking the way while filming or taking photographs.

In the U.S., documenting police work with cameras is allowed, since officers are considered public servants whose work is subject to public scrutiny. When the NYPD cracked down on Occupy Wall Street protesters in October 2011, activists bellowed in chorus: "The whole world is watching!"

"We made it clear from the very start: Our intention is not only to help and shelter stranded asylum seekers, we also want to document the way authorities deal with them," emphasises Karin Klaric, the head of Purple Sheep.

So why are the policemen suing them – a tiny NGO – rather than, for example, the Austrian Broadcasting Corporation (ORF) who broadcast the footage, she wonders? Neither side is interested in a settlement, and Klaric especially wants a trial to clarify the situation "once and for all".

Just as in the U.S., filming officers can make sense, especially in cases of police violence – where the Vienna police have a shoddy record. From Cheibani Wague to Mike Brennan (see "Your friend and helper?" TVR Feb. 2012) – officers have a record of aggression towards black people and asylum seekers. Moreover, police authorities continue to justify ethnic profiling as a means of tracking drug dealing and other crimes.

The case shows that in Austria, some personal rights are inconsistent with civil rights such as freedom of press and information. Just because someone signed a contract and becomes a police officer may not mean he or she must waive personal rights. Given the current legal situation, the activists might have done better to mask the identity of the officers before broadcasting their material.

Civil disobedience is central to a vigorous and vigilant democracy. But it should be carried out in a way that those who are responsible for unjust and inhumane laws are left no room to depict such disobediance as morally questionable. Blaming the ones carrying out orders is never as effective as fighting the legislation that violates the basic rights of refugees and asylum seekers.

Other articles from this issue