The Independent Media Council received a complaint from Nataliia Lesyk regarding episode 14 of the television program “Mysteries of DNA” broadcast on the STB TV channel on October 27, 2020, and containing information that identifies her, albeit indirectly, as the mother of Eduard Fintotvidzha, an orphan. She did not participate in the production of the program. In the complaint, she denies being the mother and provides a DNA examination as proof of her denial.
Mrs. Lesyk enclosed a video of the program in question requesting that it be examined for violations of laws, as well as basic professional standards and journalistic ethics.
On July 8, 2021, pursuant to paragraph 12 of the Regulations on the Independent Media Council, the Council took the complaint up for consideration in view of the importance of developing the practice of balancing out the right of individuals to non-interference in their private life and the right of the media to disseminate information.
As a conclusion, the Independent Media Council believes that in episode 14 of the program “Mysteries of DNA” (Season 2, October 27, 2020), the STB TV channel violated paragraph “k” of Part 1 of Article 59 of the Law of Ukraine On Television and Radio Broadcasting, Articles 7 and 14 of the Law of Ukraine On Personal Data Protection, Parts 1 and 2 of Article 306 of the Civil Code of Ukraine, and paragraphs 3 and 13 of the Ethics Code of Ukrainian Journalists. The Council does not assess the accuracy (or inaccuracy) of the information provided in the TV program based on DNA testing.
1. The Independent Media Council received a complaint from Nataliia Lesyk regarding episode 14 of the television program “Mysteries of DNA” broadcast on the STB TV channel on October 27, 2020, and containing information that identifies her, albeit indirectly, as the mother of Eduard Fintotvidzha, an orphan. She did not participate in the production of the program. In the complaint, she denies being the mother and provides a DNA examination as proof of her denial.
Mrs. Lesyk enclosed a video of the program in question requesting that it be examined for violations of laws, as well as basic professional standards and journalistic ethics.
2. On July 8, 2021, pursuant to paragraph 12 of the Regulations on the Independent Media Council, the Council took the complaint up for consideration in view of the importance of developing the practice of balancing out the right of individuals to non-interference in their private life and the right of the media to disseminate information.
3. The episode features Eduard Fintotvidzha looking for his parents since he does not know the name given to him at birth or the date of birth, or at least one of his biological parents. He has had several DNA tests, the program analyses various versions of his origin, and it is finally suggested that, based on a DNA test, Eduard is the son of a certain Mrs. Nataliia, with a 99.9% probability. The material for testing was allegedly provided by Nataliia’s daughter.
4. According to the complaint, N.Lesyk (referred to as “Mrs.Nataliia” in the program) can be identified as the purported mother of E. Fintotvidzha based on the following information provided in the program:
— the image of the grave of N.Lesyk’s mother (the surname written on the cross is blurred but the years of her life on the plaque as well as the plaques on the graves next to it are visible);
— a reference to the gender composition of the children of Mrs. Hanna (N. Lesyk’s mother);
— remote participation in the program of her first cousin;
— making public a recording with N.Lesyk’s voice during the program and the journalist’s telephone dialogue with her recorded on a voice recorder (she claims to have never given her consent to record or broadcast it).
It is argued that because of this TV program, N.Lesyk’s relations with her relatives have deteriorated dramatically (including with her husband) who allegedly identified her as Eduard’s mother.
5. The videos of the TV program were published on the TV channel’s website and YouTube but were eventually removed, although N.Lesyk claims that it happened not due to her initiative and was done by the channel itself.
6. The Independent Media Council contacted the editorial offices of the STB TV channel and the TV program “Mysteries of DNA” regarding the video and making public the telephone conversation with N.Lesyk, allegedly without her consent, but did not receive any responses. The Council views this as supporting N. Lesyk’s position that she did not consent to such an action.
Article 32. No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine.
The collection, storage, use and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interests of national security, economic welfare and human rights.
Article 34. Everyone is guaranteed the right to freedom of thought and speech and the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, to prevent disturbances or crimes, protect the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially or supporting the authority and impartiality of justice.”
Article 8. The right to respect for private and family life
1. Everyone has the right to respect his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10. Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
3. Law of Ukraine On Television and Radio Broadcasting (2006 version)
Article 6. No abuse of freedom of broadcasting organizations’ activities shall be allowed
2. It shall be prohibited to use broadcasting organizations for…
disseminating any information which violates the legal rights and interests of natural or legal persons.
Article 59. Obligations of TV and Radio organizations
1. Broadcasting organizations shall…
k) refrain from disclosing information about citizens’ private life without their consent unless such information is publicly significant.
4. Law of Ukraine on Protection of Personal Data
Article 2. Term Definitions
Owner of personal data’s consent shall mean a voluntary declaration of will by a natural person, provided he/she has been properly informed, to grant permission to process his/her personal data in accordance with the purpose of processing stated in writing or in any other form that makes it possible to conclude that the permission has been granted.
[…]
Processing of personal data (hereinafter referred to as “processing”) shall mean any operation or set of operations such as collection, registration, accumulation, storage, adaptation, alteration, updating, use and dissemination (distribution, sale, transfer), depersonalization, or destruction of personal data which may involve the use of information (automated) systems;
Personal data shall mean information or aggregate information about a natural person who is identified or may be identified…
Article 5. Objects of Protection
2. Personal data can be considered confidential information about a person by law or the respective person.
Article 6. General requirements regarding personal data processing
5. Processing of personal data shall be conducted for concrete and legal purposes, determined by the consent of the subject of personal data or, in certain cases prescribed by Law.
6. Processing of data about a natural person shall be prohibited without such person’s consent, except for the cases stipulated by the law, and only in the interests of national safety, economic welfare and human rights.
Article 7. Particular requirements regarding personal data processing
1. The processing of personal data shall be prohibited if such data is about racial or ethnic origin, political views, religious or other convictions, membership in political parties and trade unions, criminal charges or convictions as well as data regarding health, sexual life, biometric or genetic data.
2. Provisions of part one of this Article shall not apply if personal data processing:
1) is implemented in case the owner of personal data gives a well-defined consent to process such data;
2) is necessary for the performance of duties of a controller in the sphere of labor relations according to the law in case if that an adequate level of protection is ensured;
3) is necessary for the protection of the vital interests of the owner of personal data or any other person in case of incapability or limitation of the civil capability of the owner of personal data;
4) is carried out with adequate protection safeguards by a religious or civil organization of religious orientation, a political party or trade union…
5) is necessary for substantiation, satisfaction or protection of legal claim;
6) is necessary for health protection, medical diagnosis, provision of care, medical treatment or services provided, functioning of an electronic health care system if such data is processed by a health professional or another employee of a health care institution or a private entrepreneur licensed to have a private medical practice and by their employees responsible for personal data protection and to whom the laws on medical confidentiality apply, by the employees of a central executive body implementing state policy on state financial guarantees to provide health care and vested with the responsibility to protect personal data;
6-1) is necessary to ensure the military registration of conscripts, conscripts and reservists…
7) concerns court sentences, execution of tasks of operational and search or counterintelligence activity, antiterrorism, implemented by a state body as defined by the law;
8) concerns the data that were disclosed by the owner of personal data.
Article 14. Disseminating Personal Data
1. Disseminating personal data shall provide actions regarding the transmission of information about a natural person with the consent of the owner of personal data.
2. Disseminating personal data without the consent of the owner of personal data or a person authorized by him/her shall be permitted in cases determined by the law, and only (where necessary) in the interests of national safety, economic welfare and human rights.
Article 25. Limitations on the application of this Law
2. Processing personal data shall be permitted without applying the provisions of this Law if such processing is carried out:
1) by private individuals for their personal or household needs;
2) exclusively for journalistic or creative purposes if the balance between the right of respect to private life and the right of free expression is maintained.
5. Law of Ukraine On Information (2011 version)
Article 1. Term definitions
Information shall be understood as data preserved on physical carriers or reflected electronically.
Article 11. Information about the individual
1. information about the individual (personal data) are data or data sets about the individual that has been identified or can be specifically identified.
2. The collection, storage, use and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interests of national security, economic welfare and human rights.
Article 21. Information with limited access
1. Information with limited access comprises confidential, secret, and privileged information.
2. Confidential information is information about a natural person, as well as information access to which is restricted by a natural person or a legal entity, except for authoritative powers subjects. Confidential information may be spread by the wish (consent) of respective persons under conditions provided by them, as well as in other cases defined by law.
Relations associated with the legal regime of confidential information shall be governed by law.
Article 29. Dissemination of socially salient information
1. Restricted information may be disseminated if it is in the public interest, and the public’s right to know that information outweighs the potential harm from its dissemination.
2. The subject of public interest is information indicating a threat to state sovereignty, territorial integrity of Ukraine; ensuring the implementation of constitutional rights, freedoms and responsibilities; indicating possible human rights violations and misleading the public, harmful environmental and other negative consequences of the activities (inaction) of individuals or legal entities, etc.
Article 291. The right to family
3. A natural person shall be entitled to maintain relations with his/her family members and relatives irrespective of his/her residence.
4. Nobody shall be entitled to interfere with the family life of a natural person except for the cases established by the Constitution of Ukraine.
Article 306. The Right to the Privacy of Correspondence
1. A natural person shall have the right to the privacy of correspondence, cables, telephone conversations, telegraphic messages and other kinds of correspondence.
Letters, cables etc. shall be the property of the addressee.
2. Letters, cables and other kinds of correspondence may be used, particularly by way of publication, only with the consent of the person who sent them and the addressee.
7. Ethics Code of Ukrainian Journalists (2013 version)
3. Journalists shall respect a person’s private life. This does not preclude their right to a journalistic investigation related to certain events and facts, should the public significance of the information collected and disseminated by journalists be higher than a person’s private interests.
13. Journalists shall not use illegal methods to obtain information. When collecting information, journalists act within the Ukrainian legal framework and use any legal procedures, including court procedures, against those who prevent them from collecting information. Using covert methods of gathering information is allowed only when it is necessary to ensure the authenticity or accuracy of the story.
8. Editorial charter of the TV company STB (approved by the committee of participants on January 18, 2018)
ІІІ. General requirements for the creation and dissemination of information by the TV Channel STB
3.7. The TV channel STB shall not make public information about a citizen’s private life without their oral or written consent (including the dissemination of audio-visual information), except when such information is directly or potentially is socially important, has provoked or would undoubtedly provoke public debate, affected or may affect the formation of public opinion on any issue.
IV. the rights and obligations of journalists when gathering, processing or disseminating information
4.2. Journalists shall respect a person’s dignity and their right to privacy.
VІІ. Requirements for the dissemination of confidential information
7.1. It is not allowed to broadcast information on the TV channel STB that constitutes state secrecy according to law or the dissemination of which is restricted or forbidden.
9. Declaration on mass communication media and Human Rights (approved on January 23, 1970, by PACE resolution No.428 on 23 January 1970)
C. Measures to protect the individual against interference with his right to privacy
15. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights. The exercise of the former right must not be allowed to destroy the existence of the latter.
21. The right to privacy afforded by Article 8 of the Convention on Human Rights should not only protect an individual against interference by public authorities but also against interference by private persons or institutions, including the mass media. National legislation should comprise provisions guaranteeing this protection.
1. Based on the complaint, the subject matter is the TV program that combines elements of a TV show and a journalistic investigation. The Media Council points out that the freedom of media, including TV and radio companies, is broad but it must be exercised by adhering to the rights, freedoms and interests of the other persons featured in the TV program.
2. In this particular TV program, a former orphanage resident is looking for his biological parents. This topic cannot but be considered socially important. Every citizen has the right to family and maintaining relations with relatives, which is guaranteed under civil law. This right obviously includes the possibility to search for relatives with whom one has lost contact for objective or subjective reasons. In this particular case, the TV channel helps a citizen exercise such a right. It can be seen from the content of this TV program that E.Fintotvidzha does not object to disclosing his identity on the air.
3. Taking into consideration the Independent Media Council’s area of competence and the limits of its powers (paragraphs 1 and 2 of the IMC Regulations), as well as the fact that in this case, there are two different conclusions from DNA tests, the Council does not take it upon itself to determine which of the test results is credible and which is not. That is, in this Opinion, the Independent Media Council does not assess whether the information about Eduard Fintotvidzha being the son of Nataliia Lesyk is true or false.
However, when preparing material for broadcast, it looks like the TV channel believed that the information about the biological connection was confirmed and reliable, so it proceeded from this premise to build the content for the TV program. In view of this, the Council must assess whether the TV channel violated the individual right to privacy.
4. Along with the rights of the initiator of the search, the right to privacy of the person being searched for with the help of such a television program constitutes a separate important aspect. For various reasons, the person might be reluctant to communicate both with the person looking for her (or believing that he is looking exactly for her) and with the media, as well as to object to the disclosure of her data by the TV channel.
Looking abstractly at this dilemma at first, the Council takes into account the following. Apparently, it is impossible to compel someone to reunite with relatives purely because the information has been disclosed about them in the media. At the same time, deciphering the human genome, and, consequently, an entire commercial sector that has been developing dynamically and allowing for affordable DNA testing does not make it possible to completely hide biological information, as certain DNA segments are shared by two or more relatives. This makes it possible to re-establish lost connections, including several generations back, but it also makes it much more difficult to maintain the confidentiality of personal information. Furthermore, in the long run, the risk of disclosing in the media the identity of the mother/father who sent a child to an orphanage (for adoption) might lead to unpredictable reactions from the purported parents. Considering the development of genetic research and its popularity among ordinary citizens, publicizing biological parentage data in the media potentially jeopardizes human egg donation and other similar technologies. There is no overriding public interest in identifying specific persons in the media who concealed their maternity or paternity. Although the search techniques, without disclosing in the media the data of the person searched for, could help other people.
With that said, the Independent Media Council believes that disclosing maternity/paternity information in the media without the consent of the individual cannot be justified by the rights of the person looking for his/her own parents.
Typically, the Law of Ukraine On Personal Data Protection does not apply to journalistic activities, with its text providing a certain immunity. However, given the lack of overriding public interest in disclosing the person searched for, and the fact that TV programs could be telling stories about someone’s search for their parents without disclosing their identities, in this particular case, the media must lose the special immunities under paragraph 2 Part 2 of Article 25 of the Law On Personal Data Protection, and the aforementioned Law applies to the content in question.]
5. In the case-law of the European Court of Human Rights, there would be only one such case – the decision in Couderc et Hachette Filipacchi Associés v. France of November 10, 2015, concerning the disclosure in the media of information about the son of Prince Albert Grimaldi of Monaco from an extramarital relation, in which sanctions were imposed on the media outlet. The European Court found a violation of Article 10 of the Convention by the state but pointed out that in this case, the very existence of such a child already went beyond the private sphere, given the hereditary nature of the Prince’s functions (Paragraph 126 of the Decision). That is, in this case, it was necessary to take into account the possibility of claiming the throne by such a descendant. This case and the Court’s decision constitute a special case. In our opinion, this decision by the European Court cannot serve as a precedent for cases involving public figures, and in particular for the production by the STB TV channel.
6. In the TV program, the channel deliberately tried not to disclose Mrs. Lesyk’s identity, as evidenced, in particular, by the fact that her name is never mentioned, her mother’s name on the tombstone plaque is also blurred in the video, her images are not shown, etc. In other words, the TV channel tried to act within the bounds of the law and so the Independent Media Council must assess how much it succeeded in ensuring the non-disclosure of Mrs. Lesyk’s identity, whether it managed to find a balance between media freedom and Mr. Fintotvidzha’s right to family life on the one hand and N.Lesyk’s right to non-interference with her private life, on the other hand. At the same time, we take into account that the TV channel proceeded from the belief that N.Lesyk’s maternity data in connection to E. Fintotvidzha were reliable. The Council does not assess whether such a belief was well-grounded, as explained in Paragraph 3 above.
7. The easiest way to disclose a citizen’s identity in the media is to make public their name and image, but media outlets need to understand that these are by far not the only way of disclosure. Several laws define personal data as information or several sets of information about an individual that has been identified or can be specifically identified. It is absolutely clear that it is possible to point to a person directly or by providing several characteristics that, when combined, will allow those who know her identify this person.
As for the dissemination of data, the Law of Ukraine On Personal Data Protection (Article 14) does not establish a minimum number of subjects to whom personal data would be available without proper legal justification to deem such dissemination a violation. That is, even providing access to or reviewing personal data of a third party without proper legal grounds is deemed a violation.
It is also obvious that not everyone can identify a person based on a certain combination of characteristics, but rather those who know her at least a bit. This circle of acquaintances can be larger or smaller, depending on the nature of the information about the person’s characteristics being disseminated and her circle of communication and social activity, but it can also be an interference with a person’s private life.
In her complaint to the IMC, N.Lesyk notes that she was informed about the TV program by her daughter, after which she and her husband watched it. But later, her acquaintances began asking her questions about the program, i.e. they recognized N.Lesyk as Eduard’s mother featured in it.
8. The parts of the TV program that potentially identify N.Lesyk are the following:
8.1. The image of N.Lesyk’s mother’s grave (after the 42nd minute). The name and upper part of the face on the tombstone were blurred in the video, but her name and patronymic, her dates of birth and death, and the neighboring graves are visible. After the 43rd minute, one can see well even the surnames on the tombstones in the next row. After the 53rd minute, the entrance to the village cemetery and the neighboring graves on the other side of her mother’s grave are also shown, which means complete identification of the person in a small community.
In view of the above, the Independent Media Council believes that these video fragments allow her fellow villagers to identify whose grave it is and, consequently, the daughter of the deceased person.
8.2. Participation in the TV program of N.Lesyk’s first cousin (after the 44th minute). The video provides her image and the captions of her surname and given name. She talks about the nature of her family relationship with “Mrs. Hanna”, which allows the acquaintances to identify her as Nataliia Lesyk.
8.3. Playing an audio recording of the telephone conversation with N. Lesyk (after the 45th minute). The voice on the audio had not been distorted to disguise her identity. We believe that thanks to this, those who know Nataliia Lesyk well can identify her assuming that she is Eduard’s mother. The legitimacy of disclosing the tape is discussed below.
8.4. The TV program provides a lot of information about N.Lesyk’s relatives (43rd – 46th minutes), namely her mother’s name and the years of her life, her physically challenged brother, her daughter’s age and name. Mrs. Lesyk’s name is also reported – Nataliia, as well as the approximate location where her mother lived. All combined, it makes it possible for her colleagues, relatives, acquaintances, and fellow villagers to identify this person.
Although the information provided by the cousin concerns some aspects of her personal life, it also affects the interests of a third party, i.e. the complainant. Disclosure of such information requires the complainant’s consent, which apparently was not done.
9. Considering what has been said in the previous paragraph, the Independent Media Council believes that the STB TV channel failed to provide a sufficient level of data anonymization and thus violated:
— Point “k” of Part 1 of Article 59 of the Law of Ukraine On Television and Radio Broadcasting;
— Article 14 of the Law of Ukraine On Personal Data Protection;
— Paragraph 3 of the Ethics Code of Ukrainian Journalists.
We also point out that making any information about a person known to her acquaintances can be even more traumatic for her than providing this information to strangers.
10. Information about a child born out of wedlock is information about the sexual life of the child’s mother, therefore this information is subject to Article 7 of the Law On Personal Data Protection. The TV program does contain such information, despite the stricter requirements for the protection of data about personal sexual life. Grounds for processing personal data listed in Part 2 of Article 7 are not seen in the case under consideration, therefore the TV channel also violated Part 1 of Article 7 of the aforementioned Law.
11. The Council does not assess the compliance of the STB TV channel with the requirements of paragraphs 3.7., 4.2. and 7.1. of its Editorial Charter, considering the vague wording of the grounds for the dissemination by the channel of information about a person’s private life: “may provoke public debate, affects or can affect the formation of public opinion on any issue”. The Media Council points out that public debate or the formation of public opinion that can be caused by the audience’s routine interest in gossip or family scandals is not equivalent to the public interest in disseminating certain information. The condition for disseminating confidential information is that “the public’s right to know this information outweighs the potential harm from disseminating it ” (Part 1 of Article 29 of the Law On Information). In the Council’s opinion, the provisions of paragraph 3.7. of the Charter needs to be improved.
12. On a separate note, the Independent Media Council points out that Mrs. Lesyk claims that the telephone conversation with her was recorded and made public during the TV program without her consent. The editorial offices of the TV channel and the program did not debunk this statement following the Council’s request for clarification on the matter.
Under the requirements of paragraphs 1 and 2 of Article 306 of the Civil Code, the TV channel should have asked for consent to record and make public the telephone conversation. At the same time, as we established above in this Opinion, the TV channel effectively disclosed the identity of N.Lesyk as the purported biological mother of E.Fintotvidzha to a broad audience in the TV program, in contrast to its attempts to anonymize her.
In the telephone conversation, N.Lesyk only denied being the mother and asked to leave her be without disclosing any essential details of her own life, so there is no urgent need for making this recording of the telephone conversation known to the public to ensure the authenticity or accuracy of the story. That is, N.Lesyk’s right to privacy of correspondence was violated (paragraph 13 of the Code of Ethics of Ukrainian Journalists, Article 306 of the CCU).
The Independent Media Council believes that in episode 14 of the program “Mysteries of DNA” (Season 2, October 27, 2020), the STB TV channel violated paragraph “k” of Part 1 of Article 59 of the Law of Ukraine On Television and Radio Broadcasting, Articles 7 and 14 of the Law of Ukraine On Personal Data Protection, Parts 1 and 2 of Article 306 of the Civil Code of Ukraine, and paragraphs 3 and 13 of the Ethics Code of Ukrainian Journalists. The Council does not assess the accuracy (or inaccuracy) of the information provided in the TV program based on DNA testing.
Votes:
Head of the Independent Media Council
Secretary of the Independent Media Council O. Holub
Secretary of the Independent Media Council P. Moiseyev
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