Erotic videos coming from a hidden camera of a journalist with her partner on the internet. Description of her as ” Cicciolina” from a newspaper. Rejection of her lawsuit. Violation of her private life

JUDGMENT

Khadija Ismayilova v. Azerbaijan 07.05.2020 (n.3)  (application no. 35283/14)

see here

SUMMARY

The applicant is a well-known journalist. She writes mainly articles criticising the government for its policies.

Erotic videos were posted on the internet with the journalist and her partner taken with a hidden camera.

As a result of these videoa, a journalist who supports the ruling party published an article in a political newspaper calling her Cicciolina (Italian porn star). She filed a lawsuit against the newspaper. The domestic courts rejected the claim for damages on the grounds of the newspaper’s right to freedom of expression.

The Court reiterates that, even when an individual is known to the general public, he/she can legally rely on the protection and respect of his/her private life by the state which has an inherent obligation to protect private life even when it concerns to relations between individuals and only.

In this case, the ECtHR pointed out that the applicant did not seek public disclosure, had become known for her militant journalism concerning political positions and not her personal life, and had undermined the privacy of her personal life without her knowledge and consent.

In addition, the ECtHR found that the domestic courts supported the reasoning for rejecting her action on the freedom of expression of the newspaper. However, they did not adequately assess all the relevant facts and did not properly consider the importance and scope of the applicant’s right to respect for her privacy, as both of the above Convention’s rights are equally important. Strasbourg ruled that the domestic courts were not sufficiently balanced between the applicant’s privacy rights and the newspaper’s right to freedom of expression.

The Court unanimously accepted that there had been a violation of her right to privacy and awarded the applicant EUR 4,500 for non-pecuniary damage.

COMMENT

Important decision. The Court is trying to balance the rights to respect for the private life of a well-known and militant journalist and the freedom of expression of a serious newspaper. The criteria set by the decision are also important and its conclusion and final judgment on the weighting of two fundamental rights of the ECHR is remarkable.

PROVISIONS

Article 6§1

Article 8,

Article 10

PRINCIPAL FACTS

The applicant, Khadija Rovshan gizi Ismayilova, is an Azerbaijani national who was born in 1976 and
lives in Baku.

The applicant is a well-known investigative journalist who has worked for the Azerbaijani service of
Radio Free Europe/Radio Liberty (“Azadliq Radio”), among other outlets. In particular she has
conducted journalistic investigations into high-level corruption in Azerbaijan.
This is the third case the applicant has brought before the Court linked to an alleged campaign of
intimidation against her because of her journalistic activity.

In March 2012 a video filmed secretly with a hidden camera in her bedroom, showing scenes of a
sexual nature of her and her then boyfriend taken, was posted online. That and related events were
the subject of the Court’s 2019 judgment finding violations of the applicant’s rights in Khadija
Ismayilova v. Azerbaijan.

At around the same time and afterwards articles criticising the applicant were published in various
newspapers. Another video of the same nature was posted online in the middle of 2013.
In November 2012 the pro-Government newspaper Səs published an article which made various
derogatory remarks about opposition-oriented journalists and opposition politicians. Among other
things the article stated: “If opposition newspapers’ pen-pushing blabbermouths have such cheap
and narrow thoughts, let them make room for Khadija Ismayilova in their Public Chamber and name
her the Public Chamber’s Pornstar Cicciolina!” The article went on to make a number of sexuallythemed statements concerning “Cicciolina”.

The applicant sued the newspaper, alleging that the article was insulting and damaging to her
honour and dignity, her right to respect for her private and family life, and her right to freedom of
expression. She submitted that she was facing blackmail in connection with her journalistic activity
as her private life had recently been invaded and a secret video-recording of her had been filmed
and released on the Internet. The Sabail District Court dismissed her claim in February 2013. Appeals
by her were also dismissed in June and October 2013.

In December 2014 the applicant was arrested and detained on a charge of having incited a former
colleague to commit suicide. Those events were the subject of the Court’s judgment, finding
violations of the applicant’s rights, in the Court’s 2020 judgment of Khadija Ismayilova
v. Azerbaijan (no. 2).

In the current application the applicant complained that the respondent State had failed to protect,
in particular, her rights under Article 8 (right to respect for private life) of the European Convention as the courts had not sanctioned the newspaper for its article on what it had depicted as her private and sexual life.

THE DECISION OF THE COURT…

The applicant relies in the present case on the States positive obligations which are inherent in effective respect for private or family life and which may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves.

In this case, the Court considers that the relevant criteria for balancing include whether the publication contributed to a discussion of public interest, the extent to which the applicant was aware of society, its previous conduct and the content, form and consequences of the disclosure.

The court reiterated that the article was published a few months after a serious intrusion into the applicant’s privacy, involving the secret videotaping and dissemination of personal videos. At the time of the publication, a criminal investigation has been launched into these incidents.

Given this history, the Court notes that the article was apparently written in response to recent criticism of the opposition.

The focus of the applicants complaint is confined to the particular statements made in the article about herself, which were exclusively related to her private life and did not discuss any of her work or public activities. While this was not expressly stated in the article, contextually it appears clear that the applicants name was brought up for no reason other than the secret recording and subsequent dissemination of the intimate video. In their respective submissions before the domestic courts, the applicant raised this argument and the newspaper confirmed it.

The Court does not see how those particular statements could have contributed to any issue of legitimate public interest.

It is true that, once a persons privacy has been breached and the information about it has entered into public domain, the damage is already done and it is virtually impossible to restore the situation to when the breach had never happened. However, while responsible reporting on matters of public interest in accordance with the ethics of journalism is protected by the Convention, there can be no legitimate public interest in exploiting an existing breach of a persons privacy for the purpose of satisfying the prurient curiosity of a certain readership, publicly ridiculing the victim and causing them further harm.

The Court notes the Governments argument that the applicant was a public figure and that it was to be expected that some of the domestic media would comment on various facts relating to her. However, the Court reiterates that, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection and respect for his or her private life. Thus, the fact that an individual belongs to the category of public figures cannot in any way, even in the case of persons exercising official functions, legitimise intrusions into private life.

Furthermore, it is important that the applicant herself had never sought any public exposure in relation to aspects of her private and intimate life which were not relevant to the positions she had taken on public issues as a journalist. Her privacy had been invaded without her knowledge and against her will. Therefore, it cannot be argued that the discussion of her private life was the result of her previous conduct.

As to the content, form and consequences of the publication, the Court notes that the applicants portrayal in the article was not a joke made in a satirical, playful and irreverent style without any intent to criticise, and could not be assessed as such by a reasonable reader. The Səs newspaper was not a comedy show or a satirical publication; it positioned itself as a serious socio-political newspaper and was a self-professed “media trumpet” of the ruling party. As such, the messages conveyed on its pages were expected to have a significant degree of seriousness. The comments were meant to be critical, as confirmed by the newspapers submissions before the domestic courts. The only discernible intent behind the statements made in respect of the applicant was to attack her or set her up for attack on grounds of morality. By further exploiting the previous breach of her privacy, the article in question sought, by using offensive and derogatory language, to attribute to the applicant characteristics and behaviour in a manner calculated to negatively and radically influence how she was viewed in society.

Having regard to the above considerations which are relevant for the adequate balancing exercise, the Court will now have regard to the manner in which the case was dealt with at the domestic level. It notes, at the outset, that neither party has expressly commented on whether the existing domestic legislation and related case-law of the domestic courts concerning, in particular, protection of “honour, dignity and business reputation”, liability for “abusing the freedom of the mass media” and compensation for damages constituted an adequate legal framework for adoption of practical and effective measures designed to fully secure the respondent States compliance with its positive obligation under Article 8 of the Convention to protect the right to private life and reputation in cases such as the present one. In such circumstances, the Court does not consider it necessary to examine this matter in detail for the purposes of the present complaint. It nevertheless observes that the domestic legal system provided the applicant with the possibility of bringing a civil action for damages against the newspaper and that her action was examined by the domestic courts under the legislation and case-law mentioned above. It will therefore proceed to review the domestic courts judgments dismissing the action brought by the applicant against the newspaper.

Τα εθνικά δικαστήρια έκριναν ότι οι γραπτές αναφορές  που έγιναν στο άρθρο ήταν εκδήλωση της ελευθερίας έκφρασης και της ανεξάρτητης γνώμης του συντάκτη, ότι η ευδοκίμηση της αγωγής θα αποτελούσε αδικαιολόγητο περιορισμό της ελευθερίας της έκφρασης και ότι η ενάγουσα είχε αποτύχει να αποδείξει ότι είχε υποστεί οποιαδήποτε βλάβη  ως αποτέλεσμα της δημοσίευσης. Ωστόσο, η σύντομη αιτιολογία των εθνικών δικαστηρίων δεν ήταν σύμφωνη με τις προαναφερθείσες γενικές αρχές και δεν αποδείχθηκε ότι τα δικαστήρια εξέτασαν δεόντως εάν οι γραπτές αναφορές που έγιναν σχετικά με την προσφεύγουσα ήταν συμβατές με τη δημοσιογραφική δεοντολογία και αν είχαν υπερβεί τα επιτρεπόμενα όρια της ελευθερίας της έκφρασης. Το σκεπτικό των εθνικών δικαστηρίων δεν αποδεικνύει ότι τα δικαστήρια διενήργησαν επαρκή εκτίμηση όλων των σχετικών πραγματικών περιστατικών ούτε ότι εξέτασαν δεόντως τη σημασία και το πεδίο εφαρμογής του δικαιώματος της προσφεύγουσας για σεβασμό της ιδιωτικής της ζωής, που ήταν ένα από τα δύο δικαιώματα της Σύμβασης που διακυβεύονται στην παρούσα υπόθεση καθόσον  και τα δύο δικαιώματα είναι εξίσου σημαντικά.

The domestic courts held that the statements made in the article were a manifestation of the authors freedom of thought and independent opinion, that assessing those statements as degrading to the applicants honour and dignity would constitute an undue restriction of that freedom, and that the applicant had failed to prove that she had endured any physical or mental suffering as a result of the publication. However, the brief reasoning provided by the courts is not compliant with the general principles mentioned above and does not demonstrate that the courts duly examined whether the statements made about the applicant were compatible with the ethics of journalism and whether they had overstepped the permissible bounds of freedom of expression. Neither does it demonstrate that the courts carried out an adequate assessment of all the relevant factual circumstances and duly considered the importance and scope of the applicants right to respect for her private life, which was one of the two Convention rights at stake in the present case, both rights being of equal importance.

The Court considers that the reasoning provided and the conclusions adopted by the domestic courts are not such as to enable it to establish that they conducted, in accordance with the aforementioned relevant criteria, an adequate balancing exercise between the applicants Article 8 rights and the newspapers right to freedom of expression.

The foregoing considerations are sufficient for the Court to conclude that the respondent State did not comply with its positive obligation to take adequate measures to secure protection of the applicants right to respect for her private life and her reputation.

There has accordingly been a violation of Article 8 of the Convention.

Just satisfaction: EUR 4,500 for non-pecuniary damage and EUR 1,500 for costs and expenses.


ECHRCaseLaw

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