Publication in a newspaper of private information and images secretly obtained by a journalist acting as the candidate surrogate mother. Violation of privacy
JUDGMENT
Hájovský v. Slovakia 01.07.2021 (app. no. 7796/16)
SUMMARY
Notice of finding a surrogate mother on behalf of the applicant. A journalist introduced as the surrogate mother candidate and secretly recorded his conversations, as a result of which she became the subject of a TV show. Publication in a newspaper of private information and clear images of the applicant that were secretly taken, in an article entitled “Trafficking in unborn children”.
Taking into account the erroneous assessment of the applicant’s previous conduct, which was not public or known, the failure to examine the manner in which the photographs were taken and, in particular, the examination of the contribution of the publication of clear images of the applicant to a public debate On the broadcast, the ECtHR ruled that the domestic courts had not balanced the rights of both parties in accordance with the criteria of the case-law of the Court. In these circumstances, and despite the margin of discretion allowed by national courts in this area, the State was found not to have fulfilled its positive obligations under Article 8 of the Convention.
Violation of the right to respect for privacy (Article 8 of the ECHR).
PROVISION
Article 8
PRINCIPAL FACTS
After publishing an advertisement in a nationwide daily newspaper aimed at finding a surrogate mother, the applicant found himself the subject of a television report by an investigative reporter who had recorded her meetings with him covertly whilst pretending to be a potential surrogate mother. This was followed by the publication, in print and online, of an article entitled “Trade in unborn children”, in a popular daily newspaper with national coverage. This described the applicant’s story as depicted by the television report, contained information on his private matters as well as photographs of him from the report taken without his consent. Although, he successfully brought an action for the protection of his personal integrity against Slovak television, the one he brought against the newspaper’s publisher was dismissed.
THE DECISION OF THE COURT…
The issue in the instant case was whether the domestic courts had ensured a fair balance between the protection of the applicant’s private life and the defendant’s right to freedom of expression. The Court thus reviewed, in the light of the case as a whole, whether the decisions taken by the domestic courts pursuant to their power of appreciation had been in conformity with the criteria laid down in its case-law. In particular, it examined the following applicable criteria:
(a) How well-known was the applicant, the applicant’s conduct prior to the publication of the article in question and the subject matter
The domestic courts had considered, in particular, that by publishing the advertisement the applicant had decided to enter the public arena and should thus have had expected a greater amount of public attention, especially as his identity had already been revealed in the television report. However, the sole fact that, as an ordinary person, he had made use of an advertisement, could not be an argument for reducing the protection that should have been afforded to him under Article 8. He had not been a public or newsworthy figure within the meaning of the Court’s case-law, had not sought any public exposure beyond placing the advertisement – this had only revealed his readiness to have recourse to commercial surrogacy while promising confidentiality – nor could he have suspected that by talking to the person who had contacted him as a potential surrogate mother, he had run a risk of being recorded and having his intentions and identity revealed in the media. The assessment of the applicant’s prior conduct had therefore been flawed.
As to the subject matter, the article had revealed some details of the applicant’s private life. However, as it had also mentioned the involvement of (unnamed) doctors who were to have helped with the assisted reproduction and the falsification of documents, and the lack of legislation regulating that practice, the Court accepted the domestic courts’ conclusion that it had been aimed at informing people about the controversial public-interest issue of surrogacy.
(b) The content, form and consequences of the article
The article contained some details about the applicant’s background, his intentions and the content about his negotiations with the pretend surrogate mother. It conveyed a message of indignation about the fact that although trafficking of unborn children had been illegal in Slovakia, the applicant could not be punished for his action. The domestic courts had found that it did not contain any harsh or vulgar expressions intending to defame or create scandal about the applicant, and that the critical value judgments contained therein had relied on the information which, albeit insufficiently precise, had been true in substance. Although, the article had portrayed the applicant rather negatively and unfavourably, in the circumstances and in the light of the previous television report, this in itself did not give rise to a breach of his right to respect for his private life.
(c) Contribution to a debate of general interest
The definition of what constituted a subject of general interest depended on the circumstances of the case. In the instant case and assessing the publication as a whole, the article could be considered as having been written as part of a debate which had been likely to be of significant interest to the general public. Although it contained little about the phenomenon of surrogacy in general, it had been published two days after the broadcast of the television report which had, as per the Government, caused a “public storm” and had thus been closely linked in time to those events.
As regards, however, the potential contribution to a public-interest debate of publishing the applicant’s photographs, nothing in the article or the case file materials substantiated any general interest reasons for the journalist’s decision to include the photographs without taking any particular precautions, such as masking the applicant’s face. Given that the applicant had not been known to the public (apart from the television report), there was nothing to suggest that the publication had had any inherent informative value or had been properly and adequately used. Nor had the domestic courts substantiated their conclusion that the publication of the photographs had been necessary for the purposes of news reporting within the meaning of Article 12 § 3 of the Civil Code by any relevant and convincing arguments. Hence, although the article addressed a matter of public interest, the method used for producing the article, notably the publication of large-size photographs of the applicant, could hardly be said to be capable of contributing to any debate on such a matter.
(d) Circumstances in which the photographs were taken
The Court reiterated that the task of imparting information necessarily included “duties and responsibilities”, as well as limits which the press had to impose on itself spontaneously. In the present case, the domestic courts appeared to have had attached particular importance to the fact that the applicant’s identity had already been revealed in the television report. Admittedly, this was a factor that might be considered in the balancing process and lead to the conclusion of no need to restrict the disclosure of an identity. The fact, however, that information was already in the public domain did not necessarily remove the protection of Article 8 of the Convention especially if the person concerned neither revealed the information nor consented to its disclosure. Thus, notwithstanding that the information in question had already been known to the public, a further dissemination of such “public information” had still to be weighed against the applicant’s right to privacy; privacy was also about preventing intrusion.
It was undisputed but also clear from the television report that the reporter had contacted the applicant under pretences and that she had made the recordings with a hidden camera without the applicant being aware of it or having consented to it. The applicant had also not consented to the photographs’ publication. As the applicant could not have expected to be recorded or reported on in a public manner and had not voluntarily cooperated with the media, his reasonable expectations as to privacy were significant, although not necessarily conclusive, factor. Further, although it had been an established fact that the material concerning the applicant had been obtained illegally and broadcast in breach of the law, it had not been taken into account by the domestic courts. Nor had they assessed whether the journalist had acted in good faith, with necessary rigour and taking necessary precautions when disseminating material emanating from another source. The circumstances in which the photographs had been taken should have alerted the journalist and the newspaper’s publisher to the need to use that material with caution and not to disseminate it without masking or blurring the applicant’s face.
Bearing in mind the above, and more specifically, the flawed assessment of the applicant’s prior conduct, the failure to consider the manner in which the photographs had been taken and, most importantly, to assess the contribution to the public-interest debate of broadcasting non-blurred images of the applicant, the domestic courts had not exercised the balancing exercise between the competing rights in line with the Court’s case-law criteria. In these circumstances, and notwithstanding the margin of appreciation allowed to the domestic courts in this field, the State had failed to fulfil its positive obligations under Article 8 of the Convention.
Conclusion: violation (unanimously)
Article 41: finding of violation sufficient in respect of non-pecuniary damage.
