The conviction of a grandmother for disclosing already known publicly personal data of her orphaned granddaughter, violated the freedom of expression
N.Š. v, Croatia 10.09.2020 (app, no. 36908/13)
Freedom of expression, personal data, best interests of the child and a fair balance between the competing interests of the individual and the community.
The applicant claimed custody of her orphaned granddaughter when her daughter and son-in-law died in a car accident. She publicly complained on a TV show about irregularities in the process of entrusting custody to her son-in-law, citing her granddaughter’s details publicly. Following a lawsuit for breach of personal data she was convicted.
The Court reiterated that in all decisions concerning children, directly or indirectly, their interests are paramount.
The ECtHR accepts as a rule that personal data that could disclose or indirectly allow the identity of the child to be disclosed should be kept inaccessible to the general public. However, in the present case it found that the domestic courts had not taken into account the fact that the applicant ‘s participation in the television show in question was not intended to disclose information – which was already known to the general public – but to protect her granddaughter, raising questions with the dysfunction of social welfare services.
The ECtHR concluded that the national courts had failed to examine all aspects of the case and ruled that there was a violation of the right to freedom of expression (Article 10 of the Convention) and awarded EUR 7,500 for non-pecuniary damage and EUR 4,170 for costs.
The applicant, Ms N.Š., is a Croatian national who was born in 1954.
The case concerned the applicant’s criminal conviction for breaching the confidentiality of
administrative custody proceedings over her granddaughter.
The applicant’s daughter and son-in-law died in a car accident in 2007. The couple’s child, five
months old at the time, survived. A legal dispute arose between the applicant’s family and the
paternal family over the care and custody of the baby. Care was most recently granted to the child’s
paternal uncle, a decision which was challenged by the applicant’s family in administrative
The family dispute attracted wide media coverage and in 2010 the applicant participated in a
television interview where she discussed alleged deficiencies in the custody process and procedures.
Following a criminal complaint lodged by the child’s uncle, the State Attorney’s office indicted the
applicant in 2011 for disclosing her granddaughter’s identity on television. The Municipal Court
found her guilty in 2012 of breaching the confidentiality of proceedings under Article 305 § 1 of the
Criminal Code. This finding was endorsed by the County Court and the Constitutional Court in 2013.
Throughout the proceedings the applicant had argued that the information she had disclosed was
already in the public domain, requested that the courts hear the journalists who had prepared the
television report, and that they took into account the context and background of the case. Her
requests were all dismissed.
Relying on Article 10 (freedom of expression), the applicant alleged that her conviction had aimed at
silencing her for criticising the handling of her granddaughter’s custody proceedings.
THE DECISION OF THE COURT…
In the present case, the applicant’s conviction was based on Article 305 § 1 of the 1997 Criminal Code. That provision – as opposed to the current regulation – did not specifically forbid the disclosure of information in proceedings concerning the protection of the rights and interests of a child. However, it proscribed the disclosure without authorisation of information which a person learnt in administrative proceedings, provided that the information in question was deemed to be confidential, according to the law or a decision based upon the law.
In cases requiring the balancing of the right to respect for privacy with the right to freedom of expression, the Court held that the outcome of the action should not, in principle, differ according to whether it has been brought before the Court under Article 8 or Article 10 of the ECHR. However, as the Court has confirmed, in many cases involving children, their interests must be taken into account. On this particular point, the Court reiterated that there is a broad consensus – including in international law – in support of the principle that in all decisions concerning children, directly or indirectly, their interests are paramount.
(i) Application of the above principles in the present case
The Court noted that in the present case a legal dispute arose between the applicant’s family and the family members of NG’s paternal line over the custody and care of the infant whose parents had died in a tragic accident. The case has attracted media attention, putting the child’s privacy at serious risk. Therefore, in the present case, the applicant ‘s right to inform the public of alleged deficiencies in the way in which the domestic authorities handled the case of her granddaughter was contrary to the infant’ s right to privacy and confidentiality, including the identity of the child and against the prohibition of disclosure without approval, of information disclosed during the custody proceedings. The Court has already had the opportunity to rule on matters relating to the disclosure of confidential information, even in circumstances other than those of the present case.
In the Court’s view, a similar logic applies in cases involving – such as this – the disclosure of the identity and personal data of the child in the press or on television in connection with the custody proceedings. If the proceedings are conducted in camera, there is a reasonable expectation that the information disclosed during the proceedings will remain confidential. The Court emphasized that children, especially infants, have little or no practical control over the use of their personal data, which includes the inability to consent or understand matters for which their consent will be required, as in the case of adults.
The Court reiterated that comments on the functioning of a child custody decision-making system, insofar as they concerned matters of public interest, should enjoy a high level of protection of freedom of expression.
However, in the present case, they should be treated in the context of the need to protect the privacy of the child, even though she is only an infant, including his identity and the values associated with privacy, such as well-being and dignity, development personality, psychological integrity and relationships with other human beings, especially between family members, taking into account the best interests of the child as a primary concern.
In addition, despite the applicant’s specific request in this regard, the court refused to consider matters relating to the fact that the main information disclosed on the television show was already known to the public and that in several cases the domestic authorities themselves had informed the media on certain aspects of family dispute and related procedures.
Consequently, the television report in question in which the applicant participated did not in fact provide information which was not already known to the public. In particular, the child’s name and the names of other stakeholders were already well known from previous media reports, as well as details of the course and stage of the proceedings in the N.G. case. In that context, the Court held that an alleged breach of N.G. can not, in itself, be justified by the fact that the information concerning N.G. and the due diligence process were made known to the general public, without considering how the information was made public.
The Court also notes that the domestic courts failed to take into account the fact that the applicant’s participation in the disputed television show was not aimed at satisfying the curiosity of a particular audience regarding details of a person’s private life. Indeed, as the Municipal Court itself found, the applicant had acted in good faith to protect N.G.’s interests by raising issues as to the malfunctioning of the social welfare services.
The reasoning of the domestic courts indicates that the above considerations were not taken into account, chiefly owing to a purely formalistic approach to the notion of the confidentiality of proceedings protected under Article 305 § 1 of the Criminal Code. Thus, for the Municipal Court, this was a simple case, as it was, in its view, clear that the applicant had disclosed confidential information from the administrative custody proceedings and thus committed a criminal offence under Article 305 § 1 of the Criminal Code. As already noted, this was accepted and endorsed by the County Court and the Constitutional Court.
In the Court’s view, such a formalistic approach by the domestic courts, contrary to the requirements of the Court’s case-law, led to them not conducting a proper review as to whether the interference with the rights protected by Article 10 of the Convention was justified.
In view of the foregoing, the Court places a particular emphasis on the domestic courts’ failure to examine all the relevant circumstances of the case in the light of the principles set out in the Court’s case-law.
Accordingly, there has been a violation of Article 10 of the Convention.
Just satisfaction: EUR 7,500 in respect of non-pecuniary damage, and EUR 4,170 in respect of costs