The surreptitiously taken photos of the applicant who was the Party Chairman partner at her exit from the hospital violated the respect for private life
JUDGMENT
Dupate v. Latvia 19.11.2020 (app. no. 18068/11)
SUMMARY
Photographes taken secretly of mother and newborn child as they leave the maternity clinic and their publication in the media. The applicant was the partner of the President of a political party, who was a public figure. Right to the protection of the privacy of the mother. Balancing privacy and freedom of expression.
Taking hidden photos of her leaving the maternity clinic with her newborn baby and posting them with an accompanying article, due to the fact that her partner was a public figure.
The national courts dismissed the applicant’s action, emphasizing in particular her status as a public figure, her and her partner’s attitude towards publicity and that the photographs had been taken in public and were not degrading.
The Court however, found that although the applicant had not been humiliated, the photos were taken secretly and the applicant was in a situation which she could not have avoided in practice. Thus, although the national courts had attempted to balance the applicant’s right to privacy with the journal’s right to freedom of expression, they had not done so adequately, not even in accordance with the case law of the ECtHR.
Strasbourg found a violation of the right to privacy (Article 8 of the ECHR) and awarded EUR 7,000 in respect of non-pecuniary damage.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Kristīne Dupate, is a Latvian national who was born in 1973 and lives in Riga.
At the time of the events in question, the applicant was a lawyer and her partner was the
chairperson of a political party and the face of an advertising campaign for Privātā Dzīve, a nationally
available celebrity-focused magazine. Previously, he had headed a State-owned company.
In 2003, Privātā Dzīve published an article about the break-up of the applicant’s partner’s previous
marriage, including pictures of the applicant and information about her pregnancy with their first
child. In 2004 the magazine published an article about the birth of the applicant’s second child,
including covertly taken photos – one of which was the cover photo – of her leaving hospital with
her child carrying baby paraphernalia and going to her car.
In 2006 she brought a case before the courts, claiming infringement of her right to respect for her
private life. The Riga City Central District Court found for her. Nevertheless, the magazine
republished the article and photos, alongside a statement that they disagreed with the judgment.
In subsequent appellate proceedings, the Riga Regional Court found against the applicant, noting in
particular the applicant’s status as the partner of a public figure, the applicant’s and her partner’s
attitude to publicity, that the photos had been taken in a public place, that they had not been
humiliating, and that the journalists involved had not tracked her daily life, rather they had focused
on one event.
A subsequent appeal on points of law was dismissed by the Latvian Supreme Court.
Relying on Article 8 (right to respect for private and family life), the applicant alleged that the
dismissal of her complaints regarding the publication of covertly taken photos of her and her
newborn baby had violated her rights.
THE DECISION OF THE COURT…
Article 8 (right to respect for private and family life)
The Court reiterated the importance of freedom of expression for democracies, but emphasised the
need to correctly balance that freedom with the protection of private life. It noted that news about
the private life of public figures generally benefitted from the protection of the Convention,
excepting where such news was private or intimate and where there was no public interest in its
publication. The Court considered that it had not been substantiated that the applicant’s partner’s
private life as such had affected the public at that time. Nonetheless, the information about the birth
of the child came within the public sphere and therefore was of some public importance – albeit less
that a political matter might be.
The Court agreed with the domestic courts that the applicant, as the partner of a public figure,
should have expected to be mentioned in the media as the child’s mother. However, it asserted that
the article in question went well beyond what could reasonably have been expected. The Court
stressed that a degree of caution was required where a partner of a public person attracted media
attention merely on account of his or her private or family life. In the present case, the domestic
courts had failed to make a distinction between relaying the information about the birth of the child
and the publication of the covertly taken photographs depicting the applicant in a private moment –
leaving hospital after giving birth. The Court also found that the applicant’s and her partner’s prior
and subsequent appearances in the media, which may have involved lesser interferences with their
privacy, had not turned the birth into a public event. Nor, indeed, did they excuse the particular
encroachment on the applicant’s privacy.
The Court emphasised that although the applicant had not been depicted in a humiliating manner,
the article had been a “photo story”, with the text of secondary importance. The shots had been
taken covertly, in a situation the applicant could not practicably have avoided – traversing the
hospital car park – and she had been followed to her home. The domestic courts had failed to
analyse these factors. As such the Court found that although the domestic courts had engaged in a
balancing exercise, they had failed to do so sufficiently or in line with the Court’s case-law.
There had therefore been a violation of Article 8 of the Convention.
Just satisfaction (Article 41)
The Court held that Latvia was to pay the applicant 7,000 euros (EUR) in respect of non-pecuniary
damage and EUR 532 in respect of costs and expenses.
