ANOTHER JUDGMENT REGARDING THE RIGHT TO PRIVACY VS. THE RIGHT TO FREEDOM OF EXPRESSION

#32Another judgment regarding the right to privacy vs. the right to freedom of expression

The European Court of Human Rights (ECHR) contributes to a traditional dispute – right to privacy vs. right to freedom of expression.

Originally, the applicant initiated legal proceedings for the protection of personality before the courts of the Slovak Republic. At that point, plaintiff (the applicant) filed an action for the protection of personality against the publisher of a journal. The lawsuit was based on the fact that in one of the journals the plaintiff published an advertisement that he and his partner were looking for an adult woman willing to marry and give birth to a child for them.

A journalist from a television program, responded to this advertisement under a false identity, met with plaintiff and his partner, and made an audiovisual recording of this meeting with a hidden camera. This recording was subsequently broadcasted on public television. Based on the television report, the defendant (the publisher of the journal) published an article entitled "Business with Unborn Children!".

Following the applicant's procedural setbacks in the proceedings before the District Court Bratislava II, the Regional Court in Bratislava and, finally, the Constitutional Court of the Slovak Republic, the plaintiff (the applicant) turned to the ECHR.

The ECHR applied traditional criteria in evaluating the application:

1. how well publicly known is the person concerned?
2. what is the previous conduct of the person concerned and the subject-matter of the contested article?
3. was the publication of the article in the form used beneficial to the discussion in the general interest?
4. how were the photographs used in the article obtained?

In this case, the ECHR reached the following conclusions:

The applicant is not a public figure and could not expect to be recorded during his communication with a person who responded to his advertisement, nor could he expect this person to use a false identity and record and share his identity, with a view of publishing a sensation on public television.

On the contrary, to the detriment of the applicant, the ECHR agreed with the conclusions of the courts of the Slovak Republic, confirming that this was a matter of public interest. Regarding the content and way, the newspaper presented the above facts, the court found that it had portrayed the applicant in a negative light, which, however, was not in itself an infringement of his rights.

However, the court saw the problem in publishing the applicant's photographs. The court did not see a legitimate reason why, in addition to the content of the article, the publication of a photograph of the applicant's face was necessary to point out a question of public interest.

In conclusion, the ECHR found that the publisher of the newspaper, before publishing the article, should have taken into account that the recording of the interview with the applicant was taken by a hidden camera, without the applicant’s knowledge and essentially the reporter misleading him into believing in having a genuine interest in responding to the advertisement. The ECHR thus found that there had been a violation of Article 8 of the European Convention on Human Rights, i.e., the right to respect for the applicant's private and family life.