The ECHR ruling of July 01, 2021 in the case "Hadzhovsky v. Slovakia" (complaint No. 7796/16).
In 2016, the applicant was assisted in the preparation of the complaint. Subsequently, the complaint was communicated to Slovakia.
In the case, a complaint was successfully considered against the publication in the newspaper of private information and clear photographs of the applicant taken secretly and under the pretext of committing other actions. There was a violation of article 8 of the Convention in the case.
CIRCUMSTANCES OF THE CASE
After the publication in a national daily newspaper of an announcement about the search for a surrogate mother, the applicant learned that he had become the hero of a television report made by a journalist who recorded her meetings with the applicant, pretending to be a candidate for surrogate mothers. After the report in a popular national newspaper, an article was published in print and online under the heading "Trafficking in unborn children". The article described the applicant's story as in a television report, contained private information about him, as well as photographs of the applicant from the report taken without his consent. Although the applicant filed a successful claim against the Slovak television channel for the protection of personal integrity, a similar claim against the newspaper's editorial office was rejected.
In the present case, the question was whether the Slovak courts had struck a fair balance between the protection of the applicant's privacy and the defendants' rights to freedom of expression. Thus, the European Court considered, in the light of the case as a whole, whether the decisions of the Slovak courts, adopted in accordance with the discretion granted to them, met the criteria developed in the case-law of the European Court. In particular, the European Court considered the following applicable criteria.
(a) To what extent the applicant was a well-known person; the applicant's behavior before the publication of the article on this issue and the subject of publication. The Slovak courts considered, in particular, that by publishing the announcement, the applicant decided to enter the publicly accessible sphere and, therefore, could expect increased attention from the public, especially since his identity had already been disclosed in a television report. However, the mere fact that he used the advertisement service like another ordinary person could not serve as an argument in favor of reducing the degree of protection that should have been provided to him under article 8 of the Convention. The applicant was not a public or well-known person within the meaning of the case law of the European Court, did not try in any way to inform the public about himself by placing an ad - this fact only testified to his willingness to turn to commercial surrogacy with the promise of confidentiality. In addition, the applicant could not have suspected that by talking to a person who contacted him as a potential surrogate mother, he risked that his conversation would be recorded, and data about his identity and intentions would be published in the media. Accordingly, the assessment of the applicant's previous behavior was erroneous.
As for the subject of the publication, the article contained some facts from the applicant's private life. However, since the article also reported on the participation of unnamed doctors who assisted in the procedure of artificial insemination and forgery of documents, and also taking into account the absence of relevant legislation that would regulate such practices in Slovakia, the European Court agreed with the conclusions of the courts of the respondent State that the article was aimed at informing the public about the issue of surrogate motherhood.
(b) The content and form of the article, the consequences of its publication. The article contained some information about the applicant's past, about his intentions, as well as his negotiations with a fictitious surrogate mother. The article expressed indignation that, although trafficking in unborn children was illegal in Slovakia, the applicant could not be brought to justice. The Slovak courts found that the article did not use any harsh or vulgar expressions aimed at slandering the applicant or creating a scandal around him, and that the critical judgments set out in the article were based on information that, although not sufficiently accurate, was true in substance. Despite the fact that the article portrayed the applicant in a rather negative and unsightly light, in the circumstances of the present case and taking into account the previous television report, this was not enough to establish a violation of the applicant's right to respect for his private life.
(c) Contribution to the discussion of an issue of public interest. The determination of what exactly was of public interest depends on the circumstances of the case. In the present case, when evaluating the publication as a whole, the article could be considered as part of a written debate that was probably of interest to society. Although the article said little about the phenomenon of surrogacy, it was published two days after the broadcast of the report, which, according to the Slovak authorities, caused a "public storm" and, thus, was closely related to the events in question.
However, with regard to the potential contribution to disputes on a matter of public interest, the fact of the publication of the applicant's photographs, nothing in the materials of the article or the case file confirmed the existence of any public interest reasons for the publication of photographs without special precautions, such as masking the applicant's face. Taking into account that the applicant was not known to the public (with the exception of the television report), there was nothing to suggest that the publication had any informative value or that it was used in an appropriate and adequate manner. The Slovak courts also did not confirm with any relevant and convincing arguments their conclusion that the publication of photographs was necessary for the purpose of news reporting within the meaning of part three of Article 12 of the Slovak Civil Code. Thus, although the article dealt with a matter of public interest, it could not be considered that the method of creating the article, namely the publication of large-scale photographs of the applicant, contributed to any dispute on a similar issue.
(d) The circumstances under which the photographs were taken. The European Court reiterated that the task of disseminating information necessarily includes "duties and responsibilities", as well as the boundaries that the media had to adhere to from time to time. In the present case, the Slovak courts seem to have attached particular importance to the fact that the applicant's identity had already been revealed in a television report. Indeed, this factor could be taken into account when balancing opposing interests, and it could lead to the conclusion that there is no need to restrict the disclosure of personal data. However, the fact that the information had already become public did not necessarily mean the loss of protection from article 8 of the Convention, especially if the affected person did not disclose the information himself or herself and did not consent to it. Thus, despite the fact that the information in question was already known to the public, further disclosure of such "public information" still had to be compared with the applicant's right to privacy, which also meant protection from invasion of personal space.
It was not disputed in the present case, but it clearly followed from the television report that the journalist contacted the applicant under a fictitious pretext and made recordings with a hidden camera when the applicant did not know about it and did not consent to the shooting. The applicant also did not consent to the publication of his photographs. Since the applicant could not have expected to be reported on or published in the media, and since he did not voluntarily cooperate with the media, his reasonable expectation of privacy was a significant, though not necessarily decisive factor. In addition, although it was established that the materials about the applicant were obtained illegally and broadcast in violation of the requirements of the law, this circumstance was not taken into account by the courts of Slovakia. The courts of the respondent State also did not assess whether the journalist acted in good faith, with the necessary observance of the rules and taking the necessary precautions when distributing information obtained from another source. The circumstances under which the photographs were taken should have indicated to the journalist and the newspaper editor the need to use these materials with caution and not publish them if the applicant's face is not obscured.
Given the above, or rather an incorrect assessment of the applicant's previous behavior, the lack of an assessment of the way in which the applicant's photographs were obtained, and, most importantly, the lack of an assessment of what contribution was made to the process of discussing a publicly significant dispute by the fact of the open distribution of the applicant's photographs, the Slovak courts did not balance the opposing interests according to the criteria developed in the case law of the European Courts. In such circumstances, and despite the discretion granted to the Slovak courts in this area, the Slovak authorities have not fulfilled their positive obligation under article 8 of the Convention.
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court decided that the finding of a violation of the Convention in itself is sufficient just compensation for any moral damage caused.