A misconceived balance by the domestic courts in Dupate v. Latvia

By Evangellos Orestis Vouvonikos (Phd in Public Law, University of Athens, Attorney in Law)

Introduction

On the 19^th November 2020, the European Court of Human Rights (ECtHR) delivered its judgment in Dupate v. Latvia (application no. 18068/11). In this case, the ECtHR dealt with an alleged violation of respect of the applicant’s private life (Article 8 of European Convention on Human Rights (ECHR)). The appeal was based on the publication of an article in a popular magazine, in which the applicant was photographed without her consent, while exiting a maternity clinic, after giving birth to her second child. Unlike the Latvian courts, the ECtHR assessed that there had been a violation of Article 8 ECHR. According to the Court, the Latvian authorities had not satisfactorily balanced the freedom of press against the protection of private life.  

In the present case, the Court has been given the opportunity to reiterate its key positions on a highly important aspect of private life: the conflict with freedom of the press. In my opinion, the crucial point of this decision is the Court’s focus on the relation of journalistic work to the public interest: according to this decision, protection increases as journalistic work relates to issues of general interest. 

Facts

The applicant Kristine Dupate is a Latvian citizen and lawyer, born in Latvia and residing in Riga. At the relevant time, the applicant’s partner was the president of a political party. From 1995 – 2001 he was managing a state-controlled company. Furthermore, he had been the main figure of an advertising campaign of a renowned magazine called Privātā Dzīve, which had a great national circulation. In sum, the applicant’s partner was a well-known, public figure in Latvia.

In 2003, a publication, with a reference to the relationship of the applicant with her partner, accompanied by two photographs of the applicant appeared in Privātā Dzīve (§§5 and 6). The disputed article was published in Privātā Dzīve on 30 November 2004. The article was accompanied by nine covertly taken photographs of the applicant and her partner leaving the maternity hospital. There was also a comment on the items the applicant took with her to the clinic (§§7 and 8). Moreover, on the cover of the magazine was a photograph of the applicant that was secretly taken, accompanied by the following comment: “One year on [J.N.] has another child”.

The applicant complained before the domestic courts, that her right to respect for her private life was violated, because she had been photographed without her permission, in a strictly personal moment which could not be considered a matter of general interest. 

The Riga City Central District Court accepted the applicant’s claims, recognizing the violation of respect for her private life. The domestic court specifically assessed the applicant’s lack of consent to the photographs. However, on 30 January 2007, Privātā Dzīve republished the disputed photo article, ignoring the domestic’s court ruling on the basis of which they could not publish the photos anymore (§§9 – 11).

Subsequently, higher domestic courts overruled the applicant’s appeal. More specifically, the Riga Regional Court regarded, among others, that the applicant had exposed herself to a certain degree of publicity, that she was the partner of a public figure and was therefore obliged to expect a certain kind of interference in her private sphere and that the article was not offensive. It juxtaposed its judgment with that of the Court in the case of Von Hannover v. Germany, 2004, §§12 – 17). In the case of Von Hannover v. Germany the ECtHR found a violation of Article 8 ECHR. Here, the applicant was a member of Prince Rainier’s family and for this reason a public figure. She had undergone the publication of a series of photographs in several magazines (§§53 and 61). The highest domestic court of Latvia (Supreme Court) moved in the same direction, citing the decision of the Court in the case of Peck v. the United Kingdom, 2003, §§18 – 22). In this case, the Court found that photographs taken in public space could not, as such, interfere with the right to privacy (§59). Thus, having exhausted all domestic remedies, the applicant filed a complaint to the ECtHR claiming a violation of Article 8 of the Convention.

Judgment of ECtHR

The applicant submitted that Article 8 of the Convention had been violated on the grounds that the domestic law did not correctly regulate the balance between freedom of expression and her right to private life. The applicant argued that the domestic courts had not correctly assessed that the photographs in question reflected part of her private life. According to the applicant, the domestic courts also did not adequately explain why the applicant’s debate on her private life concerned the general public (§§34 – 39).

The ECtHR first decided that there had been an interference with the applicant’s right to a private life, due to the fact that the applicant had been unknowingly photographed and the footage had been published in a national magazine (§§43 – 45).

On the merits, the ECtHR repeated the importance of Article 10 ECHR for the protection of freedom of speech and particularly the freedom of press (see for example Von Hannover v. Germany, 2004, §101 and Rizos and Daskas v. Greece, 2004, §41). However, it highlighted that a balance with an individual’s right to private life is required. The Court reiterated that there is generally a greater tolerance when the media disclose information related to public figures. The protection of the privacy of a public person further recedes provided that the disclosure of information is reasonably linked to an event of general interest (see for example Couderc and Hachette Filipacchi Associés, 2015, §§100 – 103).

With regards to the present case, the Court assessed that the domestic courts did not adequately balance the right to private life against that of the freedom of speech, as they did not implement the relevant criteria which have been formed in its jurisprudence. In particular, the domestic courts did not take into account the necessary distinction between information that may be of public interest and information that strictly corresponds to the individual’s private sphere. They should have paid more attention to the fact that the photographs depicted a sensitive aspect of the applicant’s life (§§74 and 75).

The ECtHR focused specifically on the following elements of the case. Firstly, even if a publication concerns a public figure, it is not certain that the depiction of their strictly private life contributes to the rightful interest of the citizens. According to the Court, part of a public person’s private life could justifiably be news, as long as it does not belong to the narrow core of the concept of personal life. Furthermore, an increased attention of domestic courts was required, since the applicant herself was not a public figure (§57). 

The domestic courts did not sufficiently explain how the secret photographs of the applicant’s exit from the clinic, could be characterized as a matter of general interest (§62). The previous exposure of the applicant to the mass media, did not automatically justify the restriction of her right to private life (§§64 – 66). Evaluating the circumstances during which the photographs were taken, the Court pointed out that the route out of the hospital, which the applicant followed, was compulsory and that she did not intend to be exposed to the media (§71). The previous conclusions of the ECtHR are not annulled by the ascertainment that the photographs were not offensive (§68). Finally, the ECtHR unanimously ruled that there had been a violation of Article 8 of the Convention.

Comment

Τhe jurisprudence of ECtHR has previously established two firm criteria, that allow for restrictions to the right to respect of private life, if fulfilled. Namely, if an issue causes public interest and the individual concerned is a public or political individual. In its jurisprudence, the ECtHR seeks to balance the two rights at issue. Thus, public figures also have the right to the protection of their privacy. On the other hand, in cases where the above criteria are met, there should be room for freedom of speech, in order to avoid the risk of chilling effect against journalists. (see, for example, the Court’s decisions in Lingens v. Austria, 1986, §42, Prager and Oberschlick v. Austria, 1995, §38 and Lombardo and others v. Malta, 2007, §61). However, in the present case the applicant was not a public figure herself. This means that she should not accept any violation of her right on safeguarding cases of private or family nature (§§55 – 57).  

Similarly, in §40 of the commented upon decision, the Court confirms the broad scope of the notion of private life under article 8 ECHR, including the wish of individuals to freely shape their image towards others, as an extension of the concept of their private lives and personal identities (see, for example, S. and Marper v. the United Kingdom, 2008, §66 and Rubio Dosamantes v. Spain, 2017, §32).

In the case of Dupate v. Latvia, the ECtHR repeated some recently developed criteria upon which member states of the ECtHR are expected to balance the right of freedom of speech with protection of respect for private life. These criteria, which limit journalistic speech, were adopted by the Court in the case of Balaskas v. Greece, 2020, §38). In line with these criteria, a publication should mainly be evaluated as to how much it contributes to the furtherance of public dialogue. The negative publicity, that a person suffers from the publication, should be examined, as well as the publication’s content, the previous behavior of the individual involved, the form and consequences of the disputed publication and the circumstances under which the photographs are taken (§46). 

Another element which should also be specifically considered by domestic authorities is the motive of media coverage. If such coverage is not interwoven with issues that have a political or other general interest, the margin of appreciation of the domestic authorities is narrow. The ECtHR points out that, the protection of respect for private life cannot retreat when the sole purpose of an article is satisfying the curiosity of the readers (§48). For this reason, in the present case, the Court has adopted a very interesting criterion: those journalistic articles that are solely aimed at satisfying the curiosity of the reading public may not be protected by Article 10 ECHR (§51). To this effect, the reproach of the applicant further reinforced, given that, the above stance of the Court is implemented even for public figures (§§50 – 53). As mentioned earlier, the article in question was accompanied by a possibly offensive title concerning the birth of the applicant’s child (“One year on [J.N.] has another child”, §7). At the same time, even for the applicant’s partner, who was a public figure, the Court did not accept that the moments concerning the birth of his second child could be described as a matter of general interest (§52).

 In the present case, it seems that the ECtHR also introduced a highly important clarification regarding the criterion of ‘public place’. It follows that domestic authorities should evaluate the specific circumstances of every case. Hereby, the Court diverted from its judgment in the case of Vučina v. Croatia, 2019, §§35 and 36. The applicant in the latter case was photographed at public concert, where a large number of participants, among which celebrities, were present. The ECtHR took the view that she could reasonably expect the presence of journalists. In the present case however, the ECtHR did not agree with the rather simplified approach of the Latvian courts (§20). The presence of the applicant in a public space should have been evaluated taking into account the specific circumstances under which the photographs had been taken. It was not sufficient that she was in a public space. In this regard, the Court added weight to the fact that the presence of the applicant in the public area at the exit of the clinic was very brief and absolutely necessary in order to move. Furthermore, no evidence suggested her consent to be photographed (§§43 and 44).  

Conclusion

Perhaps the most important element of this judgment is the fact that the Court further clarified its position on permissible restrictions on journalistic freedom. It recognized the increased protection of the press as a ‘public watchdog’ (§53) when journalistic work can promote public debate. However, private moments, even those of public figures, should be adequately protected. In my view, we must uphold the Court’s finding that protection under Article 10 of the Convention is not a given when a journalistic article is intended solely to arouse the curiosity of readers. In addition, the Court seems to uphold even more criteria against which media interventions should be evaluated.

Consequently, domestic courts should be more careful when dealing with a case where they need to balance an individual’s private life against the freedom of press. They need to look more closely at the nature and motivations behind the journalistic work.