March 01, 2024
By Dr Donatas Murauskas
Should anyone be left to the mercy of trial by media? ‘Never ever. Under no circumstances,’ underlines judge Kūris in his elaborated dissenting opinion in Mesić v. Croatia (no. 2), criticising the Chamber reasoning that sets ‘a very low standard for the protection of personality rights’. The case-law develops, and new contexts emerge. One of the more intriguing cases of the last few months is Narbutas v. Lithuania. This judgment yet again touches upon a precarious interlink between one’s right to private life and freedom of expression in the context of pre-trial investigation and its exposure to the media.
The society has a grounded interest to be informed about issues of vital importance. Especially, if such an issue concerns the purchase of the Covid-19 tests in the middle of the pandemic. The judgment in the case of Narbutas v. Lithuania is set in that context. Among other facets, the case is interesting in light of specific interconnection between Articles 8 and 10 of the Convention, related to one’s efforts to maintain their reputation during a pre-trial investigation. This case underscores the severe repercussions of inadequate communication safeguards during a high-profile investigation, revealing the profound impact on both reputation and personal life.
During the Covid-19 pandemic, world governments urgently prioritised acquiring as many Covid-19 tests as possible. ‘We have a simple message to all countries – test, test, test,’ underlined the World Health Organisation Director General in March 2020. That is when Mr. Narbutas, a lawyer and a former president of the Lithuanian Cancer Patient Coalition, negotiated the acquisition of purchases of Covid-19 tests for Lithuania with a Spanish pharmaceutical company. As an intermediary between the Ministry of Health and the company he was paid 1 euro for every purchased test.
Later that year, the Special Investigations Service notified Mr. Narbutas that he was suspected of ‘trading in influence’ – a criminal offence under the Lithuanian Criminal Code. It was alleged that he had requested and accepted a bribe of EUR 303,360, disguised as commission, from the pharmaceutical company, in exchange for which he, using his social status, contacts or other possible or supposed influence, had convinced several people in charge of the response to the pandemic to purchase tests from the company.
Several pre-trial investigation measures followed. First, the applicant was confined to his home from 10 p.m. to 6 a.m., obliged not to contact certain people, and not to enter the Ministry of Health or any institutions under its aegis (notably, he was at the time receiving treatment for cancer). Second, the prosecutor also ordered the seizure of his bank accounts and his car to secure against a possible civil claim. Third, the Special Investigations Service published a press release naming the applicant, disclosing some of his employment history and detailing the allegations against him. At the same time, the prosecutor warned Mr. Narbutas not to disclose any information about the pre-trial investigation to unauthorised individuals.
The applicant raised complaints under six Convention articles. The Strasbourg judges found violations of four of them. First, the Court found a violation of Article 5 of the Convention, considering that the authorities disregarded domestic legal provisions by placing the applicant in provisional detention. Second, the Court indicated that the authorities failed to strike a fair balance between the authorities’ right to inform the public of the pre-trial investigation and the applicant’s right to respect for his private life, including his reputation, under Article 8 of the Convention. Third, the Court acknowledged that the restriction to the applicant to make comments about his case was not sufficiently justified by the authorities, resulting in a violation of Article 10 of the Convention. Finally, the Court indicated that the temporary seizure of the applicant’s bank accounts was disproportionate – a violation of Article 1 of Protocol No. 1 of the Convention.
The Chamber declared Mr. Narbutas’ complaint under Article 6 inadmissible. The Court supported the Government’s argument that the applicant did not exhaust effective domestic remedies because it had been open to him to lodge a civil claim for protection of his honour and dignity against anyone, including State officials.
The Court also decided that the restriction to attend healthcare facilities did attain the threshold of severity under Article 3 of the Convention. However, the Strasbourg judges referred to the case-law requiring the applicants to support allegations of treatment contrary to Article 3 by appropriate evidence and acknowledged that Mr. Narbutas did not provide any medical evidence showing that the worsening of his health had been caused specifically by the contested measure.
Let’s turn to the privacy element of this case first. The Narbutas case highlighted how the media and public authorities can trigger an uncontrollable spiral of media coverage, tarnishing a person’s reputation long before any trial takes place. In this case, the Court had the opportunity to examine how authorities not only legitimised themselves by publicly identifying the applicant as the subject of their investigation but also restricted his ability to counter this disclosure by denying his right to respond.
The outcome of the balancing exercise involving the right to privacy and the public interest highly depends on the context of the situation. The immense influence of the media is evident when it reveals minor details to those eager for information. Seemingly innocuous revelations can lead to significant consequences, including challenges in securing future employment and even loss of lives, due to the psychological effects of privacy invasion through widespread public scrutiny. What level of sensitivity is required to maintain a balance between an individual’s privacy and the public’s right to know? Are there specific guidelines that dictate how public officials should communicate with the public about high-profile investigative matters?
In the Narbutas case the authorities decided to announce that the applicant was suspected of a serious crime, including his name and surname in the press release. Later, the applicant was escorted to court by police officers, with his arms restrained behind his back—a practice still employed by pre-trial authorities in Lithuania. Criminal law attorney Dr. Merkevičius noted that the Strasbourg court criticised the ‘traditional behavioural algorithms of law enforcement officers’ in this case, which involved ‘pointless, unjustified detention, unwarranted temporary seizure of the applicant’s assets, and the increasingly common restriction on suspects’, even their attorneys’, ability to comment on the case.’
As the case exploded into one of the most debated national issues, the applicant’s actions became a synonym of profiteering during a health crisis. The national authorities justified the publicity by citing national regulations that permitted the publication of information regarding ongoing investigations. The Court ‘ha[d] doubts with regard to the aim pursued [by the regulation], specifically, by the disclosure of the applicant’s identity […]’ (Narbutas judgment, para 246). Yet, the Court decided to assess whether the measure in question was necessary in a democratic society and left the question about the legitimacy of the aim of the regulation open.
The Court conducted a necessity analysis, assessing the criteria developed in its case-law, namely (i) the contribution to a debate of public interest, (ii) the degree of notoriety of the person affected, (iii) the subject of the news report, (iv) the prior conduct of the person concerned and the (v) content, form and consequences of the publication.
First, the Court made an important conclusion that the applicant could not be considered a public person. The question whether Mr Narbutas could be considered as a public person is not obvious. The Court acknowledged that the applicant was somewhat publicly known because of his involvement in cancer patient advocacy, which included roles in non‑governmental organisations, board membership of certain healthcare facilities and participation in governmental working groups. However, the Court referred to the Lithuanian Constitutional Court case-law, according to which ‘a person’s official position or his or her participation in public activities is not sufficient, in and of itself, for him or her to be considered a public figure’ (Narbutas judgment, para 258). The Narbutas judgment exposes that there might be circumstances that could not give us a clear indication whether the person could be considered a public person, enabling other criteria to assist the necessity of the measure test.
Further, the Court indicated that the applicant did not provoke the media interest, underlining a specific issue that the applicant reacted to the information disseminated by the authorities, in an attempt to defend his reputation – the Court indicated this argument in connection with the applicant’s complaint under Article 10. Finally, the Court analysed the consequences of the prosecutor’s statements and made a conclusion that they ‘amounted to a moral judgment of the applicant, expressed in strong and unambiguous terms and liable to damage his reputation’ (Narbutas judgment, para 264). The prosecutor’s statement exceeded the requirements for impartiality when informing the public, venturing into territory that was not necessary. The Court recognised the emotional excess that catered to the public’s appetite for sensational news and significantly damaged the applicant’s reputation.
The Court concluded its Article 8 violation analysis by emphasising what could be deemed as the most crucial aspect in modern times: the influence of online news and its impact on individual rights. Noting that the statements about Mr. Narbutas made by the authorities were readily accessible online, the judges referred to the case of M.L. and W.W. v. Germany, stressing that ‘the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press, particularly on account of the important role of search engines’ (Narbutas judgment, para 266).
This insight underlines the importance of preventing trial by media and highlights the aspect of privacy intrusion that deserves special attention from the Court. Following the extensive media coverage of the case, journalists approached the applicant (a seemingly natural progression). The applicant began granting interviews and offering public statements. However, a subsequent development occurred when authorities summoned the applicant and cautioned him against disclosing information about the pre-trial investigation to unauthorised individuals. The applicant argued that his public comments were merely reactions to disclosures made by the authorities. Conversely, the Government contended that the applicant had extensively participated in interviews and made comments on social media, suggesting he was using the publicity as a defence strategy. This shifted the applicant’s situation into the context of Article 10 of the Convention.
Could the comments be considered as part of a defence strategy? Yes. Should the applicant be allowed to make them? The answer is the same. We need not forget the rationale behind the publicity of legal proceedings, which aims to ensure that society is sufficiently informed about on-going investigations. However, in our times, the publicity often spirals out of control of legal authorities due to the nature of contemporary communication channels. This is why ‘trial by media’ should be considered by the Court seriously and the right to respond need not be forgotten.
The Court considered several important circumstances of the case. First, based on the warning and the significant amount of information already in the public domain, it was not clear what information the applicant was not allowed to disclose. Second, the judges did not find any evidence indicating that the applicant disclosed information pertaining to secret surveillance measures. Third, the senior prosecutor who dismissed the applicant’s claim about the unlawfulness of the warning reasoned that the applicant’s communication could potentially influence public opinion regarding the investigation. Importantly, the authorities’ issued the warning not to disclose any confidential information. However, the prosecutor’s dismissal of the applicant’s claim was based on a different ground – the potential to influence public opinion about the on-going investigation. This inconsistency also exposes the ungrounded nature of the restriction at issue.
The case could be an example of the Court seriously considering the right to respond in the context of an on-going ‘trial by media’. The Court underlined the importance of the applicant’s disadvantageous status, allowing investigation authorities and State officials to comment on the case while restricting the applicant from defending his reputation.
The Strasbourg Court’s consideration was grounded in another judgment, Mesić v. Croatia, wherethe Court considered the restriction to comment about criminal investigation as placing a person in more disadvantageous position compared to the politician who enjoyed significant media attention (Mesić judgment, para 110).In the Narbutas case, the Court addressed this right to respond by establishing the idea that the person should be allowed to react to the on-going ‘trial by media’.
The Court entrenched this idea in the rule formulated in para 299 of the judgment: ‘where a case is widely covered in the media on account of the seriousness of the facts and the individuals likely to be implicated, an individual cannot be penalised for breaching the secrecy of the judicial investigation where he or she has merely made personal comments on information which is already known to the journalists and which they intend to report, with or without those comments’. The importance of the formulation of this rule cannot be overstated. It gives leeway to react to persons amid on-going media coverage, acknowledging the importance of a timely response in such situations. The fact that the national authorities unlawfully published some information may be appealed in domestic proceedings later, but the Court stressed the need to deal with the consequences urgently.
The Strasbourg Court is developing its case-law related to online exposure of investigations and trials. The interplay between the rights to privacy and freedom of expression is becoming more and more pertinent in our times. As T. G. Ash notes in his seminal book ‘Free Speech’, ‘privacy is […] a condition of free speech. […] [T]he ability to choose what you wish to keep private, and then to have confidence that this choice will be respected, is such a condition’ (p. 285). In the Narbutas case the Court makes an important step to ensure the possibility to individuals to address the allegations made by public authorities (or other persons) as a tool to mitigate the unfair balance between the parties in the escalating media campaign. That is yet another step towards the recognition of the right to respond to allegations about oneself in the media.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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