Private persons
RELEVANT LEGAL FRAMEWORK 14. The right to protection of a person’s personal integrity is guaranteed by Articles 11 et seq. of the Civil Code (Law no. 40/1964 Coll., as amended). 15. Pursuant to Article 11, natural persons have the right to protection of their personal integrity, in particular their life and health, civil and human dignity, privacy, name and personal characteristics. 16. Article 12 § 1 provides, inter alia, that audio recordings concerning natural persons, or their statements of a personal nature, may only be made or used with the consent of the person concerned. Under paragraph 2 of that Article such consent is not required where the documents or recordings are used for official purposes in accordance with the law. Article 12 § 3 provides that pictures and audio recordings can also be made and used in an appropriate manner, without the consent of the person concerned, for scientific and artistic purposes and also for news reporting by the press, film, radio and television. Such use cannot, however, be contrary to the legitimate interests of the person concerned. 17. Pursuant to Article 13 § 1, all natural persons have the right to apply for an order restraining any unjustified interference with their personal integrity, an order cancelling out the effects of such interference, and an award of appropriate compensation. Article 13 § 2 provides that in cases where the satisfaction afforded under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 18. The applicant complained that the dismissal of his action against the newspaper publisher amounted to a violation of his right to respect for his private life, as guaranteed by Article 8 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.” Admissibility 19. It is clear from the Court’s case-law, and the Government accepted, that Article 8 is applicable in the circumstances of the present case. The applicant’s allegation that his right to protection of his private life was infringed as a result of the publication of the article in question and the photographs raises serious issues of law and fact which require examination on the merits. 20. The Court accordingly concludes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions 21. The applicant was convinced that the domestic courts, by underestimating the importance of his right to respect for his private life and not having it as a central focus, and by considering the case only from the perspective of the publisher’s freedom of expression, had failed to reach a fair balance between the competing rights at stake. 22. While the applicant did not contest that the publisher could legitimately publish an article about surrogacy in order to initiate a public debate, he argued that there had been no pressing social need to illustrate that topic using his own story, which disclosed his identity and private aspects of his life. The publication of his pictures had not, in any manner, contributed to a discussion about surrogacy; its only goal had been to create a scandal about him, cause a sensation and increase the number of readers. 23. Referring to the Court’s case-law, the applicant contended that the duties and responsibilities stemming from Article 10 § 2 of the Convention require that journalists act in good faith in order to provide accurate and verified information in accordance with the ethics of journalism. However, in the instant case, the courts had stated in rulings on his claim against Slovak television that the recordings which had been broadcast in the television report (and subsequently used in the relevant newspaper article) had been acquired unlawfully, and that the television report itself (which had provided a basis for the article) had been broadcast in breach of the law (see paragraph 7 above). That unlawful disclosure of his identity in the initial report could not give anyone permission to publish his pictures, all the more so because such use was contrary to his legitimate interests, but the courts had failed to recognise that argument. The applicant further asserted that, although the publisher must have been aware of the unlawful origin of the material it had intended to publish, it had not tried to ascertain his position or to seek his consent to its publication. 24. Lastly, the applicant emphasised that he had not committed any unlawful actions, therefore the journalist’s accusatory statements calling for his punishment could not be considered as value judgments based on true facts, as submitted by the Government. 25. The Government referred to the Court’s case-law on Article 8 of the Convention but also to the principles established in the field of freedom of expression (citing Ringier Axel Springer Slovakia, a.s. v. Slovakia, no. 41262/05, §§ 94-100, 26 July 2011, with further references), from which it followed that expression protected by Article 10 of the Convention did not amount to an unjustified interference under Article 8. 26. As to the question whether the State had met its positive obligation to protect the applicant’s privacy from interference by a private publishing company, the existence of which interference was not contested, the Government shared the opinion expressed by the domestic courts after having duly assessed all the relevant circumstances of the case. The courts had correctly held that the applicant had brought himself within the public sphere and had attracted public and media attention by publishing the advertisement in which he had announced his private intentions. It was to be emphasised that the newspaper article in question had been published two days after the television report had been broadcast, which report had already revealed the applicant’s identity, and had caused a “public storm”. The Government further concurred with the courts’ conclusions that surrogacy was an issue of public interest which had a moral and ethical dimension. 27. The Government was convinced that, in exercising its freedom of expression, the publisher had complied with its duties and responsibilities within the meaning of the Court’s case-law, since it had acted in good faith and in accordance with the ethics of journalism, with the aim of providing accurate and reliable information. All of the facts mentioned in the article had been based on the applicant’s own advertisement, and the terms used could not be considered as defaming or ridiculing him. The applicant’s assertion that the value judgments expressed in the article had not been based on the truth (see paragraph 24 above) had been refuted by the domestic courts, which had held that they had had a sufficient factual basis (see paragraph 11 above). Moreover, the applicant’s pictures had already been previously revealed in the television report; thus, the publisher had not had any reason to further protect the applicant’s identity and could publish the pictures without the applicant’s consent, with a view to reporting on questions of public interest. 28. The Government therefore contested the argument that the domestic courts had failed to apply standards stemming from the principles established in the Court’s case-law or that they had failed to base their conclusions on an acceptable assessment of the relevant facts. They maintained that the courts had sufficiently reasoned why the protection of the publisher’s freedom of expression outweighed the applicant’s right to respect for privacy, and that they had reached the necessary fair balance between those competing interests. The Court’s assessment (a) General principles 29. The Court observes that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which extends to a number of aspects relating to personal identity, such as a person’s name or image, and furthermore includes a person’s physical and psychological integrity (see, for instance, Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI, and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, ECHR 2017). This concept also includes the right to live privately, away from unwanted attention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 ‑ IX). A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image presupposes the right to control the use of that image. While in most cases it entails the possibility to refuse publication of the image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 87 and 89, 17 October 2019). 30. Proceeding from the assumption that the present case requires an examination of the fair balance that has to be struck between the applicant’s right to the protection of his private life under Article 8 and the publisher’s right to freedom of expression as guaranteed by Article 10, the Court notes that the principles with respect to the State’s positive obligations and the criteria for balancing the protection of private life against freedom of expression were set out in the Court’s judgment in Von Hannover (cited above, §§ 57-60) and have subsequently been elaborated in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 95-113, ECHR 2012); Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 78 ‑ 95, 7 February 2012); and Couderc and Hachette Filipacchi Associés v. France ([GC], no. 40454/07, §§ 83-93, ECHR 2015 (extracts)). As identified in those cases, the main criteria of assessment are contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which photographs were taken. 31. Although freedom of expression includes the publication of photographs, this is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance, as the photographs may contain very personal or even intimate information about an individual and his or her family (see Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 30, 16 January 2014, and Dupate v. Latvia, no. 18068/11, § 47, 19 November 2020). In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photographs or articles in the press to a debate of general interest. In its 2004 judgment in Von Hannover (cited above, §§ 60-66) the Court made a distinction between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society, and reporting details of the private life of an individual who does not exercise official functions. While in the former case the press exercises its vital role of a “watchdog” in a democracy by imparting information and ideas on matters of public interest, it does not do so in the latter case. Where the situation does not come within the sphere of any political or public debate and published photographs and accompanying commentaries relate exclusively to details of the person’s private life with the sole purpose to satisfy the curiosity of a particular readership, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, §§ 60-66, and Couderc and Hachette Filipacchi Associés, cited above, §§ 100-103). (b) Application to the present case 32. The issue in the instant case is whether the domestic courts ensured a fair balance between the protection of the applicant’s private life and the right of the defendant to freedom of expression. In exercising its supervisory function, the Court’s task is to review, in the light of the case as a whole, whether the decisions taken by the domestic courts pursuant to their power of appreciation are in conformity with the criteria laid down in the Court’s case-law. 33. In the circumstances of the present case, the Court considers it appropriate to examine the applicable criteria (see paragraph 30 above) in this specific order: how well-known is the person concerned; the prior conduct of the person concerned and the subject matter of the article; the content, form and consequences of the publication; the contribution to a debate of general interest; the method of obtaining the photographs. (i) How well-known was the applicant, the applicant’s conduct prior to the publication of the article in question and the subject matter 34. The present case differs from the above-cited ones in that the applicant was not a public or newsworthy figure within the meaning of the Court’s case-law (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002, and Reklos and Davourlis v. Greece, no. 1234/05, § 41, 15 January 2009). Nonetheless, the domestic courts pointed in this respect to the applicant’s prior conduct, emphasising the fact that he had decided to enter the public arena by publishing an advertisement aimed at finding a surrogate mother. In their view, he should thus have expected a greater amount of attention from the public, all the more so because his identity had already been revealed in the television report (see paragraphs 11 and 13 above). 35. In that connection, the Court observes, however, that the applicant had not himself sought any public exposure beyond placing an anonymous advertisement in a newspaper. He could not have suspected that by talking to the person who had contacted him as a potential surrogate mother, he was running a risk of being recorded and having his intentions and identity revealed in the media (see, mutatis mutandis, Bremner v. Turkey, no. 37428/06, § 78, 13 October 2015). Thus, the sole fact that the applicant, as an ordinary person, had made use of a newspaper advertisement, which only revealed his readiness to have recourse to commercial surrogacy while promising confidentiality, cannot, in the Court’s view, serve as an argument for reducing the level of the protection that should have been afforded to him under Article 8. 36. Concerning the subject matter, the Court admits that the article, entitled “Trade in unborn children” (see paragraph 6 above), which mainly focused on the applicant’s plan to find a surrogate mother, his reasons for doing so and his meetings with the pretend candidate, also revealed some details of his private life. However, in so far as the article mentioned the involvement of (unnamed) doctors who were to have helped with the assisted reproduction and the falsification of documents, and the lack of legislation regulating that practice, the Court is ready to accept the domestic courts’ conclusion – which was shared by the Government – that the article was aimed at informing people about the controversial public-interest issue of surrogacy. (ii) The content, form and consequences of the article 37. As far as the content and form of the published article are concerned, the Court reiterates that the newspaper published some information about the applicant’s background, his intentions and the content about his negotiations with the pretend surrogate mother. It conveyed a message of indignation about the fact that although trafficking of unborn children was illegal in Slovakia, the applicant could not be punished for his action; the applicant considered that to be an unacceptable accusatory statement. 38. The domestic courts were of the view that the article did not contain any harsh or vulgar expressions which were intended to defame or create scandal about the applicant, and that the critical value judgments contained therein relied on the information which, although not sufficiently precise, was true in substance. 39. The Court observes that the article portrayed the applicant rather in a negative light and that its general tone was not favourable to him. In the circumstances of the present case, and viewed in the light of the previous television report, it does not consider however that this in itself gave rise to a breach of the applicant’s right to respect for his private life. (iii) Contribution to a debate of general interest 40. The Court reiterates that the definition of what constitutes a subject of general interest will depend on the circumstances of the case. Articles intended solely to satisfy the curiosity of a particular readership regarding the details of a person’s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society (see Couderc and Hachette Filipacchi Associés, cited above, §§ 89 and 100, and Standard Verlags GmbH v. Austria (no. 2 ), no. 21277/05, § 52, 4 June 2009.) Furthermore, in the balancing of interests under Articles 8 and 10 of the Convention, the contribution made by photographs or articles in the press is an essential criterion (see Von Hannover, cited above, § 109, with further references). 41. In the instant case, while the domestic courts and the Government contended that the publication in question concerned surrogacy as a matter of public interest having a moral and ethical dimension, the applicant argued that there had been no pressing social need to illustrate that topic by his own story, disclosing his identity and private aspects of his life, and that publication of his photographs had made no contribution to a debate about surrogacy. 42. Assessing the publication as a whole, in the actual context and situation, the Court notes that the article was published two days after the broadcast of a television report of similar content which, according to the Government, had caused a “public storm” (see paragraph 26 above). The article was thus closely linked in time to those events. Although the journalist had added little about the phenomenon of surrogacy in general, the Court is of the view that the article can be considered as having been written as part of a debate which was likely to be of significant interest to the general public. 43. As regards, however, the potential contribution of publishing photographs of the applicant to a public-interest debate, the Court sees nothing in the article in question or in the materials in the case file to substantiate any general interest reasons for the journalist’s decision to include the pictures of the applicant without taking any particular precautions, such as masking his face (see, in that regard, Peck v. the United Kingdom, no. 44647/98, § 80, ECHR 2003 ‑ I). Given, in particular, the fact that the applicant was not known to the public (apart from the previous television report), there is nothing to suggest that the publication in question had any inherent informative value or had been properly and adequately used (see, mutatis mutandis, Gurgenidze v. Georgia, no. 71678/01, §§ 59 and 60, 17 October 2006, and Bremner, cited above, § 80). Nor was the domestic courts’ conclusion that the publication of the photographs was necessary for the purposes of news reporting within the meaning of Article 12 § 3 of the Civil Code substantiated by any relevant and convincing arguments. 44. In that connection, the Court observes that in the case of Haldimann and Others v. Switzerland (no. 21830/09, § 65, ECHR 2015), which concerned sanctions imposed on journalists for broadcasting a hidden ‑ camera recording of an alleged negotiation between an insurance broker and a journalist, the Court found a violation of the applicants’ right to freedom of expression. In order to reach that finding it had considered decisive the fact that the applicants had pixelated the broker’s face and distorted his voice. 45. Thus, while the Court accepts in the present case that the article addressed a matter of public interest (see also paragraphs 36 in fine and 42 in fine above), it considers that the method used for producing the article, notably the publication of large-size photographs of the applicant, can hardly be said to be capable of contributing to any debate on such a matter (see further below). (iv) Circumstances in which the photographs were taken 46. It is not in dispute between the parties that the applicant did not consent to the publication of the photographs and that they had been obtained covertly by a television reporter using a hidden camera. However, although the applicant argued in the domestic proceedings that the photographs had been obtained illegally, for which Slovak television had been convicted, and that the publisher had not acted in good faith but only with the aim of causing a sensation (see paragraph 12 above), it appears from the materials in the case file that this factor was not duly taken into consideration by the domestic courts. 47. In this context, the Court reiterates that the task of imparting information necessarily includes “duties and responsibilities”, as well as limits which the press must impose on itself spontaneously (see Couderc and Hachette Filipacchi Associés, cited above, § 89, and Dupate, cited above, § 47). 48. In the present case, the courts appear to have attached particular importance to the fact that the applicant’s identity had already been revealed in the television report (see paragraph 11 above). The Court admits that the fact that someone’s picture has already appeared in an earlier publication might be considered in the balancing process (see Axel Springer AG, cited above, § 92) and lead to the conclusion that there was no need to restrict the disclosure of an identity (see Egeland and Hanseid v. Norway, no. 34438/04, § 60, 16 April 2009). However, the fact that information is already in the public domain does not necessarily remove the protection of Article 8 of the Convention, especially if the person concerned neither revealed the information nor consented to its disclosure (see, mutatis mutandis, Egeland and Hanseid, cited above, §§ 62-63, 16 April 2009, and N.Š. v. Croatia, no. 36908/13, § 100, 10 September 2020). Indeed, even with respect to a further dissemination of “public information”, the Court has found that the interest in publication of that information had to be weighed against privacy considerations (see Von Hannover, cited above, §§ 74-75 and 77). This is so because privacy is also about preventing intrusion. Thus, notwithstanding that the information in question was already known to the public, a further dissemination of such “public information” had still to be weighed against the applicant’s right to privacy (see, mutatis mutandis, N.Š., cited above, §§ 100 and 111). 49. It has to be emphasised in the case at hand that the applicant could not have expected to be recorded or reported on in a public manner (see paragraph 35 above) and did not voluntarily cooperate with the media; thus, his reasonable expectations as to privacy are a significant, although not necessarily conclusive, factor (see Shabanov and Tren v. Russia, no. 5433/02, § 46, 14 December 2006, with further references). Furthermore, although it had been established in 2007 by the first-instance court and in 2011 by the appellate court that the material concerning the applicant had been obtained illegally by the television reporter, and broadcast in breach of the law (see paragraph 7), the domestic courts did not take that factor into account. Nor did they assess whether the journalist had acted in good faith and with necessary rigour and taking necessary precautions when disseminating material emanating from another source (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 65-66, ECHR 1999 ‑ III; Mihaiu v. Romania, no. 42512/02, § 67, 4 November 2008; and Ringier Axel Springer, cited above, § 106). In the Court’s view, it was indeed clear from the television report that the reporter had contacted the applicant, pretending to be interested in his advertisement, and that she had made the recordings with a hidden camera without the applicant being aware of it or having consented to it. This should have alerted the journalist and the newspaper publisher to the need to use that material with caution and not to disseminate it without masking or blurring the applicant’s face (see also paragraph 43 above). (c) Conclusion 50. Having regard to the foregoing, the Court considers that while the domestic courts did engage in a balancing exercise between the right to private life and freedom of expression, that exercise was not carried out in conformity with the criteria laid down in the Court’s case-law. The assessment of the applicant’s prior conduct was flawed (see Dupate, cited above, § 74) and the manner in which the photographs had been taken was not taken into account (see, conversely, Bild GmbH & Co. KG and Axel Springer AG (dec.), nos. 62721/13 and 62741/13, § 35, 4 December 2018). Most importantly, none of the domestic courts would appear to have assessed the contribution to the public-interest debate of broadcasting images of the applicant without blurring them (see Bremner, cited above, § 83). 51. In these circumstances, and notwithstanding the margin of appreciation allowed to the domestic courts in this field, the Court concludes that the State has failed to fulfil its positive obligations under Article 8 of the Convention. 52. There has accordingly been a violation of Article 8 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 53. Relying on Article 6 § 1 of the Convention, the applicant complained of insufficient reasoning of the domestic courts’ decisions. 54. Having regard to the grounds on which it has found a violation of Article 8 of the Convention (see paragraphs 50-51 above), the Court considers that, while this complaint is admissible, no separate issue arises under Article 6 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 55. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 56. The applicant claimed 16,596.95 euros (EUR) in respect of non ‑ pecuniary damage, which corresponded to the amount awarded to him by the domestic courts in similar proceedings (see paragraph 7 above). 57. The Government contested the claim as being overstated and requested that, should the Court find any violation of the applicant’s Convention rights, any just satisfaction be awarded in an adequate amount. 58. The Court considers that, in the particular circumstances of the present case, the finding of a violation of Article 8 of the Convention constitutes sufficient just satisfaction for the applicant. Costs and expenses 59. The applicant also claimed EUR 10,572 for the costs and expenses incurred before the domestic courts, including the costs which he had to reimburse to the defendant, and EUR 419 for those incurred before the Court. 60. The Government objected that the applicant had only proved the payment of the court fees amounting to EUR 1,559 and had not substantiated the rest of his claim with any relevant documents. 61. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum claimed for the fees incurred before the domestic courts, and for the costs paid to the defendant, that is to say EUR 6,030. It also considers it reasonable to award the sum claimed for the representation of the applicant before the Court, namely EUR 419. Default interest 62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that, notwithstanding the margin of appreciation allowed to the domestic courts in this field, the Slovakian State had failed to fulfil its positive obligations under that provision. Bearing in mind, in particular, the flawed assessment of the applicant’s prior conduct, the failure to consider the manner in which the photographs had been taken and, most importantly, to assess the contribution to the public-interest debate of broadcasting non-blurred images of the applicant, the Court considered that the domestic courts had not exercised the balancing exercise between the competing rights in line with the Court’s case-law criteria. The Court also noted that the applicant had not been a public or newsworthy figure within the meaning of the Court’s case-law, had not sought any public exposure beyond placing the advertisement, nor could he have suspected that by talking to the person who had contacted him as a potential surrogate mother, he had run a risk of being recorded and having his intentions and identity revealed in the media.