Speech v Reputation [ECHR]

Abuse Allegations

Sanchez Cardenas v. Norway  2007  In June 1997 a dispute arose concerning access to his children following allegations made by the mother to the police which accused the applicant of having sexually abused one of the children. The investigation into those allegations was discontinued in 1998. The applicant complained about the unfairness of a High Court judgment in 2002 to refuse his right of access to his children, alleging in particular that a passage from the judgment amounted to an affirmation of suspicion that he had abused his son. He further claimed that, having been labelled a sexual abuser, he was suffering from anxiety and depression, as corroborated by medical reports.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that that the impugned passage from the High Court judgment had not been sufficiently justified in the circumstances and had been disproportionate to the aims pursued. It was in particular not apparent why the High Court had mentioned that abuse might have occurred, thus confirming a suspicion of its own that the applicant had committed a serious crime, but had decided not to go any further into the matter.

Ageyevy v. Russia  2013 In 2008 the applicants, a married couple, adopted two small children (a boy and a girl). Following an incident in March 2009 in which the boy was badly burnt at home and had to go to hospital for treatment, the authorities took the children into care as they suspected abuse.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention on account of the Russian courts’ failure to protect the mother’s right to reputation in the defamation proceedings against the media company concerned, as it was not convinced that the reasons advanced by the courts regarding the protection of the freedom of expression of the media company had outweighed the mother’s rights to have her reputation and right to the presumption of innocence safeguarded. I

Historical Issues

Putistin v. Ukraine  concerned an article written about the legendary “Death Match” between Ukrainian footballers and members of the German Luftwaffe in 1942 in Kyiv. The applicant alleged that the article discredited his father, who had played in the game, as it suggested that he had been a collaborator.

The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, finding that the Ukrainian courts had struck a fair balance between the applicant’s right to respect for his private life, and the right of the newspaper and journalist to freedom of expression. The Court observed in particular that courts might sometimes be required to protect the reputation of the deceased. However, in this case the applicant was only remotely affected by the publication, because it did not mention his father’s name at all and did not directly make the allegation that his father had been a collaborator.

Sõro v. Estonia 2015  concerned the applicant’s complaint about the fact that information about his employment during the Soviet era as a driver for the Committee for State Security of the USSR (the KGB) had been published in the Estonian State Gazette in 2004.
The Court held that there had been violation of Article 8 (right to respect of private life) of the Convention. It observed in particular that the publication of information about the applicant’s employment as a driver of the KGB had affected his reputation and therefore constituted an interference with his right to respect for his private life.

The Court however found that in the applicant’s case the measure had been disproportionate to the aims sought. In the present case, although the Disclosure Act itself did not impose any restrictions on the applicant’s employment, according to his submissions he had been derided by his colleagues and had been forced to quit his job. Even if such a result was not sought by the Act it nevertheless testified to how serious the interference with the applicant’s right to respect for his private life had been.

Lewit v. Austria 2019  concerned a now 96-year-old Holocaust survivor’s complaint that he had been defamed by a right-wing periodical and that the Austrian courts had failed in their duty to protect his reputation from the false and defamatory statements made in the periodical in question.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention finding that, overall, the lack of a proper examination by the courts of the applicant’s defamation claim had led to a violation of his privacy rights. It noted in particular that the courts had failed to protect the applicant’s rights because they had never dealt with the central issue of his claim: that he had been defamed by an article which had used terms like “mass murderers”, “criminals” and “a plague” to describe people like him liberated from the Mauthausen concentration camp complex in 1945.

Posthumous

M.L. v. Slovakia 2021 concerned the dismissal of an action instituted by the applicant against tabloids, which had published unverified tawdry  statements on, and pictures of, her son, a priest who had been convicted of sexual offences, years after his death.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the Slovakian courts had failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law. The Court noted, in particular, that the distorted facts and the expressions used must have been upsetting for the applicant and they had been of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof.

Professionals / Businessmen

Fürst-Pfeifer v. Austria 2016 The applicant, a psychiatrist, complained that the Austrian courts had failed to protect her reputation against defamatory allegations made in a newspaper article which stated in particular that she suffered from psychological problems such as mood swings and panic attacks but had been working as a court-appointed expert for many years.
The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, finding that the Austrian courts had struck a fair balance between the competing interests in the present case.

Daneş and Others v. Romania 2021 case concerned the dismissal of civil claims brought by the applicants, members of the management board of the National Order of Veterinary Surgeons of Romania (C.M.V.R.), against a journalist and a local weekly newspaper, with a view to securing protection of their reputation following the publication of an article containing criticisms of them. The applicants argued that the national authorities had failed to protect their reputation.

The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, finding that the national courts had struck a fair balance between the applicants’ right to respect for their private life and the journalist’s right to freedom of expression, and had assessed these competing interests in the light of the criteria set out in its case-law. Taking into account the margin of appreciation afforded to the Contracting Parties, it thus saw no serious reason to substitute its own opinion for that of the Romanian courts. Accordingly, it could not be said that by refusing to grant the applicants’ request the domestic courts had failed to fulfil the Romanian State’s positive obligation to protect the applicants’ right to respect for their private life.

Judges

Özpınar v. Turkey 2010 The applicant was removed from office as a judge by a decision of the Supreme Council of the Judiciary following a disciplinary investigation concerning, among other subjects, her alleged close relationships with several men, her appearance and her repeated lateness for work.

The Court observed that the decision to remove the applicant from office was directly related to her conduct, both professionally and in private. Moreover, her reputation had been impugned. There had therefore been an interference with her right to respect for her private life and it could be said to have had a legitimate aim, in relation to the duty of judges to exercise restraint in order to preserve their independence and the authority of their decisions. Finding that in the present case the interference with the applicant’s private life had not been proportionate to the legitimate aim pursued, the Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention.

Oleksandr Volkov v. Ukraine 2013 concerned the dismissal of a Supreme Court Judge. The applicant complained in particular that his dismissal from the post of judge had been an interference with his private and professional life.

The Court observed in particular that the dismissal of the applicant from the post of judge had affected a wide range of his relationships with other persons, including relationships of a professional nature. Likewise, it had an impact on his “inner circle” as the loss of his job must have had tangible consequences for the material well-being of the applicant and his family. Moreover, the reason for the applicant’s dismissal, namely breach of the judicial oath, suggested that his professional reputation was affected. It followed that the applicant’s dismissal had constituted an interference with his right to respect for private life within the meaning of Article 8 (right to respect for private life) of the Convention.

Lawyers

Wegrzynowski and Smolczewski v. Poland  2013  concerned the complaint by two lawyers that a newspaper article damaging to their reputation – which the Polish courts, in previous libel proceedings, had found to be based on insufficient information and in breach of their rights – remained accessible to the public on the newspaper’s website.

The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention as regards the second applicant, finding that the Polish courts had struck a fair balance between the public’s right to access to information on the one hand and the applicant’s right to have his reputation protected on the other.

Jankauskas v. Lithuania (no. 2) and Lekavičienė v. Lithuania 2017  concerned the refusal by the Lithuanian Bar Association to include the two applicants in its list of advocates. The applicant in the first case was struck off the list of trainee advocates, after it emerged that he had failed to declare a previous conviction in his application to be included in the list.

In both cases the Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention. The Court examined in particular the exclusion of the applicants from the list of advocates as an interference with their right to respect for private life, as it must have affected their professional reputation and relationships. However, the findings of the domestic authorities – that the applicants had not possessed a sufficiently high moral character – had been consistent with domestic law and had not been unreasonable in the circumstances. The interference with the applicants’ private lives had therefore been justifiable, in order to protect the rights of others by ensuring the good and proper functioning of the justice system.

Police officers

Kyriakides v. Cyprus and Taliadorou and Stylianou v. Cyprus  2008 The applicants were pensioners of the Cyprus police, within which they had the rank of superior officer. The cases concerned the annulment by the Cypriot Supreme Court of compensation for damage caused to their integrity and reputation by allegations of torture. The applicants, who had been dismissed from the police force by a decision which had been widely reported in the press, were subsequently reinstated in their former posts.
In both cases the Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. While it was not the Court’s role to interpret the Constitutional provision under which the applicants had sought compensation for the injury to their integrity and reputation, the Court found that the Cypriot Supreme Court had failed to provide an adequate explanation for the reversal of the award of moral damages and noted that the absence of a comprehensive assessment as regards a matter affecting the applicants’ Article 8 rights was not consonant with an acceptable margin of appreciation. There had therefore been a breach of the State’s procedural obligations in the present case.

Education

Cârstea v. Romania  2014 This case concerned the publication in a local newspaper of an article about the applicant, a university professor, which described in detail an incident in his sex life 19 years before and accusing him of bribery, blackmail, child sex abuse and sexual deviance. The applicant alleged that the domestic courts had failed to protect his reputation following the publication of the article and accompanying pictures. He notably submitted that the courts had failed, when assessing his complaint, to verify the truthfulness of the facts contained in the article.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the Romanian courts had not carefully balanced the journalist’s right to freedom of expression against the applicant’s right to respect for his private life. In particular there could be little doubt that the disputed article and accompanying photographs had seriously prejudiced the applicant’s honour and reputation and had been harmful to his psychological integrity and private life. The Court was further not convinced that the national courts had attached the required importance to the questions whether the article had contributed to a debate of general interest and whether the applicant should have been regarded as a public figure.

Vicent Del Campo v. Spain  2018 concerned a domestic judgement which named the applicant as having harassed a work colleague, although the defendant in the case was actually his local authority employer. The applicant complained in particular that the High Court judgment stating that he had committed harassment, in proceedings in which he was not a party, had amounted to an unjustified interference with his right to honour and reputation.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that, overall, the interference with the applicant’s right to respect for his private life had not been properly justified . The Court noted in particular that there had been no good reason to name the applicant in the judgment, which had led to him being stigmatised in proceedings to which he was not a party. He had only found about the judgment from the local press and had had no chance to request that his name not be disclosed in the judgment handed down by the High Court in question.