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SECOND
SECTION
CASE OF BIRIUK v. LITHUANIA
(Application
no. 23373/03)
JUDGMENT
STRASBOURG
25 November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Biriuk v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23373/03) against the Republic
of Lithuania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Lithuanian national, Gitana Biriuk (“the
applicant”), on 11 June 2003.
- The
applicant, who had been granted legal aid, was represented by
Ms L. Meškauskaitė, a lawyer practising in
Vilnius. The Lithuanian Government (“the Government”)
were represented by their Agent, Ms E. Baltutytė.
- The
applicant alleged that the State had failed to fulfil its obligation
to secure respect for her private life as a result of the derisory
sum of non-pecuniary damages awarded to her, even though a serious
violation of the her privacy had been committed by a major newspaper.
In addition, the applicant claimed a violation of her right to an
effective domestic remedy as the national law imposed a low ceiling
on compensation for non-pecuniary damage caused by the unlawful
public dissemination of information by the mass media about a
person's private life.
- On
1 July 2005 the Court decided to give notice to the Government
of the applicant's complaints under Article 8 of the Convention. On
the same date, the Court decided to apply Article 29 § 3 of the
Convention and to examine the merits of the complaints at the same
time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in the village of Kraštų,
Pasvalys district.
- On
31 January 2001 the biggest Lithuanian daily newspaper, Lietuvos
Rytas, published a front page article entitled “Pasvalys
villages paralysed by the fear of death: residents of a remote
Lithuanian area shackled by the AIDS threat” (Pasvalio
kaimus paralyZavo mirties baimė: nuošalios Lietuvos
vietovės gyventojai atsidūrė AIDS grėsmės
gniauZtuose). The following statements of particular concern to
the applicant were made in the article:
“Notoriously promiscuous thirty-year old Gitana
Biriuk is already sick with this fatal disease ...
An HIV-positive person lives in a village in Pajiešmenys
area. This [is] G. Biriuk, an unmarried mother of two children ...
G. Biriuk was infected with HIV by drug users who come
to visit her from BirZai ...
A man who had wandered in from somewhere lived in
Gitana's house for a few years. After some time he went away and left
“a present” [reference to HIV] for the woman...
Why is there a great demand for condoms – in the
Kraštų village there lives an HIV-positive person. It is
an unmarried mother of two children, G. Biriuk... the women in nearby
villages are afraid that their husbands will bring the deadly virus
home...
Gitana was very promiscuous. She was always looking for
men and used to find them easily...
Medics at the Pasvalys hospital confirmed that G. Biriuk
is HIV-positive. The woman was taken to hospital with tuberculosis.
Blood tests revealed that she was HIV-positive ...
P. Januškevičius, former partner of G.
Biriuk... did not hide the fact that he had lived with Gitana for a
whole year and they had had intercourse without condoms...
When [G. Biriuk] was placed in hospital, people said
that she looked scary, that she was wizened and therefore was going
to die. But the woman recovered...
The woman [G. Biriuk] has already been diagnosed with
AIDS - this is the last stage of the infection. The disease can last
from a year up to ten years but finally ends with death.”
- The
applicant instituted proceedings in the Vilnius City Third District
Court, suing the newspaper for non-pecuniary damages in the amount of
50,000 Lithuanian litai (LTL, or about 14,460 euro (EUR)) for a
breach of her right to privacy. She referred, inter alia, to
Article 8 of the Convention.
- On
15 April 2002 the court ruled in favour of the applicant. The court
found that the information about the applicant's private life had
been collected and published without her consent. The data about her
private life did not correspond to any legitimate public interest.
The article had been published on the front page of the newspaper as
the sensation of the day, with the aim of increasing sales. The
Vilnius City Third District Court noted that publication had
humiliated her and caused her significant non-pecuniary damage. The
court concluded that, by printing the article and doing so in a
humiliating manner, the newspaper had deliberately sought the
negative consequences or had intentionally allowed for such
consequences. Taking into account the above considerations, the court
applied Article 54 § 1 of the Law on the Provision of
Information to the Public, multiplied the statutory sum of LTL 10,000
(about EUR 2,896) by three, and awarded the applicant LTL 30,000
(about EUR 8,676) in compensation for non-pecuniary damage.
- The
applicant appealed to the Vilnius Regional Court, requesting the
maximum award under Article 54 § 1 of the said Law, namely LTL
50,000. On 17 June 2002 the appellate court reduced the award to LTL
10,000 (about EUR 2,892). It reasoned that the applicant had not
proved that the newspaper had published the information about her
intentionally and that the first-instance court had had no grounds to
triple the statutory sum.
- On
15 January 2003 the Supreme Court upheld the appellate court's
decision. It stated that an award in excess of LTL 10,000 under
Article 54
§ 1 of the Law on the Provision of Information to
the Public could only be granted if it had been established that the
information had been published intentionally. The court agreed with
the reasoning of the appellate court that, for a breach of privacy,
intent was to be regarded as proven if the facts about someone's
private life were disseminated with the purpose of degrading that
person (siekant jį sumenkinti). The Supreme Court held,
inter alia, as follows:
“It is to be stressed that the problem of the
interaction between persons who are sick with AIDS and the others is
relevant and should be discussed. The relations of the sick with the
persons who live nearby are based on the knowledge about the disease
we have today and on the understanding of the related dangers. The
nature of the disease and the known data about it reasonably raise
concern on the part of the people who live in close proximity, to
many of whom this question becomes pertinent not from curiosity, but
from concern for their personal safety. These are significant
arguments, which demonstrate great concern in society, and which
attest to the relevance of the question. It should be taken into
account that persons who live in proximity [to the applicant] have
expressed concern for their safety, which is endangered by the
[applicant's] behaviour, which does not always meet moral standards.
In such circumstances the publication of data which breaches a
[person's] privacy, even though such publication violates the [legal]
norms which protect privacy, cannot be regarded as an end in itself
or intentional, which would be a basis for the application of much
stricter liability. [Therefore] the amount of LTL 10,000 as
compensation for non-pecuniary damage is considered sufficient”.
- Relying
on the foregoing considerations, the Supreme Court dismissed the
applicant's cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
22 of the Constitution of the Republic of Lithuania provides as
relevant:
“The private life of a human being shall be
inviolable...
The law and the courts shall protect everyone from
arbitrary or unlawful interference in his private and family life, or
from encroachment upon his honour and dignity.“
- Article
30 of the Constitution provides that compensation for material and
non-pecuniary damage suffered by a person shall be established by
law.
- According
to Article 71
of the Civil Code applicable
at the material time, concerning compensation
for non-pecuniary damage:
“Mass media, organisations or persons who publish
false information degrading the honour and dignity of a person, and
also information about a person's private life without the consent of
that person, shall pay compensation for non-pecuniary damage. The
courts will assess the amount of the compensation, between five
hundred and ten thousand litai.
In assessing monetary compensation for the non-pecuniary
damage caused, the courts shall take into consideration the financial
status of the person who has caused the damage, the gravity and
consequences of the violation and other circumstances important to
the case.”
-
Article 6.250 of the Civil Code, concerning non-pecuniary damage and
in force since 1 July 2001, reads as follows:
“1. Non-pecuniary damage shall be deemed to be a
person's suffering, emotional experiences, inconvenience, mental
shock, emotional depression, humiliation, deterioration of
reputation, diminution of opportunities to associate with others, and
so on, evaluated by a court in terms of money.
2. Non-pecuniary damage shall be compensated only in
cases provided for by laws. Non-pecuniary damage shall be compensated
in all cases where it has been incurred due to crime, health
impairment or deprivation of life, as well as in other cases provided
for by laws. The courts, in assessing the amount of
non-pecuniary damage, shall take into consideration the consequences
of the damage sustained, the gravity of the fault of the person by
whom the damage is caused, his financial status, the amount of
pecuniary damage sustained by the aggrieved person, and any other
circumstances of importance for the case, as well as the criteria of
good faith, justice and reasonableness.”
- The
relevant provisions of the Law on the Provision of Information to the
Public at the material time read as follows:
Article 14. Protection of Privacy
“1. In producing and disseminating public
information, it is mandatory to ensure a person's right to have his
personal and family life respected.
2. Information about a person's private life may be
published, with the exception of the instances stipulated in
paragraph three of this Article, only with the consent of that person
and if publication of the information does not cause undue harm to
that individual.
3. Information concerning private life may be published
without the person's consent in those cases when publication of the
information does not cause harm to the person or when the information
assists in uncovering violations of the law or crimes, as well as
when the information is presented in the examination of the case in
an open court process. ...”
Article 54. Compensation for pecuniary and
non-pecuniary damage
“1. A producer and (or) disseminator of public
information who publishes information about an individual's private
life ... without the natural person's consent, also a producer who
publishes false information degrading to the honour and dignity of
the person, shall pay compensation for non-pecuniary damage to that
person in a manner set forth by law. The amount of the compensation
for non-pecuniary damage may not be in excess of LTL 10,000, except
for cases when the court establishes that false information degrading
the honour and dignity of a person has been published intentionally.
In such cases the amount may, by a decision of a court, be increased,
but not more than fivefold. In each case the amount awarded to the
plaintiff may not be in excess of five percent of the annual income
of the publisher and (or) disseminator of public information. ...
4. In determining the amount of monetary compensation
for non-pecuniary damage, the courts shall take into account the
financial circumstances of the person who caused the damage, the
gravity of the offence, its consequences and other significant
circumstances. ...”
- Article
52 of the Law on the Health System, restricting the disclosure of
information about a person's health, at
the material time provided as follows:
“1. Restriction on the disclosure of information
about the state of health of a person is intended to guarantee the
inviolability of his private life and state of health.
2. It shall be forbidden to make public in the mass
media information about the state of health of a person without his
written authorisation...
3. Individual or public health care specialists shall
be restricted ... from violating the confidentiality of the
information about an individual's private life or
personal health ... which they have
acquired while performing professional duties.”
- The
Ruling of the Senate of Judges of the Supreme Court of Lithuania of
15 May 1998 no. 1 “On the application of Articles 7
and 71 of the
Civil Code and the Law on the Provision of Information to the Public
in the case-law of the courts examining civil cases on the protection
of honour and dignity”, in so far as relevant, provided as
follows:
“18. ... Privacy of the person should be protected
when it is established that information about a person's private life
has been disseminated without his or her consent and in the absence
of lawful public interest. Lawful public interest is to be understood
as the right of society to receive information about the private life
of a person ... where it is necessary to protect the rights and
freedoms of others from negative impact. The rights of the person are
protected irrespective of whether the disseminated information
degrades his or her honour and dignity.”
- The
Ruling further stipulated that the producer or disseminator of public
information who publishes information about an individual's private
life without his or her consent must compensate for the non-pecuniary
damage caused. When assessing the monetary compensation for such
damage, the courts should take into consideration the guilt of the
defendant, his or her behaviour after the dissemination of the
information, the negative impact on the plaintiff's professional or
social life and the form and manner in which the information was
disseminated, as well as its content and other relevant
circumstances. The monetary compensation could not exceed the limits
provided by Article 71
of the Civil Code and Article 54 of the Law on the Provision of
Information to the Public.
III. RELEVANT INTERNATIONAL INSTRUMENTS
- On
23 January 1970 the Parliamentary Assembly of the Council of Europe
adopted Resolution 428, containing a Declaration on Mass
Communication Media and Human Rights, the relevant part
of which reads as follows:
C. Measures to protect the individual against
interference with his right to privacy
“1. There is an area in which the exercise of the
right of freedom of information and freedom of expression may
conflict with the right to privacy protected by Article 8 of the
Convention on Human Rights. The exercise of the former right must not
be allowed to destroy the existence of the latter.
2. The right to privacy consists essentially in the
right to live one's own life with a minimum of interference. It
concerns private, family and home life, physical and moral integrity,
honour and reputation, avoidance of being placed in a false light,
non-revelation of irrelevant and embarrassing facts ... protection
from disclosure of information given or received by the individual
confidentially...
7. The right to privacy afforded by Article 8 of the
Convention on Human Rights should not only protect an individual
against interference by public authorities, but also against
interference by private persons or institutions, including the mass
media. National legislations should comprise provisions guaranteeing
this protection.”
- Recommendation
no. R (89) 14 on “The ethical issues of HIV infection in the
health care and social settings”, adopted by the Committee of
Ministers of the Council of Europe on 24 October 1989 reads, in so
far as relevant to the present case, as follows:
B. Confidentiality
“Public health authorities are recommended to:
in relation to reporting of cases:
ensure that the reporting of AIDS cases ... is used for
epidemiological purposes only and therefore carried out in strict
compliance with appropriate confidentiality regulations and in
particular that data is transmitted on a non-identifiable basis to
avoid any possible discriminatory use of sensitive health related
data, to avoid discouraging individuals from seeking voluntary
testing,
in relation to the patient-health care worker
relationship:
strongly support respect for confidentiality, if
necessary by introducing specific policies and by promoting
educational programs for health care workers to clarify
confidentiality issues in relation to HIV infection.”
THE LAW
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the State had failed to secure her right to
respect for private life as a result of the derisory sum of
non-pecuniary damages awarded to her, even though the domestic courts
had found that a serious violation of her privacy had been committed
by the newspaper Lietuvos Rytas. She also argued that the
national legislation did not provide an effective remedy from the
point of view of Article 8 of the Convention as it limited the
maximum amount of non-pecuniary damages for a breach of privacy by
the mass media. The applicant relied on Articles 1, 8 and 13 of the
Convention.
- From
the outset the Court notes that the applicant's complaint cannot be
dealt with under Article 1 of the Convention, which is a framework
provision that cannot be breached on its own (see Streletz,
Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97
and 44801/98, § 112, ECHR 2001 II). Moreover, in the
Court's view, the complaint under Article 13 as to the absence of an
effective domestic remedy is subsidiary to the complaint under
Article 8 of the Convention that the State did not ensure respect for
the applicant's private life. Therefore the Court finds it
appropriate to analyse the applicant's complaints solely under
Article 8 of the Convention, which reads in so far as relevant as
follows:
“1. Everyone has the right to respect
for his private and family 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.”
A. Admissibility
- The
Government argued that the applicant could not claim to be a victim,
within the meaning of Article 34 of the Convention, because the
domestic courts had acknowledged the violation of Article 8 and had
granted her adequate redress. The Government also contended that the
complaint had the nature of an actio popularis by which the
applicant was seeking a review in abstracto of the contested
legislation in the light of the Convention. Finally the Government
claimed that the application was manifestly ill-founded because the
applicant had failed to exhaust domestic remedies for the breach of
her right to privacy.
- The
applicant disagreed with these arguments, claiming that her right to
respect for her private life had not been effectively protected
because Article 54 of the Law on the Provision of Information to the
Public had prevented the courts from awarding her fair compensation
for the
non-pecuniary damage. Therefore she was a victim of a
violation of the Convention. Regarding the Government's contention
about exhaustion of domestic remedies, the applicant submitted that
it was unsubstantiated.
- As regards Article 34 of the Convention, the Court
emphasises that a decision or measure favourable to the applicant is
not in principle sufficient to deprive him or her of victim status
unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for, the breach of the
Convention (see Amuur v. France, judgment
of 25 June 1996,
Reports of Judgments and Decisions 1996 III, § 36).
The Court recognises that the domestic courts determined the
violation of the applicant's right to private and family life.
However the Court finds that the question of the applicant's victim
status as regards the redress for the violation of this right is
inextricably linked to the merits of the complaint. Therefore, it
considers that both questions should be joined and examined together.
- As
to the Government's argument that the present application is an actio
popularis, the Court recalls that neither Article 34 nor any
other provision of the Convention prevent an individual applicant
from raising before the Court a complaint in respect of legislation
or a judicial practice allegedly in breach of the Convention provided
that he or she brings prima facie evidence of being directly
affected by the impugned measure
(see, mutatis mutandis,
Dudgeon v. the United Kingdom, 22 October 1981, §§
40-41, Series A no. 45; Norris v. Ireland, judgment
of 26 October 1988, Series A no. 142, § 30;
Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria,
no. 40825/98, § 90, 31 July 2008). From
the foregoing considerations the Court concludes that the present
case is not an actio popularis as the applicant has contested
the direct application of legislative restrictions to her civil
claim.
- As
to the Government's remark concerning exhaustion of domestic
remedies, the Court notes that the Government have failed to specify
the purported effective remedies at the applicant's disposal but
which she did not pursue. Finally, the Court observes that the
applicant's complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and further notes
that the complaint is not inadmissible on any other grounds. It must
therefore be declared admissible.
Merits
1. The applicant's arguments
-
Under Article 8 of the Convention the applicant complained that the
respondent State had failed to fulfil its positive obligation to
secure respect for her private life. Article 54 § 1 of the Law
on the Provision of Information to the Public was inadequate from the
point of view of Article 8 of the Convention, as it limited the
amount of non-pecuniary damages to LTL 10,000 for an unintentional
breach of privacy. The applicant argued that her right to privacy had
been violated not only by the mere existence of the statutory
provision, but also by the way in which the courts had interpreted
and applied it. Taking into account the financial strength of the
newspaper and the vague prospects of success of any litigation in the
absence of established domestic case-law, the existence of such a low
limit was conducive towards the violation of her rights, as the
newspaper was aware that under no circumstances would it be required
to pay large sums in compensation for breaches of this kind. The
applicant concluded that this statutory limit could not be deemed a
necessary and proportionate means to achieve any of the legitimate
aims enumerated in Article 8 § 2 of the Convention.
2. The Government's arguments
- The
Government observed that the Law on the Provision of Information to
the Public did not require intent on the part of the defendant before
compensation for a violation of privacy could be awarded. Article 54
§ 1 of the Law stipulated that the publication of details about
someone's private life without prior consent could create civil
liability entailing an order to pay compensation of up to LTL 10,000.
The intent of the defendant was important only if the publicised
information degraded the honour and dignity of the person concerned,
and was false. In such cases, a court could award compensation for
non-pecuniary damage of up to LTL 50,000.
- The
Government noted that Article 8 does not necessarily require the
State to fulfil its positive obligation to secure respect for the
private life of a person by the provision of unlimited compensation
for non-pecuniary damage. The State enjoys a wide margin of
appreciation in determining the measures required for the better
implementation of that obligation, as long as the limits on such
compensation reasonably correspond to the social importance of the
protected values and certain financial standards based on the
economic situation of the country. In the Government's view, when
seeking a fair balance between the general interest of the country
and the interests of the individual, setting a maximum amount of
compensation for non-pecuniary damage within a certain period of a
State's life should be acceptable.
- The
Government also noted that the new Civil Code which came into force
on 1 July 2001 removed the impugned limitation on non-pecuniary
damage. Nevertheless, the domestic jurisprudence indicates that
current awards rarely exceed the previous maximum of LTL 10,000.
-
According to the Government, in the present case the courts have
recognised that there was no public interest in the publication of
information about the applicant's private life, thereby acknowledging
the unlawfulness of the newspaper's actions. Having regard to the
examination of all the criteria applicable in similar cases as well
as all the relevant circumstances, the courts, and the Supreme Court
in particular, had granted the applicant a fair sum in compensation.
3. The Court's assessment
(a) Applicable principles
- The
Court has previously held that the notion of “private life”
within the meaning of Article 8 of the Convention is a broad concept
which includes, inter alia, the right to establish and develop
relationships with other human beings (see Niemietz v.
Germany, judgment of 16 December 1992, Series A
no. 251 B, p. 33, § 29). It encompasses elements such
as sexual life (see, for example, Dudgeon v. the United
Kingdom, cited above, § 41) and, undoubtedly, personal
information relating to a patient (see I. v. Finland, no.
20511/03, § 35, 17 July 2008).
- The
Court recalls that, although the object of Article 8 is essentially
that of protecting the individual against arbitrary interference by
public authorities, it does not merely compel the State to abstain
from such interference. In addition to this primarily negative
undertaking, there may be positive obligations inherent in the
effective respect for private or family life. These obligations may
involve the adoption of measures designed to secure the right even in
the sphere of the relations between individuals (see Evans v. the
United Kingdom [GC], no. 6339/05, § 75, ECHR 2007 ...).
- The
Court has previously held that whether the case is analysed in terms
of a positive duty on the State to take reasonable and appropriate
measures to secure the applicant's rights under paragraph 1 of
Article 8, or in terms of an interference by a public authority to be
justified in accordance with paragraph 2, the applicable principles
are broadly similar. In both contexts regard must be had to the fair
balance that has to be struck between the competing interests of the
individual and the community as a whole
(see Von Hannover v.
Germany, no. 59320/00, § 57, ECHR 2004 VI).
Furthermore, in striking this balance, the aims mentioned in the
second paragraph of Article 8 may be of a certain relevance (see Rees
v. the United Kingdom, judgment of 17 October 1986, Series A
no. 106, § 37).
- The
Court reiterates that, as regards such positive obligations, the
notion of “respect” is not clear-cut. In view of the
diversity of the practices followed and the situations obtaining in
the Contracting States, the notion's requirements will vary
considerably from case to case. Accordingly, this is an area in which
the Contracting Parties enjoy a wide margin of appreciation in
determining the steps to be taken to ensure compliance with the
Convention, account being taken of the needs and resources of the
community and of individuals (see Johnston and Others v. Ireland,
judgment of 18 December 1986, Series A no. 112, § 55).
The Court nonetheless recalls that Article 8, like any other
provision of the Convention or its Protocols, must be interpreted in
such a way as to guarantee not rights that are theoretical or
illusory but rights that are practical and effective
(see
Shevanova v. Latvia, no. 58822/00, § 69, 15
June 2006).
- The
protection of private life has to be balanced, among other things,
against the freedom of expression guaranteed by Article 10 of the
Convention. In that context the Court emphasises the duty of the
press to impart information and ideas on matters of public interest
(see, among many authorities, Observer and Guardian v. the United
Kingdom, judgment of 26 November 1991, Series A no. 216, pp.
29-30, § 59). However, the Court notes that a
fundamental distinction needs to be made between reporting facts –
even if controversial – capable of contributing to a debate in
a democratic society and making tawdry allegations about an
individual's private life (see, mutatis mutandis, Von
Hannover v. Germany, cited above § 63). As to
respect for the individual's private life, the Court reiterates the
fundamental importance of its protection in order to ensure the
development of every human being's personality. That protection
extends beyond the private family circle to include a social
dimension. The Court considers that anyone, even if they are known to
the general public, may legitimately expect the protection of and
respect for their private life (ibid., § 69).
- More
specifically, the Court has previously held that the protection of
personal data, not least medical data, is of fundamental importance
to a person's enjoyment of his or her right to respect for private
and family life as guaranteed by Article 8 of the Convention.
Respecting the confidentiality of health data is a vital principle in
the legal systems of all the Contracting Parties to the
Convention. The above considerations are especially valid as
regards the protection of the confidentiality of a person's HIV
status
(cf. Council of Europe materials, paragraphs 20-21 above).
The disclosure of such data may dramatically affect his or her
private and family life, as well as the individual's social and
employment situation, by exposing that person to opprobrium and the
risk of ostracism (see Z v. Finland, judgment of 25 February
1997, Reports 1997 I, §§ 95-96).
- It
is in the light of the above considerations that the Court has now to
examine whether the State has fulfilled its positive obligation to
secure respect for the applicant's right to respect for private and
family life.
(b) Application of these general
principles to the present case
- The
Court notes at the outset that publication of the article about the
applicant's state of health, doctors having confirmed that she was
HIV-positive, as well as references to her sexual life (paragraph
6 above) were of a purely private nature and therefore fell within
the protection of Article 8 (see, for example, the aforementioned
Dudgeon v. the United Kingdom judgment, § 41).
The Court takes particular note of the fact that the applicant lived
not in a city but in a village, which increased the impact of the
publication on the possibility that her illness would be known by her
neighbours and her immediate family, thereby causing public
humiliation and exclusion from village social life. Moreover, the
applicant was entitled to respect for her privacy regarding her
sexual life, whatever her neighbours' concerns. In this respect the
Court sees no reason to depart from the conclusion of the national
courts, which acknowledged that there had been interference with the
applicant's right to privacy.
- The
Court will next examine whether there existed a public interest
justifying the publication of this kind of information about the
applicant. However, the Court sees no such legitimate interest and
agrees with the finding of the Vilnius City Third District Court,
which found that the main purpose of the publication was to increase
the respondent newspaper's sales. In the Court's view, the
publication of the article in question, the purpose of which was
apparently to satisfy the prurient curiosity of a particular
readership and boost the defendant's commercial interests, cannot be
deemed to contribute to any debate of general interest to society
(see, among many authorities, Prisma Presse v. France
(dec.),
nos. 66910/01 and 71612/01, 1 July 2003).
-
As for the reasoning of the Supreme Court in the present case, the
Court does not accept that the purported concerns of the local
population for their safety were legitimate, either socially or
scientifically, thereby justifying a publication about the
applicant's state of health and her life style. In the Court's view
the opposite holds true: respecting the confidentiality of health
data is crucial not only for the protection of a patient's privacy
but also for the maintenance of that person's confidence in the
medical profession and in the health services in general. Without
such protection, those in need of medical assistance may be deterred
from seeking appropriate treatment, thereby endangering their own
health and, in the case of transmissible diseases, that of the
community (see Z v. Finland, cited above, § 95). In
this respect the Court attaches particular significance to the fact
that, according to the newspaper, the information about the
applicant's illness had been confirmed by the medical staff of
Pasvalys hospital (see paragraph 6 above). However, it is of special
importance that domestic law provides appropriate safeguards to
discourage any such disclosures and the further publication of
personal data.
- The
Court takes into account that the national law at the material time
did contain norms protecting the confidentiality of information about
the state of health of a person. It has regard to the existence of
the judicial guidelines to be followed if the right to privacy of a
person has been breached (see paragraphs 12-19 above). The Court also
notes that the domestic courts indeed awarded the applicant
compensation for
non-pecuniary damage. However the principal
issue is whether the award of LTL 10,000 was proportionate to
the damage she sustained and whether the State, in adopting Article
54 § 1 of the Law on the Provision of Information to the Public,
which limited the amount of such compensation payable by the mass
media, fulfilled its positive obligation under Article 8 of the
Convention.
- The
Court agrees with the Government that a State enjoys a certain margin
of appreciation in deciding what “respect” for private
life requires in particular circumstances (cf. Stubbings and
Others v. the United Kingdom, 22 October 1996, §§ 62-63,
Reports 1996 IV; X and Y v. the Netherlands, 26
March 1985, § 24, Series A no. 91). The Court
also acknowledges that certain financial standards based on the
economic situation of the State are to be taken into account when
determining the measures required for the better implementation of
the foregoing obligation. The Court likewise takes note of the fact
that the Member States of the Council of Europe may regulate
questions of compensation for non-pecuniary damage differently, as
well as the fact that the imposition of financial limits is not in
itself incompatible with a State's positive obligation under Article
8 of the Convention. However, such limits must not be such as to
deprive the individual of his or her privacy and thereby empty the
right of its effective content.
- The
Court recognises that the imposition of heavy sanctions on press
transgressions could have a chilling effect on the exercise of the
essential guarantees of journalistic freedom of expression under
Article 10 of the Convention (see, among many authorities, Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, §§
113-114, ECHR 2004 XI). However, in a case of an outrageous
abuse of press freedom, as in the present application, the Court
finds that the severe legislative limitations on judicial discretion
in redressing the damage suffered by the victim and sufficiently
deterring the recurrence of such abuses, failed to provide the
applicant with the protection she could have legitimately expected
under Article 8 of the Convention. This view is confirmed by the fact
that the impugned ceiling on judicial awards of compensation
contained in Article 54 § 1 of the Law on the Provision of
Information to the Public was repealed by the new Civil Code soon
after the events in the present case (see paragraph 32 above).
- In
the light of the foregoing considerations, the Court rejects the
Government's objection as to the applicant's victim status and
concludes that the State failed to secure the applicant's right to
respect for her private life.
There
has therefore been a violation of Article 8 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed LTL 40,000 (approximately EUR 11,585) in
respect of non-pecuniary damage. This represented the original amount
of LTL 50,000 claimed during the domestic proceedings after deduction
of the award of LTL 10,000 actually made by the domestic courts.
- The
Government submitted that this claim was unjustified and excessive.
- The
Court considers that the applicant has suffered non-pecuniary damage
which is not sufficiently compensated by the finding of a violation
of Article 8 of the Convention. Making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court
awards the applicant the sum of EUR 6,500 under this head.
B. Costs and expenses
- The
applicant also claimed LTL 10,000 (approximately EUR 2,896) for the
costs and expenses incurred before the domestic courts and before the
Court.
- The
Government contested this claim as unsubstantiated and unreasonable.
-
The Court notes that the applicant was granted legal aid under the
Court's legal aid scheme, and that the sum of EUR 715 was paid to the
applicant's lawyer to cover preparation of the case, filing written
pleadings and secretarial expenses.
- 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 have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
makes no further award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Joins to the merits the Government's objection
as to the applicant's victim status and rejects it unanimously;
- Declares unanimously the application admissible;
- Holds by six votes to one that there has been a
violation of Article 8 of the Convention;
- Holds by four votes to three
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,500
(six thousand five hundred euros) in respect of non-pecuniary damage
plus any tax that may be chargeable, this sum being converted into
the national currency of that State at the rate applicable on the
date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claims for just satisfaction.
Done in English, and notified in writing on 25 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinions of Judges
Zagrebelsky, Popović and Tsotsoria are annexed to this judgment.
S.D.
F.T.
DISSENTING OPINION OF JUDGE ZAGREBELSKY
(Translation)
I do
not agree with the majority of the Chamber that there has been a
violation of Article 8 of the Convention in the present case for the
following reasons.
- There
is no doubt that Article 8 of the Convention is applicable in the
case, since the publication concerned caused considerable damage to
the applicant's reputation. The Court's case-law on the matter is
clear. The Court has held that a person's right to protection of his
or her reputation is encompassed by Article 8 as part of the right to
respect for private life (see, recently, Pfeifer v. Austria,
judgment of 15 November 2007). Article 8 may require the
adoption of positive measures designed to secure respect for private
life even in the sphere of the relations of individuals between
themselves (see Von Hannover v. Germany, no. 59320/00, §
57, ECHR 2004-VI, and Stubbings and Others v. the United Kingdom,
judgment of 22 October 1996, Reports of Judgments and
Decisions 1996-IV, p. 1505, §§ 61 and 62).
- In
the context of a press article, freedom of expression enters into
play. Here too the Court has clearly stated on numerous occasions the
principles to be taken into account, which may be summarised as
follows. The press plays an eminent role in a democratic society.
Although it must not overstep certain bounds, regarding in particular
the protection of the reputation and rights of others, its duty is
nevertheless to impart – in a manner consistent with its
obligations and responsibilities – information and ideas on all
matters of public interest. Article 10 protects not only the
substance of the ideas and information expressed, but also the form
in which they are conveyed.
From
Article 8 is derived the right to protection of one's reputation,
even outside the sphere of private life, but the requirements of such
protection must be weighed against the interest in free discussion of
matters of public interest. The Court must check that the domestic
authorities have maintained a fair balance between protection of
freedom of expression and protection of the reputation of those
against whom allegations have been made.
There
are different ways of securing respect for private life, and the
nature of the State's obligation depends on the aspect of private
life concerned. It follows that the choice of measures calculated to
secure compliance with that positive obligation falls within the
Contracting States' margin of appreciation.
The
adjective “necessary”, within the meaning of Article 10 §
2, implies the existence of a “pressing social need”. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but
that margin goes hand in
hand with European supervision. In exercising its supervisory
function the Court's task is not to take the place of the competent
domestic courts but rather to review under Article 10 the decisions
they have taken by virtue of their power of appreciation. The Court
must determine whether the reasons adduced by the national
authorities to justify the interference were “relevant and
sufficient” and whether the measure complained of was
“proportionate to the legitimate aims pursued”. The
right of journalists to impart information about matters of public
interest is protected, provided that they are acting in good faith,
on the basis of exact facts, in order to provide “accurate and
reliable” information in accordance with the ethics of
journalism. The second paragraph of Article 10 emphasises that
exercise of the freedom of expression carries with it duties and
responsibilities, and those duties and responsibilities may be of
some importance where there is a risk of damage to the reputation of
a person referred to by name or impairment of the “rights of
others”.
The
nature and severity of the penalties imposed on those whose comments
give offence are also elements to be taken into consideration in
assessing the proportionality of an interference. Although
Contracting States have the power, and indeed the duty, by virtue of
their positive obligations under Article 8 of the Convention, to
regulate the exercise of freedom of expression in such a way as to
ensure the appropriate protection of the reputation of individuals
by law, they must in so doing avoid taking measures likely to
dissuade the media from playing their role.
The
civil nature of measures taken against journalists or publishers
does not exclude assessment of their “proportionality”,
given the condition that they must not have the effect of dissuading
the press from taking part in the discussion of matters of public
interest. In that connection, “perceptions as to what would be
an appropriate response by society to speech which does not or is
not claimed to enjoy the protection of Article 10 of the Convention
may differ greatly from one Contracting State to another. The
competent national authorities are better placed than the European
Court to assess the matter and should therefore enjoy a wide margin
of appreciation in this respect” (see Tolstoy Miloslavsky
v. the United Kingdom, judgment of 13 July 1995, §
48).
Excessively
large sums in damages and the lack of appropriate and effective
safeguards against disproportionate awards may lead the Court to
find a violation of Article 10 (see Tolstoy Miloslavsky v. the
United Kingdom, cited above, §§ 50 and 51, and Steel
and Morris v. the United Kingdom, judgment of 15 February 2005,
§ 96).
- It
was accepted by the domestic courts that there had been abuse of the
freedom of expression and damage to the applicant's reputation in
the present case. It is not for the Court to take those courts'
place in determining whether or not the wrong done was intentional
within the meaning of domestic law. What is important is the finding
that the first condition for protection of the applicant's right to
defend his reputation was met by the domestic courts. Those courts
also upheld the applicant's right to damages equivalent to 2,896
euros, which was the maximum sum they could have awarded under the
legislation in force at the time, which indeed fixed a ceiling with
the evident intention of preventing exorbitant awards in respect of
non-pecuniary damage.
To
my mind, the mere fact that there was a ceiling should not cause any
problem; on the contrary, I would say, the aim was to protect
freedom of expression from possible interference stemming from
judicial decisions relating to a question – non-pecuniary
damage – which by its nature leaves wide latitude to judges.
Naturally, the ceiling must be reasonable, but from that point of
view what is decisive is the maximum figure concerned, and above all
the result of the ceiling's application.
- On
the one hand, the exclusion of disproportionate awards of damages is
prompted by the need to avoid interfering with freedom of
expression. On the other hand, an order to pay an insignificant
level of compensation might constitute failure to protect the
victim's right to respect for his or her private life (although it
may sometimes be sufficient simply to recognise the fact that there
has been an unjustified attack on the reputation of the person
concerned). Except in extreme cases at one end of the spectrum or
the other, I find it difficult to accept that the Court should
substitute its assessment for that of the domestic courts and,
through its judgment, intervene in substance to correct their
decisions.
- In
the present case the amount of 2,896 euros – awarded as
compensation for non-pecuniary damage – does not seem so
disproportionate as to enable the Court to find that the applicant's
right was not protected at national level. Unlike the practice in
Article 10 cases, in a case concerning Article 8 consideration of
the economic power of the opponent does not seem relevant, since it
is not a question of punitive damages but of assessing the damage
actually suffered by the applicant.
In a
recent case concerning a violation of Article 8 of the Convention,
in which the domestic courts had given priority to freedom of
expression over protection of the applicant's right to defend his
reputation (and in which he therefore had lost his case and received
nothing in damages) the Court, in applying Article 41 of the
Convention, awarded the applicant 5,000 euros (see Pfeifer v.
Austria, cited above). While I accept that each case is
different, I think that at least that case may serve to provide an
approximate calibration, and lead the Court to the conclusion that
the amount awarded by the Lithuanian courts, pursuant to the
legislation in force, can reasonably be taken to cover the
non-pecuniary damage suffered by the applicant and that, in any
event, the domestic decisions gave the applicant appropriate
protection.
PARTLY dissenting opinion of Judges Popović and
Tsotsoria
We
voted against the amount awarded to the applicant in just
satisfaction, because we consider it to be
excessive in respect of the violation found. We believe that, in the
light of the balancing test between the fundamental rights
protected under Articles 8 and 10 of the European Convention on Human
Rights, rightly referred to in the Judgment, the
applicant should be awarded a lesser sum.
