FIRST SECTION
CASE OF HÁJOVSKÝ v. SLOVAKIA
(Application no. 7796/16)
 
 
JUDGMENT
 
Art 8 • Private life • Positive obligations • Newspaper publication of private information and non-blurred images of applicant taken covertly and under pretences • Domestic courts’ balancing exercise between the right to private life and freedom of expression not in conformity with criteria laid down in the Court’s case-law • Flawed assessment of applicant’s prior conduct in deciding level of protection afforded to him under Art 8 • Lack of due consideration to illegal manner in which material was obtained and to alleged absence of good faith • Failure to assess contribution to public-interest debate of broadcasting applicant’s non-blurred images
 
STRASBOURG
1 July 2021
FINAL
 
01/10/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hájovský v. Slovakia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Péter Paczolay,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Gilberto Felici,
 Erik Wennerström,
 Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 7796/16) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Miroslav Hájovský (“the applicant”), on 4 February 2016;
the decision to give notice of the application to the Slovak Government (“the Government”);
the parties’ observations;
Having deliberated in private on 8 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case mainly concerns an alleged breach of the applicant’s right to private life under Article 8 of the Convention by the publication of, inter alia, photographs of him, and the ensuing domestic court decisions dismissing his related claims. THE FACTS
2. The applicant was born in 1941 and lives in Bratislava. He was represented by Mr M. Kaľavský, a lawyer practising in Bratislava. 3. The Government were represented by their Co-Agent, Ms M. Bálintová, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant wished to become a biological father through surrogacy, a practice that was not regulated by Slovak law. In March 2005, he and his alleged partner published a short advertisement in a nationwide daily newspaper seeking a woman who was willing and able to give birth to ‘their’ child, while offering a financial reward in return. The advertisement did not reveal the applicant’s identity and promised to keep any negotiations confidential. An investigative television reporter, pretending to be a potential surrogate mother, used a hidden camera to secretly record her meetings with the applicant in which arrangements for the surrogate pregnancy were discussed. On 27 June 2005, her report about the applicant’s intention to ‘buy’ a child, which included video recordings of the applicant, was broadcast on Slovak television. According to the applicant, the report contained unfounded assumptions which were intended to cause a sensation, and suggested that he was a member of an organised group selling children abroad. 6. On 29 June 2005, a popular daily newspaper with national coverage published an article entitled “Trade in unborn children”, describing the applicant’s story as depicted by the television report, and displaying, without the applicant’s consent, his pictures taken from that report. With regard to details of the applicant’s private life, the article stated that the applicant had made his sister impersonate his wife and that, having lived for a long time in the United States, the applicant had only recently acquired Slovak citizenship. The article also mentioned the role of doctors who were allegedly ready to help with the assisted reproduction and the falsification of documents. The article ended by stating that although trafficking of unborn children was illegal in Slovakia, the applicant and his fake partner would probably escape justice and would not be punished because there was no legislation which would enable their actions to be prosecuted. The article was also published in the online version of the newspaper, where it was still available in June 2020. 7. The applicant subsequently brought two actions for the protection of his personal integrity on the basis of Articles 11-13 of the Civil Code, one against Slovak television and the other against the publisher of the newspaper. In January 2007, he won the case against Slovak television before the first-instance court and was awarded more than 16,500 euros in damages; that decision was upheld by the appellate court’s judgment of 26 October 2011 (which became final on 3 February 2012). The courts found that Slovak television had violated the applicant’s rights by criminalising him, as well as by broadcasting, in breach of the law, video and audio recordings of him which had been obtained illegally, without enabling him to express his views on the facts presented in the report. 8. The applicant’s action against the newspaper publisher was subsequently dismissed by courts at two levels of jurisdiction, on the grounds that the article aimed to inform readers about questions of public interest, the issue of assisted reproduction being extremely sensitive and somewhat controversial; that the applicant had himself attracted public and media attention by publishing his advertisement, thus excluding the relevant facts from his private sphere; and that the article in question contained only true information which had already been broadcast on public television. The Bratislava Regional Court, acting on appeal, also considered that Article 12 § 3 of the Civil Code allowed the photographs of the applicant to be used for news reporting without his previous consent, and that the applicant’s actions were legally unacceptable and morally reprehensible. 9. The applicant lodged a constitutional complaint in which he argued, inter alia, that the publication of the pictures of him amounted to an abuse by the defendant of its right to freedom of expression. The Constitutional Court quashed the Regional Court’s judgment on 15 January 2014. In the Constitutional Court’s view, the Regional Court had not given an appropriate answer to all of the relevant arguments raised by the applicant and had thereby breached his rights under Article 6 § 1 and Article 8 of the Convention. Namely, it had failed to provide sufficient reasons for its conclusion that the article and the applicant’s pictures qualified as “news reporting by the press” within the meaning of Article 12 § 3 of the Civil Code; to duly assess the requirement of proportionality when analysing whether the pictures identifying the applicant had contributed to a discussion on matters of public interest; and to explain the factual basis supporting what was considered to be a value judgment on the manner in which the applicant had acted, that is a criticism ad personam. 10. The case was thus remitted to the Regional Court and the parties were invited to submit additional comments. 11. By a judgment of 17 July 2014, the Regional Court upheld the dismissal of the applicant’s action by the first-instance court. It considered, firstly, that although the applicant was not a publicly known figure, he had decided to enter the public sphere by publishing his advertisement, and should thus have expected a greater amount of attention from the public, all the more so given that his identity had already been revealed by the television report. Consequently, he could not be treated as an “ordinary citizen” and the level of protection for his private sphere was therefore partially reduced. As to the admissibility of critical value judgments of the applicant’s actions, the court pointed out that Slovak law did not allow surrogacy, and that any contract conflicting with the principle that a child’s mother is the woman who gave birth to that child, would be invalid as being contrary to good morals. Moreover, the commercial aspect of the surrogacy raised serious ethical questions, which was undoubtedly one of the reasons why the applicant’s advertisement had aroused so much interest in the media and among the public; and the issue of surrogacy was a matter of legitimate public interest upon which the press was called to inform the public. In the court’s view, the article in question did not contain any harsh or vulgar expressions, and was not only critical about the manner in which the applicant had tried to obtain a child but also about the actions of other people who were to have been involved in the process of assisted reproduction. There was no doubt that the article and the criticisms contained therein had a factual basis and relied on true and uncontested facts. In view of those considerations, the appellate court concluded that the publication of the article did not amount to an unjustified interference with the applicant’s rights, which were in that case overridden by the defendant’s right to freedom of expression. Concerning the publication of the applicant’s pictures, to which he had not consented, the appellate court referred to the legal exemption provided by Article 12 § 3 of the Civil Code, enabling pictures to be used, without the consent of the person concerned, for the purposes of news reporting. The term “news reporting” covered not only informing about facts of public interest but also assessing those facts in a critical manner. Although the article containing the applicant’s pictures concerned his private life, his private life was touched upon as a secondary issue (to illustrate the applicant’s motives), the core theme – and a matter of public interest ‑ being the manner in which the applicant had tried to obtain a child by offering a financial reward, that is through surrogacy, which was not allowed under Slovak law. The publication of the article with the pictures was also considered topical, given that it had occurred two days after the television broadcast and thus covered the subject at a time when the public were hearing information about the applicant’s actions. The pictures served the purpose of confirming the trustworthiness of the information published, all the more so because the subject of the article was unusual. The fact that it was published in the so-called tabloid press did not as such exclude it from the news reporting exemption, since the decisive factor was the manner in which the topic had been approached; in the present case, neither the content of the article nor the pictures were intended to create scandal about or ridicule the applicant. Consequently, the publication of the applicant’s pictures was covered by Article 12 § 3 of the Civil Code. Lastly, the appellate court observed that the author of the article had assessed the trafficking of unborn children in Slovakia as being illegal, while quoting the statement of a third party that the trafficking of unborn children could not be prosecuted because of the absence of relevant legislation. This amounted to a contradiction since an action which was not regulated by the criminal law could neither be contrary to that law nor subject to punishment; nevertheless, a surrogacy contract would be invalid from the perspective of family law. According to the court, it was necessary to take into account the fact that the article had been written by a journalist and published in a newspaper designed for a wide public, which required the acceptance of even simplified or distorted allegations; in the present case, the above-mentioned contradiction amounted to a lack of precision which did not have any impact on the applicant’s personality rights, given that the substance of the information relied upon in the article was true. 12. The applicant challenged the Regional Court’s judgment by a constitutional complaint, arguing that its reasoning was still not compliant with his rights guaranteed under Article 6 § 1 and Article 8 of the Convention. As to the application of Article 12 § 3 of the Civil Code, he argued that the newspaper article had not been topical since the events covered had dated to more than two months back (when the pictures had also been taken), and contained a subjective assessment; thus, it could not be considered as “news reporting” and his consent to the publication of the pictures should have been sought. Moreover, the appellate court had failed to examine the manner and the extent to which the pictures – which formed three quarters of the article – had been used, which suggested that the main aim had not been to report about surrogacy but to reveal his identity; the use of the pictures was contrary to his legitimate interests. In the applicant’s view, there was no legitimate interest requiring the publication of his non‑pixelated pictures, which were not capable of contributing to a debate on a matter of public interest. The applicant emphasised in this context that the article had been based on a television report which had used illegally obtained material and which had been broadcast in breach of the law, as had been held in the proceedings against Slovak television, and that the publisher had not acted in good faith but only with the aim of causing a sensation. While the publisher could have had a legitimate interest in covering the public-interest issue of surrogacy, it had had the obligation to do so in an objective and sober manner, without focusing on one particular case and without revealing his identity and criminalising him. Furthermore, the article contained untrue and inadmissible critical value judgments, namely that he was considered to have trafficked unborn children even though no child had ever existed in this case. 13. By decision no. II. ÚS 424/2015 of 1 July 2015 (served on 14 September 2015), the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. It considered that the Regional Court, having sufficiently reasoned its judgment and given a clear and comprehensive response to all of the questions raised, had complied with the requirements stemming from the rights to judicial protection and to a fair trial, and from the Constitutional Court’s previous judgment. It further observed that the right to respect for private life was not absolute and that the criteria to be taken into account when balancing that right and the journalist’s freedom of expression were the status of the person whose personality rights had been interfered with; the content and form of the article; the status of the author of the article; and the article’s purpose, aim and motive. In this connection, it was considered essential that the applicant had himself, through his advertisement, drawn attention to his intention to have recourse to surrogacy even though that practice was not in accordance with Slovak law. In so far as the article revealed circumstances of the applicant’s private life, even if it had done so in expressive and critical terms, it had not done so without purpose. The article had contributed to the public debate which had followed the television report, and the publication of the applicant’s pictures was allowed by the news reporting exemption. The author was a journalist, who was obliged to inform the public about matters of public interest, and it had not been proved that the defendant had acted in bad faith or tried to defame the applicant. Thus, according to the Constitutional Court, the Regional Court’s assessment of the proportionality of the interference had not overstepped the constitutionally acceptable limits. 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

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.

Outcome for Article 8: violation