The protection of the right to private life under article 8 ECHR encompasses the protection of a person’s reputation (Chauvy and others./France, para 70). It may be engaged by the way in which someone is portrayed in official communications or public documents. Imparting information that a person has committed acriminal offence interferes with the right to private life if the person in question has not been convicted of this crime.
In the case Sanchez Cardenas./. Norway, the former partner of the applicant had accused him of having sexually abused one of their sons. The prosecution initiated an investigation, which was discontinued since there was no evidence. Since the mother denied the applicant the possibility to see his children, the applicant initiated judicial proceedings with the aim to be granted access to his sons. By final decision, the High Court refused this request. It based its decision chiefly on the testimony and statements by two psychological experts, which it had appointed. In its ruling, the High Court also referred to the allegations of sexual abuse and stated: ‘In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [L.]'s strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred. The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.’
The European Court of Human Rights found a violation of article 8 ECHR. It stated that the statement regarding sexual abuse had not been based on evidence and that the domestic court had made no effort to establish whether an abuse had taken place. The Court also pointed to the highly stigmatizing effect of the statement by the Norwegian court and the repercussions it had had on the social life of the applicant.
Information to the effect that a certain person has committed acriminal offence also fall under the scope of article 8 ECHR if they are not publicly available. In the case Mikolajova./.Slovakia, the applicant’s husband had filed a report with the police in which he claimed that the applicant had beaten him. The police investigated the case and established that the applicant had committed a criminal offence. However, the initiation of criminal proceedings against the applicant would have required a request by the applicant’s husband, who did not submit it. The police therefore dropped the case. A note was included in the file to the effect that the investigation had shown that the applicant had committed a criminal offence. The applicant had at no stage been questioned, nor had she even been aware of the investigation. Later on, a health insurance company wrote to the applicant and asked her to reimburse medical costs for her husband’s treatment on the grounds that she had caused his injury.
The Court noted that the decision by the police according to which the applicant had committed a criminal offence was not publicly available. Still, it had been made available to a third party. In addition to that, it contained serious conclusions which had been drawn without even giving the applicant the opportunity to comment. This amounted in the view of the ECtHR to an interference with the right to private life. This interference had not been necessary in a democratic society, since the domestic authorities had given due consideration to the interest of the applicant. Therefore, the Court found a violation of article 8 ECHR.
In the case Cemalettin./.Turkey, the allegation that the applicant had committed a crime had not been shared with third parties. Yet, the Court found a violation of article 8 ECHR. Two sets of criminal proceedings had been initiated against the applicant on suspicion of membership in a terrorist organization. However, the applicant had been acquitted. Several years later, the applicant was on trial for another charge. While this trial was pending, the police submitted a report called ‘information on additional offences’ to the Court. This report stated that the applicant had been a member of a terrorist organization. It did not contain the information that the applicant had been cleared of this suspicion. The European Court of Human Rights found a violation of article 8 ECHR. It held that there had been an interference with the right to private life, since the information in the police report affected the applicants reputation and due to the systematic storage and processing of personal information.
Even if the information provided about someone by state authorities is accurate, it may still interfere with the right to private life. Generally, article 8 cannot be invoked to seek protection against statements or information which are foreseeable consequences of one’s own actions. If this information is, however, highly stigmatizing and likely to have a strong effect on a person’s social life, spreading it may violate the right to private life. In the case Sidabras and Dziautas v Lithuania, the applicants had been banned from employment in public positions since they were considered as former KGB employees. The ban was based on the so called KGB Act, a bill that recognized the KGB as a criminal organization and excluded former employees of the KGB from public service. The Court held that the considerable damage which the qualification as former KGB employee had on the social life of the applicants and their possibility to establish relationships with others had to be considered when assessing whether there had been in interference with their private life.
The European Convention on Human Rights governs the relationship between persons and states. It may also oblige states to ensure that the rights which the Convention guarantees are also respected in the relationship between private persons and other non-state actors (von Hannover v Germany, para 57). Thus, the ECHR may also have an impact on the interaction of third parties. This plays an important role in law suits regarding media coverage that affects a person’s reputation. The domestic legal framework governing the protection of private life has to be in line with the values enshrined in the Convention; domestic courts have to consider the implications of the ECHR when rendering their decision. A fair balance has to be struck between the protection of the right to private life on the one hand and the right to freedom of expression (article 10) on the other hand. Signatory states enjoy a certain margin of appreciation as to the measures they take to ensure an effective protection of the right to private life as well as far as the limits of the right to freedom of expression are concerned (von Hannover v Germany no. 2 para 104;Tammer v Estonia). Still, the Court assesses whether they have exceeded the margin of appreciation and whether an effective protection of the rights enshrined in the Convention is ensured.
The obligation to ensure an effective protection of the right to private life imposes a duty on contracting states to include sufficient sanctions for damaging one’s reputation in their legal frameworks. In the case Armoniene v Lithuania, a Lithuanian newspaper had conveyed information that the husband of the applicant had been HIV positive and that he had fathered two children with a woman he was not married to and who had AIDS. Lithuanian courts had awarded him the highest sum possible pursuant to Lithuanian law for damaging one’s reputation (about 2.900 Euros). The Court found that Lithuanian law because of this ceiling did not provide sufficient protection of the right to private life. However, here, too, a balance has to be struck. While sanctions for damaging a person’s reputation must be grave enough to ensure an effective protection, compensation payments or fines which are too high may have a chilling effect on the freedom of the press and therefore constitute a breach of article 10 ECHR.
As the Court has held in the case Mosley v UK, the right to respect for private life under article 8 ECHR does not entail an obligation to give advance notice to a person who will be the subject of negative reporting. The applicant in this case was a motorsport manager. A newspaper had got hold of footage which showed the applicant wearing a uniform and engaged in a role play with several prostitutes. The newspaper published the footage on its website and featured an article in which it alleged that the applicant had participated in a Nazi role play and accused him of mocking concentration camp victims.
As turned out in ensuing proceedings on the domestic level, the role play in fact had not had any Nazi connotations nor had there been objective reasons for the newspaper to believe so. The applicant had been unable to apply for an injunction against the publication since he had not been aware of it beforehand. There was no legal obligation under British law to give prior notice to individuals affected by reporting of this kind. The applicant claimed that the absence of such an obligation breached the positive obligation to ensure effective protection of the right to private life. He stated that the damage to a person’s reputation was irreparable once information infringing the right to private life was in the public domain.
The Court stated pointed to the wide margin of appreciation which the UK enjoyed regarding the protection of private life and the balance to strike between the rights under article 8 and the freedom of expression. It also stated that a legal requirement to give prior notice to individuals about upcoming revelations about their private life was not in place in any of the Council of Europe member states. The Court also expressed doubts as to whether a pre-notification requirement would be effective in practice and held that there was no positive obligation to install such a requirement.