Earlier this month, the Strasbourg Court handed down two interesting decisions involving freedom of expression. In Alkaya v Turkey (no. 42811/06, 9 October 2012)(in French only), the Court held that the disclosure of the home address of a Turkish actress (pictured) in a newspaper article was a violation of her right to private life under Article 8 ECHR.
In Szima v Hungary (no. 29723/11, 9 October 2012), the Court considered that the demotion and fining of a police officer for posting critical comments about police mismanagement and cronyism on her union’s website was not a violation of her right to freedom of expression under Article 10 ECHR.
Alkaya v Turkey
The applicant was a well-known actress in Turkey. In October 2002, a daily newspaper published an article about the burglary of her home. The article was illustrated by a photograph of the applicant and a description of her home address.
A few months later, Ms Alkaya brought an action for damages against the newspaper. The District Court dismissed the action, holding that the applicant was a public figure due to her celebrity, and that the disclosure of her address could not be considered capable of infringing her personality rights. Ms Alkaya appealed, arguing that she had become fearful of staying at home on her own due to frequent disturbances since the article’s publication. In 2006, the Court of Cassation upheld the first-instance judgment.
Relying on Article 8 ECHR, the applicant complained about the publication of her home address in the press and argued that the State had failed in its obligation to protect her right to privacy. On 9 October 2012 the ECtHR held that there had been a violation of Article 8 of ECHR and awarded 7,500 euros (EUR) to the applicant in non-pecuniary damage.
The Court unanimously held that there had been a violation of Article 8. It noted that Ms Alkaya had not challenged the report of the burglary itself, but rather the disclosure of her home address which, in her view, was of no public interest. Hence, at issue was not an act of the State but the level of protection afforded by the domestic courts to Ms Alkaya’s private life.
The Court pointed out that the concept of private life was a broad term which included the right to live privately. It further noted that a person’s home address constitutes personal data or information which fell within the scope of private life and as such was eligible for protection by Article 8 ECHR. Accordingly, the choice of one’s place of residence was an essentially private matter and the free exercise of that choice formed an integral part of the sphere of personal autonomy protected by Article 8. Even persons who were known to the general public could, in certain circumstances, rely on a “legitimate expectation” of protection and respect of their right to privacy. In this instance, the Court had not been shown any evidence to support the supposed public-interest grounds underlying the newspaper’s decision to disclose Ms Alkaya’s home address.
Lastly, the Court found that the national courts had failed to take into account the repercussions on the applicant’s life of the disclosure of her private address in the press. This failure could not be considered compatible with the State’s positive obligations under Article 8 of the Convention.
This decision of the Strasbourg court confirms perhaps the obvious point that certain aspects of the life of public figures are protected by the right to privacy and that, as a matter of principle, this includes their home address. However, whether or not the disclosure of that personal information is justified under Article 8 ECHR is subject to the public interest test. The presumption here seems clearly in favour of a lack of public interest in that kind of information although there may well be circumstances where that presumption is reversed, for example where that information is an essential part of the story (e.g. an expensive property has been bought by a politician or other public figure with money of dubious origin) or if it has been volunteered by the person concerned on a previous occasion (e.g. celebrity giving an interview about buying a new home). The case is also noteworthy for the fairly significant amount of non-pecuniary damages awarded in compensation for the violation of Article 8 ECHR.
Szima v. Hungary
The applicant was a senior police officer and the chairperson of the local police trade union. Over a two year period, she published extensive comments on the trade union’s website concerning outstanding backpay due to police officers, alleged nepotism and undue political influence in the force, as well as the dubious qualifications of some senior officials.
On 29 April 2010 the Military Bench of the Budapest Regional Court rejected the applicant’s argument that her comments related to the core of a trade union’s activities and found her guilty of instigating insubordination. As a result of her conviction, the applicant was fined and demoted.
On 8 December 2010 the Military Bench of the Budapest Court of Appeal upheld the applicant’s conviction. It held that the publication of the documents by the applicant had gone beyond her freedom of expression, given the public nature of the body to which she belonged.
Relying on Article 10 ECHR, the applicant complained that her conviction for statements she had published on the Internet was a disproportionate interference of her right to freedom of expression. On 9 October 2012 the ECtHR held that there had been no violation of Article 10 read in the light of Article 11 of the Convention.
By a majority of 6 to 1, the Court held that Ms Szima’s freedom of expression under Article 10 of the Convention read in the light of Article 11 had not been violated.
In this case, the applicant had made a series of comments, some of which concerned outstanding remuneration of police officers while others criticized management by senior police officers and alleged disregard for the law at the highest level. While the Court was prepared to accept that the former benefited from the higher protection reserved to trade-union activities, the latter did not and therefore fell to be examined under the general principles of freedom of expression (para. 31). As the applicant was a member of the police force, her freedom of expression had to be balanced against her duties of loyalty to that body and the need to maintain trust in the constitutionality of the police’s actions (para. 32). In this instance, the applicant had failed to demonstrate a sufficient factual basis for her value-judgments, which could have led to acts of insubordination in the police force. The Court concluded that the sanction – demotion and a fine – had not been disproportionate in the circumstances of the case.
This decision of the Strasbourg is a setback for the freedom of expression rights of trade union leaders, members of the police force, as well as the broader public interest in exposing misconduct in public office. It is well-known that freedom of expression can be restricted in the employment context. At the same time, the importance of freedom of expression for trade-union purposes is equally well-established (see Palomo Sanchez v Spain, [GC], no. 28955/06, paras. 21-26 and 56, 12 September 2011)
The Court’s analysis in this case is deeply unsatisfactory for several reasons. First, as pointed out by Judge Tulkens in her dissenting opinion, the Court’s narrow approach to trade-union activities in this case seems both artificial and unduly restrictive. It is unclear how criticisms of the functioning of an institution and its senior management fall outside the realm of employment matters and deserve limited protection under Article 10 ECHR.
Secondly, even if the applicant’s statement fell outside the scope of trade-union activities, it is disappointing that the Court seemingly ignored the countervailing public interest in the applicant’s writings and the importance for a member of the police force openly to criticize the failings of an institution of which she had considerable personal experience.
Thirdly, the way in which the majority applied the distinction between factual statements and value judgments in this case is far from adequate. The Court considered that the applicant had failed to demonstrate the factual basis of her allegations despite the fact that it accepted that the applicant’s statements were ‘predominantly’ value judgments and, most importantly, that the applicant had not been given the opportunity to prove the truth of her allegations – something which in the Court’s view was a matter of ‘serious concern’ (para.32).
Finally, the Court was ultimately satisfied that the sanction was proportionate even though it recognized that several statements made by the applicant benefited from the heightened protection afforded to trade-union leaders or were ‘pure’ value-judgments.
Gabrielle Guillemin is legal officer at ARTICLE 19 and formerly worked as a lawyer at the European Court of Human Rights.