The Court of Human Rights has held that the fact that singer was well known to the public and been the subject of well publicised rumours about her sexuality did not justify the broadcast of interviews about her relationships and sexuality. In the case of Rubio Dosamantes v Spain (Judgment of 21 February 2017)(in French only) the Third Section held that the dismissal of the applicant’s domestic claims was a breach of her Article 8 rights.
Background
The applicant, Ms Paulina Rubio Dosamantes, is a Mexican singer and actress who is very well known in Spain under the name of Paulina Rubio. She complained that her reputation and private life had been harmed by remarks made in the course of three television programmes.
In April and May 2005 Ms Rubio’s former manager gave interviews on three television programmes concerning various aspects of the singer’s private life. In May 2005 Ms Rubio brought a civil action seeking protection of her right to honour and to privacy, against her former manager and various television presenters and staff members, television production companies and television stations.
In a judgment of 19 February 2007 the Madrid first-instance court dismissed Ms Rubio’s claims. The court found that the comments concerning the drug use of Ms Rubio’s boyfriend, R.B., had related solely to the state of their relationship and had not alleged that Ms Rubio had incited him directly to take drugs. As to the references to Ms Rubio’s sexual orientation, the court considered that they had not impugned her honour, as homosexuality should no longer be considered shameful and Ms Rubio herself had tacitly consented to the debate on the subject. Lastly, the court found that the remarks concerning Ms Rubio’s alleged ill-treatment of R.B. were likewise not damaging to her reputation.
Ms Rubio appealed. In a judgment of 29 October 2007 the Madrid Audiencia Provincial upheld the judgment complained of. In May 2009 an appeal on points of law by the applicant was declared inadmissible by the Supreme Court. A subsequent appeal to the Constitutional Court was also declared inadmissible.
On 8 April 2010 the applicant made an application to the Court of Human Rights, complaining of a violation of her Article 8 rights.
Judgment
The Court began by making the familiar point that the concept of privacy is a broad one “which includes elements relating to a person’s identity, such as his or her name, image and physical and moral integrity” and “an area of interaction between the individual and third parties who, even in a public context, may be privacy-related”. The question was whether a fair balance had been struck between the applicant’s right to respect for her private life and the right of the opposing party to freedom of expression [26]. The Court has to consider the criteria for balancing these rights set out in Von Hannover (No 2) v Germany (2012) 55 EHRR 15 [109] to [113]
The fact that Ms Rubio was a well-known public figure as a singer did not mean that her activities or conduct in her private life should be regarded as necessarily falling within the public interest.
- Contribution to a debate of general interest
The Court noted that the general interest could not be reduced to the expectations of a public interested in details of the private lives of others, or the taste of readers for the sensational or voyeuristic. Although the fact that a person was well known to the public influenced the protection of private life to which they were entitled, the right to privacy was wider when the person was not exercising official functions [34].
The fact that the applicant, a singer by profession, is well known to the Spanish public as an artist did not necessarily mean that her activities or behaviour in the private sphere were in the public interest. The broadcasts in question related to strictly private aspects of the applicant’s life and did not include the essential component of public interest. The guests on the broadcasts addressed and commented exclusively on details of the applicant’s private life. Even assuming that there had been a public interest, in parallel to the commercial interest of the television channels in broadcasting the programmes, the Court found that those interests were trumped by a person’s individual right to the effective protection of her privacy [35].
- Previous conduct of the person concerned
The Court noted that actual or supposed tolerance of an individual with regard to publications relating to her private life does not necessarily deprive her of the right to protection of privacy [36].
In the present case, according to the first-instance court, the question of the applicant’s sexual preferences had no longer been confined to the sphere of her private life well before the broadcasting of the programmes, and the commentators had merely talked about rumours that had been known for a long time in Latin America. According to the judgment of the first-instance court, the remarks had not breached the applicant’s right to respect for her private life, since they had concerned aspects of her life which were already in the public domain and Ms Rubio herself had not previously objected to that disclosure.
The Court dismissed this reasoning. The previous publications concerned comments by third parties, not by the applicant. The fact that Ms Rubio could have benefited from such media attention did not give the media carte blanche to broadcast unlimited comments about her private life.
3. The content, form and impact of the disputed television programmes
The Court reiterated that certain events of private and family life were given particularly careful protection under Article 8 meaning that journalists had to show prudence and precaution when talking about them. Thus the spreading of unverified rumours or the limitless broadcasting of random comments on any possible aspect of a person’s daily life could not be seen as harmless.
The first instance judge had said that a person’s homosexuality should no longer be regarded as “dishonourable” but did not consider whether the fact that third parties expressed themselves openly on these aspects of the applicant’s private life in three television broadcasts to which she had not been invited and for which she had not given her consent, had or had not infringed the applicant’s privacy and was or was not protected by the defendants’ right to freedom of expression.
The national authorities had not carefully weighed those rights and interests in the balance, but had merely taken the view that the comments in question had not impugned Ms Rubio’s honour. They had not examined the criteria to be taken into account in order to make a fair assessment of the balance between the right to respect for freedom of expression and the right to respect for a person’s private life.
Having regard to the margin of appreciation afforded to the authorities when it came to weighing up the various interests, the Court found that they had failed in their positive obligations to ensure the protection of Ms Rubio’s privacy. There had therefore been a violation of Article 8 of the Convention. Whenever information or comments involving the privacy of others are involved, it is incumbent on journalists – or any intervener in television programmes such as those in this case to take into account, as far as possible, the impact of the information and images to be published, prior to their dissemination. In particular, certain events of private and family life are the subject of particularly careful protection under Article 8 of the Convention and must therefore lead journalists to exercise caution and caution in their treatment ( Editions Plon v. France , no . 58148/00 , §§ 47 and 53, ECHR 2004-IV). Moreover, the indiscriminate spreading of unverified rumors and uncontrolled commentary on any subject relating to the privacy of others should not be seen as innocuous.
Comment
This case provides a strong reminder of the very limited protection given by the Court to Article 10 rights when the private lives of celebrities are being discussed. The Court noted that
“if there is a right of the public to be informed of publications or television programs for the sole purpose of satisfying the curiosity of the public in relation to details of a person’s private life by intruding into intimate details then, however well known the person is, these publications cannot contribute to any debate of general interest” [34]
In the absence of a more specific “general interest” justification the balance between Articles 8 and 10 is likely to come down in favour of privacy.
The Court also decisively rejected two other arguments which are commonly deployed in privacy cases. First, the fact that the applicant was well known to the Spanish public and an artist and a singer did not limit or restrict her entitlement to respect for her privacy. Her fame as artist did not justify the publication of information about her private behaviour.
Secondly, the fact that numerous publications had previously discussed the applicant’s sexuality did not mean that others had “carte blanche” to discuss these matters.
Finally, there was a warning to journalists writing about the private life of individuals:
“whenever information or comments involving the privacy of others are involved, it is incumbent on journalists … to take into account, as far as possible, the impact of the information and images to be published, prior to their dissemination. In particular, certain events of private and family life are the subject of particularly careful protection under Article 8 of the Convention and must therefore lead journalists to exercise caution in their treatment … the indiscriminate spreading of unverified rumours and uncontrolled commentary on any subject relating to the privacy of others should not be seen as innocuous” [41].
This case is consistent with the approach of the English courts in recent cases and makes it clear that publications concerning private life require clear and cogent public interest justification.
Hugh Tomlinson QC is a member of Matrix Chambers and an editor of Inforrm
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