In the case of Dupate v Latvia ( ECHR 819) the Fifth Section of the European Court of Human Rights held that the publication of covertly taken photographs of the partner of a politician leaving hospital with her newborn baby was a violation of her Article 8 rights. Although the photographs were taken in a public place and were not humiliating there was no proper justification for their inclusion in the magazine article.
The applicant was a lawyer and her partner was the chairperson of a political party which did not have seats in Parliament. He had also taken part in a nationwide advertising campaign in Privātā Dzīve, a nationally available celebrity-focused magazine. Previously, he had headed a State-owned company.
In 2003, Privātā Dzīve published an article about the break-up of the applicant’s partner’s previous marriage, including pictures of the applicant and information about her pregnancy with their first child.
In 2004 the magazine published an article about the birth of the applicant’s second child, including covertly taken photos – one of which was the cover photo – of her leaving hospital with her child carrying baby paraphernalia and going to her car. Her partner J.N. could be seen walking behind her. The photograph had the caption: “One year on [J.N.] has another child“.
In 2006 she brought a case before the domestic courts, claiming infringement of her right to respect for her private life. The Riga City Central District Court found for her. Nevertheless, the magazine republished the article and photos, alongside a statement that they disagreed with the judgment.
The magazine’s domestic appeal was successful. The appeal noted that the applicant’s status as the partner of a public figure who had invited publicity. It also relied on the fact that the photos had been taken in a public place and had not been humiliating.
The application applied to the European Court of Human Rights on 17 March 2011 alleging that the Court judgment was a violation of her Article 8 rights.
The Court noted that case required an examination of the fair balance that has to be struck between the applicants’ right to the protection of their private life under Article 8 of the Convention and the publisher’s, editor’s and journalist’s right to freedom of expression under Article 10. The criteria for such balancing were contained in cases such as von Hannover (No.2) and Axel Springer . The main criteria of assessment are: contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which photos were taken.
The Court reiterated the importance of freedom of expression for democracies, but emphasised the need to correctly balance that freedom with the protection of private life. It noted that wherever information bringing into play the private life of another person is in issue, journalists are required to take into account, in so far as possible, the impact of the information and pictures to be published prior to their dissemination.
(a) Contribution to a debate of general interest
The Court noted that this is “an essential criterion”. Although the publication of news about the private life of public figures is generally for the purposes of entertainment, it contributes to the variety of information available to the public and undoubtedly benefits from the protection of Article 10. However,
“Articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society” 
Although the birth of a child is an event of an intimate nature, it also falls within the public sphere. A news report about a birth cannot be considered, in itself, a disclosure concerning exclusively the details of the private life of others intended merely to satisfy the public’s curiosity.
The Court held that the information concerning the birth of the applicant’s second child was not a matter of general importance. Although J.N. held a post in a political party, at the time of the article that party held no seats in Parliament and J.N. did not exercise any official functions .
In short, although the article did address a matter which had a “public side” its contribution to matters of general importance was “lower compared to the articles that advance political or other public debates.” 
(b) How well known is the person concerned
The domestic courts were of the view that J.N. was a public figure but the applicant was not. But as the partner of a public person she had to take account she could attract media attention
“the birth of the applicant’s and J.N.’s child did make the applicant, herself a private person, susceptible to certain exposure with respect to that shared event … However, in view of the type and extent of the material disclosed and its focus on the applicant, the Court considers that the impugned publication went well beyond any notoriety the applicant may have derived from the public status of her partner or that was merited by the particular shared event” .
It noted that news about the private life of public figures generally benefited from the protection of the Convention, excepting where such news was private or intimate and where there was no public interest in its publication. The Court considered that the applicant’s partner’s private life as such had not affected the public at that time. Nonetheless, the information about the birth of the child came within the public sphere and therefore was of some public importance – albeit less that a political matter might be.
(c) What is the subject of the report
The complaint only concerned the covertly taken photographs. The Court noted that the “duties and responsibilities” linked with the exercise of the freedom of expression are “particularly important in relation to the dissemination to the wide public of photographs revealing personal and intimate information about an individual” 
It was not suggested that the publication of the photographs were necessary to ensure the credibility of the story about the birth of her child or that there would have been a compelling need for the public to have this additional material disclosed. The fact that J.N. had informed the public about the applicant’s pregnancy did not turn her bringing home the new born baby into a public event.
(d) Prior conduct of the person concerned
The domestic courts had taken into account the applicant’s failure to challenge the 2003 article about her first pregnancy and had subsequently given a press interview acknowledging society’s interest in her.
However, the mere fact of having cooperated with the press on previous occasions or an alleged or real previous tolerance of articles touching on private life cannot serve as an argument for depriving the person of the right to privacy . The previous article was less intrusive and no elements of the applicant’s prior conduct limited the protection of her right to privacy.
(e) Content, form and consequences of the article
The article included 9 covertly taken photographs and the applicant’s photograph was on the cover of the magazine. Although the impugned photographs did not show the applicant in a humiliating manner, this was not decisive in view of the private nature of the event they depicted. The magazine was read by a significant portion of the population and the article was subsequently republished.
(f) Method of obtaining the information
The photographs were taken covertly. the fairness of the means used to obtain the information and reproduce it for the public is an essential criterion to be taken into account . The inherently private event of the applicant traversing the public space between the hospital entrance and her car “was not an activity with respect to which the applicant should have anticipated publicity” .
The balancing exercise was not carried out in conformity with the criteria in the Court’s case-law. Sufficient attention was not paid to the limited contribution the article made to issues of public importance and the sensitive nature of the subject matter .
In the circumstances, the Court held that notwithstanding the margin of appreciation accorded to the domestic courts, the state was in breach of its positive obligations under Article 8.
The Court held that Latvia was to pay the applicant €7,000 euros in respect of non-pecuniary damage and €532 in respect of costs and expenses.
This case provides a useful overview of the Court’s case law on balancing Articles 8 and 10 when the media publish private information. Although the court repeats its well known description of “contribution to a debate of general interest” as being an “essential criterion” but also uses the same phrase in relation to the method of obtaining the information. Three points are perhaps worthy of note.
First, the case shows that the fact that someone has a public profile and has previously engaged with the media is not sufficient to justify the publication of intrusive photographs. The general interest of the photographs was limited and the applicant had not lost her privacy rights as a result of an earlier interview. This is in line with the approach of the English courts to these issues.
Second, the Court was unimpressed by the argument that the photographs were taken in a public place as the applicant could not reasonably have anticipated publicity as a result of her activities at the time. The photographs were intrusive despite the fact that they were not humiliating or harassing.
Third, although acknowledging the role of what has been called “editorial discretion” the Court made clear that
“even where the article makes a contribution to the public debate, the disclosure of private information must not exceed the latitude accorded to editorial assessment and has to be justified” 
It considered whether the photographs were “necessary” to ensure the credibility of the story. In other words, it was not enough that the magazine was of the view that these photographs contributed to a story of some public interest. The Court carried out its own assessment and found that they did not.
Hugh Tomlinson QC is a member of the Matrix Chambers media and information practice group and an editor of Inforrm.