Photographic technology has raised questions about the privacy of those captured since its emergence in the latter half of the nineteenth century.  The case of Hájovský v. Slovakia  ([2021] ECHR 591) the European Court of Human Rights (ECtHR) returned to the tricky, topical issue of the degree of protection Article 8 affords the filmed or photographed individual.

The applicant, Mr Hájovský, was a ‘regular’ individual who wanted to be a father.  He placed a brief, anonymous advert in a national newspaper offering payment to a woman in return for giving birth to his child (along with an assurance of confidentiality).  An investigative reporter posed as a candidate interested in surrogacy and replied to the advert.  She then secretly filmed their meetings where relevant arrangements were discussed. The story and footage were later broadcast in a television documentary.  A national tabloid newspaper also covered the story using stills from the footage and adopting a critical view of the applicant’s actions.  Both publications, which led to a ‘public storm’, revealed the applicant’s identity and used images of the applicant without his consent.  The applicant brought an action against the media groups for violation of his privacy contrary to Slovakian law .

Despite an initial victory for the applicant in respect of the television documentary, his claim against the newspaper was dismissed.  The case wound its way through the Slovak legal system where the higher Regional and Constitutional Courts also found in favour of the newspaper.  Two reasons for these findings featured prominently.  First, the article contributed to a debate of general interest by highlighting surrogacy for payment, an activity not regulated in Slovakian law (and this brought it within a Slovak news reporting exception).  Second, the applicant’s initial advert had drawn attention to his wish for a child and had thus placed this private matter in public domain.  As a result of this outcome the applicant complained to the ECtHR that his Art 8 right had been violated.

The Judgment

As one would expect, the Court reiterated the approach to balancing privacy and free expression that it set out in Von Hannover (No 2) [2012] ECHR 40660/08 and Axel Springer [2012] ECHR 39954/08, applying the relevant factors to this disputed newspaper story.  In doing so, it held that the Slovakian courts had erred in their approach to balancing the competing rights of Art 8 and 10 and that the applicant’s Art 8 right had thus been violated. The court dealt with the disputed story relatively briefly, but undertook a more sustained examination of the images.  As we shall see, three interesting issues emerge from the court’s treatment of photographic material in the Hajovsky judgment:

[1] The text/image distinction continues

The court once again confirmed that Art 8 encompasses protection of one’s image as a ‘chief attribute of personality’.  It also reiterated the special nature of photographs, explaining that they may be more intrusive than textual information [29], [31].  This text/image distinction runs strongly through both the court’s Art 8 jurisprudence (Von Hannover (No 1) [2004] EMLR 21 and(No 2), Rothe v Austria [2012] ECHR 6490/07) and English misuse of private information case law (Theakston v MGN  [2002] EWHC 137, Douglas v Hello! [2005] EWCA Civ 595).  Against this background, the court concluded that the balancing exercise would lead to different outcomes for the textual and photographic components of the disputed story.  It found that publication of the story was justified due to its contribution to a debate of general interest about surrogacy [42].  However, the balancing exercise in relation to the accompanying photographs should have led the Slovakian courts to an alternative outcome.

The court offered more detailed points of legal significance regarding the relationship between text and photographic image.  It confirmed that photographs can play an important role in fostering debates of general interest [31], but in this case they did not make such a contribution, setting out a number of reasons for this.  First, the applicant was not a public figure, a point afforded further discussion below.  Linked to this, there was nothing to suggest that the photograph had ‘any inherent informative value’ in itself or that it ‘had been properly and adequately used’.  Finally, it deemed the national courts’ finding that the photograph was ‘necessary’ to be unsubstantiated, [43].  These points suggest that even where a story serves the ‘general interest’, accompanying photographs of individuals may not do so unless they form a necessary component of that story by contributing or adding value in some way, and only where they are used ‘properly’.  This of course begs the question of what amounts to ‘proper’ or ‘necessary’ use. Previous decisions have acknowledged the verification function that accompanying photographs might provide to a story (Rothe v Austria, Von Hannover (No 2)).  But ‘proper’ and ‘adequate’ use is more ambiguous; might it obliquely address the applicant’s concerns that the photographs took up the majority of the newspaper spread and had been used in a sensationalist way?

Dividing a story up into textual and photographic components and assessing each in turn is a complex process that brings its own challenges for judges seeking to avoid usurping the editorial role. It is an approach shunned in other jurisdictions; for example in New York law, the newsworthiness of a story is assessed as a whole so that photographs that accompany a newsworthy story – understood in the widest sense to include matters such as lifestyle and fashion – are automatically covered by this exception (Howell v New York Post 81 NY2d 115 (1993), Costlow v Cusimano 34 Ad2d 196 (1970)).  This indivisibility results in greater clarity and certainty albeit at the expense of privacy.

[2] The ‘ordinary’ photographic subject

The court also made some interesting observations as part of its assessment of the second and third Axel Springer factors, namely the applicant’s renown and prior conduct. It disagreed with the Slovak courts’ findings that the applicant was no longer an ‘ordinary person’ by virtue of the fact he had ‘decided to enter the public sphere by publishing his advertisement’.  The public figure doctrine holds that high profile individuals – such as those in public office or who play a role in public life via business, sports or the arts – may enjoy lesser privacy protections (Von Hannover (No 1), Axel Springer).  But the court found that the applicant was not a ‘public or newsworthy figure’ but an ‘ordinary person’ and that his placing of the anonymous advert did not justify a lower level of Art 8 protection [34]-[35].  The Slovakian courts’ assessment of the applicant’s prior conduct was thus flawed.

The court’s reasoning on this point is sound and uncontroversial. The ‘zonal argument’ occasionally advanced by tabloid defendants – that an expose is ‘fair game’ because the claimant placed certain elements of information in the public domain – has been long-discredited in English misuse of private information law (McKennitt v Ash [2006] EWCA Civ 1714, Duchess of Sussex v Associated Newspapers [2021] EWHC 273 [86]).  To hold otherwise potentially provides a ‘free pass’ to the whole of an individual’s innermost life and entirely disregards the nuanced ongoing decisions of revelation and withholding that all social engagement entails.  Additionally, the Slovak reasoning could have wider problematic consequences for ‘ordinary people’ who, by virtue of their own actions (in a narrower or wider sense) might find themselves in the midst of newsworthy events against their wishes.  (As an aside, we lawyers really need to find better terminology for non-public figures).

[3] The Significance of the Face

A final point of interest entails the court’s observations on the issue of masking the photographic subject’s face.  The court noted that the media had not taken any steps to conceal the applicant’s face, e.g. by blurring or pixilation.  This was relevant because the applicant was not a public figure and because of the circumstances in which the filming had occurred: covertly, without consent and when the applicant had a reasonable expectation of privacy [43], [49].  This is not the first time the court has dealt with this issue.  In Peck v United Kingdom [2003] EMLR 287 the media’s attempt to mask the applicant’s face in CCTV footage was inadequate and led to him being identified by friends and acquaintances, amounting to a clear and serious Art 8 violation.  More recently, in Haldimann v Switzerland [2015] 21830/09 undercover journalistic footage was deemed Art 8 compliant largely because the subject’s face had been pixilated and their voice disguised.

The court’s comments in Hajovsky suggest that the publication of the images may have been justified had the applicant’s face been concealed (presumably to prevent him from being individually identified and thereby subjected to unwanted public attention by the audience).  However, this does not fully address the applicant’s wider concerns in this case, namely that he was subject to an intrusive exposé concerning the deeply personal and potentially painful matter of reproduction and family life.  For example, it glosses over the fact that an individual may be identifiable (albeit to a smaller group of people) from other information in an image such as body shape, clothing and background.  Instead, Hajovsky seems to implicitly situate the face as the prime visual repository of one’s personality and identity; in this sense it is a potentially useful authority in an era of proliferating facial recognition technology.  Nevertheless, we might still question whether a modest adjustment such as pixilation of a face would have significantly mitigated the intrusive nature of the overall story in this case.

Rebecca Moosavian is an Associate Professor in Law at Leeds University.