FOURTH SECTION
DECISION
Application no. 5444/20
Maurizio COSTANZO
against Germany
The European Court of Human Rights (Fourth Section), sitting on 13 December 2022 as a Committee composed of:
Armen Harutyunyan, President,
Anja Seibert-Fohr,
Ana Maria Guerra Martins, judges,
and Veronika Kotek, Acting Deputy Section Registrar,
Having regard to:
the application (no. 5444/20) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 January 2020 by an Italian national, Mr Maurizio Costanzo (“the applicant”), who was born in 1973 and lives in Erfurt, and was represented by Mr W. Forkel, a lawyer practising in Steinweiler;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the rejection of the applicant’s claim for compensation against a television station for violation of his right to privacy, allegedly in breach of Articles 6 and 8 of the Convention.
2. Mitteldeutscher Rundfunk (hereinafter “MDR”) is a regional public broadcaster operating as an independent public law institution. On 4 November 2015 MDR broadcast a television report about the activities of the mafia organisation ‘Ndrangheta in Germany. The applicant, introduced under the alias “Michelle”, was presented as a businessman with mafia ties. No picture of the applicant was shown, but the report featured footage from the interior of a restaurant in Erfurt which the applicant ran at the time and photographs of the outside of the applicant’s former restaurant in Berlin. According to the report, the restaurants had been used to funnel money for the mafia. The report was also available on MDR’s website.
3. In a first set of proceedings, MDR was ordered to stop broadcasting the television report.
4. On 5 October 2016 the applicant filed a second lawsuit demanding, notably, monetary compensation for the violation of his right to privacy. The Erfurt Regional Court largely dismissed his claims and on 21 February 2018, following an appeal from the applicant, the Thuringia Court of Appeal upheld the judgment. The domestic courts considered that the breach of the applicant’s right to privacy was not sufficiently severe to warrant monetary compensation. While persons who had previously known the applicant had likely realised who “Michelle” was, for the average viewer identifying the applicant would have required considerable effort. Overall, the courts found that the order to stop broadcasting the report had been sufficient to compensate the violation of the applicant’s privacy rights.
5. On 9 July 2019 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons (no. 1 BvR 498/19).
6. The applicant complained to the Court under Article 8 of the Convention that the domestic courts had failed to balance properly the interests at stake. He argued that the report had provided sufficient information by which to identify him. The fact that he had not been readily identifiable for the average viewer did not diminish the violation of his rights. Furthermore, the court order to stop broadcasting the report offered protection for the future but no compensation for the damage done to his reputation. In the same vein, he complained under Article 6 of the Convention that the domestic courts had not properly addressed his arguments regarding this balancing exercise.
THE COURT’S ASSESSMENT
Alleged violation of Article 8 of the Convention7. The general principles for assessing a claim to compensation for non‑pecuniary damage resulting from a violation of the right to privacy have been summarised in Kahn v. Germany (no. 16313/10, §§ 65 and 66, 17 March 2016) and Egill Einarsson v. Iceland (no. 2) (no. 31221/15, §§ 31-37, 17 July 2018, with further references). The Court reiterates, in particular, that the choice of the means to secure compliance with Article 8 of the Convention is a matter that falls within the Contracting States’ margin of appreciation and, accordingly, that not every infringement requires monetary compensation. Where the balancing exercise between the rights under Articles 8 and 10 of the Convention has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Egill Einarsson, cited above, § 35).
8. The Court first notes that it was not contested between the parties of the original proceedings, and it sees no reason to hold otherwise, that as an independent public broadcaster, MDR enjoyed protection under Article 10 of the Convention (compare Österreichischer Rundfunk v. Austria, no. 35841/02, §§ 46-53, 7 December 2006).
9. In their decisions, the domestic courts took into account the defamatory nature of the statements in the report. Given that viewers had been in a position to identify the applicant from the information provided, the courts had ordered MDR to stop broadcasting the report in the first set of proceedings. However, in the second set of proceedings, which are at issue in the present case, the domestic courts stressed that, while the applicant had been made identifiable, this pertained primarily to viewers who had known him beforehand (compare the circumstances in W.D. and Others v. Germany (dec.) [Committee], no. 469/21, § 7, 27 September 2022). Since his name and image had not been used in the report, the courts considered that the violation of the right to privacy resulting from such indirect identification was less severe. The Court sees no reason to disagree with these findings.
10. The Court further notes that the domestic courts’ decision to take into account the order to stop broadcasting the report when assessing the claim for compensation was in line with the Court’s case-law (see Egill Einarsson, cited above, § 39).
11. Lastly, regarding the distribution of the programme, the domestic courts had given weight to the fact that MDR was only a regional broadcaster (see, for example, Axel Springer AG v. Germany [GC], no. 39954/08, § 94, 7 February 2012). While the report had also been available on the internet and thus accessible to a worldwide audience, the courts observed that the station’s website would primarily be used by individuals in MDR’s broadcasting area.
12. In the light of the above, the Court considers that the domestic courts analysed the specific circumstances of the case and, by ordering MDR to stop broadcasting the report but denying the applicant compensation, struck a fair balance between the competing rights. Accordingly, there are no strong reasons to substitute its view for that of the domestic courts.
13. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Alleged violation of Article 6 § 1 of the Convention14. The general principles concerning the right to a reasoned decision can be found in Moreira Ferreira v. Portugal (no. 2) [GC] (no. 19867/12, § 84, 11 July 2017). As set out above, the Court considers that the domestic courts properly addressed and gave specific and explicit replies to the applicant’s principal arguments which were decisive for the outcome of the proceedings.
15. It follows that this complaint must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 January 2023.
Veronika Kotek Armen Harutyunyan
Acting Deputy Registrar President