FOURTH SECTION
DECISION
Application no. 77494/17
Manuel Carlos DE MELO CHAMPALIMAUD
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 13 November 2018 as a Committee composed of:
Egidijus Kūris, President,
Paulo Pinto de Albuquerque,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section egistrar,
Having regard to the above application lodged on 28 October 2017,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Manuel Carlos de Melo Champalimaud, is a Portuguese national, who was born in 1946 and lives in Cascais. He was represented before the Court by Mr R. Sá Fernandes, a lawyer practising in Lisbon.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is a businessman and one of the sons of a very well-known Portuguese banker and industrialist who was, at a certain time, the wealthiest man in Portugal.
4. On 31 March 2014, the national newspaper Correio da Manhã published an article, under the headline “Millionaire accused of assault over 100 euros” (“Milionário acusado de agredir por 100 euros”), which reported that the applicant had had an argument with his housemaid over her salary and had assaulted her. It also reported that the housemaid had gone to the hospital and had filed a complaint against the applicant.
5. On 16 April 2014, the Correio de Manhã published the applicant’s response in which he denied assaulting his housemaid.
6. On an unknown date the housemaid withdrew the complaint against the applicant and the criminal proceedings were dismissed on that ground.
7. On 1 June 2014 the applicant lodged civil proceedings before the Lisbon Court against the Correio de Manhã and three journalists, seeking payment for non-pecuniary damage allegedly caused to him by the article’s publication.
8. By a judgment of 1 February 2016 the Lisbon Court ruled partly in favour of the applicant. Relying inter alia on the evidence in the case file, in particular on the statements made by the housemaid which had been corroborated by the medical records from the hospital she had gone to after the alleged assault, it stated that the newspaper article had had a true factual basis. It noted that the article had been written as a statement of facts and had not formulated any value judgment concerning the applicant. It further pointed out that the applicant’s right to respect for his private life had been legitimately restrained as the newspaper article concerned a subject of general interest, considering that a criminal offence had been alleged and the fact that the applicant was a well-known businessman, from whom honesty and integrity were expected, even in his private life, and specially as an employer. Relying on the judgment of the Court in Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015), the Lisbon Court considered that the newspaper was nevertheless liable for the unlawful user-generated comments on its internet portal and awarded the applicant 10,000 euros (EUR) in respect of non-pecuniary damage arising from those comments.
9. On 17 March 2016 the applicant brought an appeal before the Lisbon Court of Appeal complaining about the establishment of the facts and the conclusion that his right to respect for his private life had been legitimately restrained.
10. By a judgment of 26 April 2017, the Lisbon Court of Appeal upheld the decision of the Lisbon Court but reduced the compensation that had been granted in regard to the user-generated comments on the newspaper’s portal to EUR 500.
B. Relevant domestic law
1. The Constitution
Article 26 § 1
“Everyone shall possess the right to a personal identity, to the development of their personality, to civil capacity, to citizenship, to a good name and reputation, to their own likeness, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination.”
Article 38
“1. Freedom of the press is guaranteed.
2. Freedom of the press implies:
a) Freedom of expression and creativity on the part of journalists and other staff, as well as journalists’ freedom to take part in deciding the editorial policy of their media entity, save when the latter is doctrinal or religious in nature;
b) That journalists have the right, as laid down by law, of access to sources of information and to the protection of professional independence and secrecy, as well as the right to elect editorial boards;
c) The right to found newspapers and any other publications without the need for any prior administrative authorisation, bond or qualification ...”
2. The Civil Code
Article 70
“The law protects individuals against any unlawful interference or threat of harm to their person or character.”
Article 484
“Anyone who states or spreads [knowledge of] a fact that is capable of harming the reputation of another natural or legal person is liable for damages.”
Article 496
“1. When determining the amount of compensation, attention must be paid to non-pecuniary damage that, by its seriousness, deserves the protection of the law...”
“4. The amount of compensation shall be determined fairly by the court...”
3. The Press Act (Law no. 2/99 of 13 January 1999)
Section 3
“Freedom of the press has as its only limits those that derive from the Constitution and the law, in order to safeguard the accuracy and objectivity of information, to guarantee the rights of a person’s reputation, private life, image and word and to defend the public interest and democracy.”
COMPLAINTS
11. The applicant complained under Articles 6 § 1 and 8 of the Convention that the national authorities had failed to protect his reputation, as guaranteed by Article 8 of the Convention, since the domestic courts had failed to strike a fair balance between respect for his right to privacy and the right of freedom of expression.
12. Furthermore, he complained of unfairness in the proceedings before the Court of Appeal, as the court had allegedly not reacted to his arguments regarding the veracity of witnesses’ statements.
THE LAW
13. The applicant submitted that the domestic courts had failed to strike a fair balance between the rights at stake and had not taken into consideration his personal interests or the references made (in the article at issue) to his private and family life. The applicant also complained about the manner in which the domestic courts had established the facts.
14. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case and it does not consider itself bound by the characterisation given by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018). Therefore regarding the facts and the complaints made, the Court considers that the application should be analysed solely under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
15. The Court observes that the right to protection of one’s reputation is covered by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010; and Annen v. Germany, no. 3690/10, § 54, 26 November 2015). For Article 8 to come into play, an attack on a person’s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015). The Court has held, moreover, that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).
16. In cases such as the present one, the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher who has published the offending article, or under Article 8 of the Convention by the person who was the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Accordingly, the margin of appreciation should, in principle, be the same in both situations. Where the balancing exercise between those two rights 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 Axel Springer AG, cited above, § 88).
17. In this respect the Court has used the following criteria: whether the article contributed to a debate of general interest, the definition of what constitutes a subject of general interest depending on the circumstances of the case; the degree of fame of the person concerned, namely his/her role or function and the nature of the activities that are the subject of the report, as well as the conduct of the person concerned prior to publication of the report; the journalist’s method of obtaining the information and its veracity, namely whether the journalist was acting in good faith and on an accurate factual basis, providing “reliable and precise” information in accordance with the ethics of journalism; the content, form and consequences of the publication, involving an assessment of the way in which the report was published, the manner in which the person concerned was represented, as well as the extent to which the report was disseminated; and, lastly, the severity of the sanction imposed, if any (see Axel Springer AG, cited above, §§ 90-95).
18. In view of the above, the instant case requires an examination of the balance that has to be struck between the applicant’s right to protection of his private life under Article 8 of the Convention and the journalist’s right to freedom of expression as guaranteed by Article 10.
19. Firstly, as underlined by the domestic courts, the applicant is a well-known businessman. The Court therefore considers that as a public figure the applicant should have displayed a greater degree of tolerance than an ordinary private individual (see, mutatis mutandis, Milisavljević v. Serbia, no. 50123/06, § 40, 4 April 2017).
20. As regards the content and form of the publication, the Court observes that the article at issue reported facts and did not appear to formulate any value judgment concerning the applicant. As to its veracity, it is satisfied that having regard to the findings of the domestic courts, the article had a sufficient factual basis.
21. Concerning the contribution of the article to a debate of public interest, the Court shares the view of the domestic courts (see paragraph 8 above) that it concerned a subject of general interest, as it referred to the alleged commission of a criminal offence by a well-known businessman, from whom honesty and integrity are expected even in his private life and particularly as an employer.
22. Moreover, the potential negative consequences that the applicant might have suffered by reason of the publication of the article would not have attained the level of gravity required to justify a restriction on the right to freedom of expression guaranteed by Article 10 (see, mutatis mutandis, Karakó v. Hungary, no. 39311/05, § 28, 28 April 2009). In this respect, the Court notes that the compensation that the newspaper had been ordered to pay the applicant in respect of the non-pecuniary damage arose solely from the user-generated comments made on the newspaper’s portal and not the content of the article itself (see paragraph 8 above).
23. Lastly, the Court considers that the judgments of the domestic courts are well-reasoned as to the establishment of the facts and the assessment of witnesses’ statements (see paragraph 8 above).
24. On these grounds, the Court is satisfied that the judgment of the Lisbon Court, upheld by the Court of Appeal, struck a fair balance between the competing interests in the present case, in conformity with the criteria laid down in the Court’s case-law.
25. Consequently, the Court concludes that there are no reasons to substitute its view for that of the domestic courts and that no appearance of a violation of Article 8 of the Convention can be disclosed in the present case. It follows that the application must be rejected as manifestly ill-founded, pursuant to 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 6 December 2018.
Andrea TamiettiEgidijus Kūris
Deputy Section RegistrarPresident
Full & Egal Universal Law Academy