Communicated on 16 March 2015
FOURTH SECTION
Application no. 18068/11
Kristine DUPATE
against Latvia
lodged on 17 March 2011
STATEMENT OF FACTS
1. The applicant, Ms Kristine Dupate, is a Latvian national, who was born in 1973 and lives in Jurmala.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background information
3. The applicant is a lawyer and not a well-known person in Latvia. At the material time she was the partner of Mr. J.N. who from 1995 to 2001 was a director general of a state joint stock company and from 2003 to 2004 held a non-political post with a political party. He also took part in advertising a tabloid called “Privātā Dzīve” (Private Life), issued weekly in 76 000 copies and with a readership of about 474 000. Well before the contested events took place, in 2003 the tabloid published an article about the dissolution of the previous marriage of J.N. The latter had given comments to the tabloid about his new relationship with the applicant and said that soon they would become parents. In autumn 2003 their first child was born and in November 2004 they had their second child.
2. The impugned publication of the applicant’s images
4. On 30 November 2004 “Privātā Dzīve” published an article under the headline “N. does not make it in time for the birth of his son”. The article reported a telephone conversation with J.N. who had told the tabloid journalist about the birth of his son. It was illustrated with nine photos secretly taken at the moment when the applicant and her partner J.N. were leaving the hospital. The applicant was in four of the photos. In one of the photos, which was also published on the cover of the magazine, the applicant was photographed leaving the hospital carrying the baby in a car-seat. In another photo she was seen together with J.N. Other photos showed her fixing the windscreen of her car and leaving the premises of the hospital in a car. The photos were supplemented with comments such as - “...after some twenty minutes J. left the building with the belongings stocked over the two days, ... and also a TV-set”, as well as other comments.
3. Civil proceedings brought by the applicant
(a) Judgment of the Riga Centre District Court of
5. On 10 March 2006 the applicant brought a civil claim with Riga City Centre District Court against the publishing house “Žurnāls Santa”, the chief-editor of the tabloid “Privātā dzīve” and the journalist, arguing that by secretly taking photos of an important and intimate moment of her life – leaving the hospital with a new-born baby - and publishing them in a magazine without her consent and without any public interest, they had infringed her right to respect for her private life, which was guaranteed by Article 96 of the Constitution of the Republic of Latvia (Satversme) and Article 8 of the Convention.
6. On 10 January 2007 the court partly upheld the applicant’s claim and ordered the chief editor to publish an apology and pay the applicant a compensation for moral damage in the amount of about EUR 1000. The court established that the article did not contain references to J.N. as a person carrying out active political functions, nor was the applicant to be regarded as a public figure. The court therefore concluded that the applicant, as a non-public figure, could claim special protection of her private life.
(b) Appellate proceedings
7. Upon the defendant’s appeal on 11 December 2007 the Riga Regional Court overturned the lower court’s judgment and dismissed the applicant’s claim.
8. On 10 September 2008 the Senate examined the applicant’s appeal on points of law and quashed the appellate court’s judgment sending it back to the Riga Regional Court for a fresh examination. The Senate noted that the applicant had relied in her claim on the Von Hannover v. Germany judgment, whereas the appellate court had failed to provide any considerations why this judgment and the interpretation of Article 8 of the Convention had not been relevant in deciding the case.
9. On 11 December 2008 the Riga Regional Court adopted a new judgment in which the applicant’s claim was dismissed. The court noted that it was not disputed that the impugned photos had been taken secretly, without the applicant’s consent. By relying on the Declaration on mass communication media and human rights (Resolution 428 (1970) of the Parliamentary Assembly of the Council of Europe, adopted on 23 January 1970), the court observed that there is no right to absolute privacy and that the assessment of the gravity of interference with a person’s privacy is a matter for the courts. In deciding on the gravity of the interference with the applicant’s private life, the court put forward several criteria, such as the applicant’s role and status in society, including the applicant’s attitude towards publicity in general; the circumstances in which the photos were taken and their form, as well as whether the applicant could have legitimate expectations that her private life would be protected.
10. When applying the above criteria the court referred to the previous public activities of the applicant’s partner J.N. and that in previous publications the applicant had not contested publication of her photos. The court continued by arguing that the photos had been taken in a public place, i.e. on the street, and that in none of the photos had the applicant been portrayed in a way which could undermine her reputation. Furthermore, the photos could not be considered as “pursuing the applicant’s everyday activities and secretly taking photos of her intimacy”. Therefore, according to the appellate court, the factual circumstances were clearly different from those in the Von Hannover case. The appellate court also referred to the applicant’s comment which she had provided in August 2005 in a women’s magazine “Una” where the applicant had said:
“I get annoyed when people associate me as J.’s wife and not as an individual. However, I am well aware that the society has an interest in J.’s partner and not [the applicant]”.
11. When replying to the question whether the applicant could have legitimate expectations about the privacy of her activities, the court argued as follows:
“The applicant, while cohabiting together with a public person, does not lose her rights as an individual, however she must count on the fact that events related to a public person and the information made public by the latter may contain information also about the family members of the public person, as it had happened in the impugned photo story.”
12. In applying the above principle the court established that the applicant should have expected media attention because she was the partner of J.N. who, according to the court, was an active political figure, a former head of a public institution and a businessman. In this relation the court especially referred to the publication by the same tabloid issued in August 2003 containing information about J.N.’s ongoing divorce process and his new relationship with the applicant. The article was accompanied by the applicant’s photo and a subtitle “this year the world will see [the applicant’s] and J.’s baby”. Thus, according to the court, J.N. had provoked discussion about his private-life events which were closely related to the applicant and the upcoming arrival of their baby. Therefore with the contested publication under the “celebrity children” column, the readers of the magazine received information which constituted a logical continuation of a previous publication. The court emphasised that the applicant had not raised any objections to the previous article and the publishing of her photo therein.
(c) Judgment of the Senate of the Supreme Court of 22 September 2010
13. In her appeal on points of law the applicant argued that the national court had wrongly applied the case-law of the Court, namely, that the case-law should be applied in a general manner, and not only in analogous factual circumstances, and that the appellate court had not analysed whether the interference into her private life had a legitimate aim as enshrined in Article 8 of the Convention, and whether it was necessary in a democratic society. The applicant pointed out that even though in her appeal she had invoked several cases, the appellate court had referred only to the Von Hannover judgment.
14. On 22 September 2010 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law. The Senate dismissed the applicant’s allegations that the appellate court had failed to analyse the criteria set out in the Von Hannover judgment. The Senate, by referring to Peck v. the United Kingdom, no. 44647/98, upheld the appellate court’s conclusions that taking photos without consent in a public place does not as such constitute a violation of one’s right to respect for private life. It was also held that other circumstances, such as the content of the photos and their nature – showing only one particular event – supported the appellate court’s conclusions.
15. In relation to the existence of public interest, the Senate gave weight to the fact that by his own comments about his relationship with the applicant, J.N. had provoked public debate about his family values, especially because at the time he started the relationship with the applicant he was still married to another woman.
16. The Senate also considered that by failing to raise objections to the first publication in which the readers were informed about the upcoming arrival of the applicant’s and J.N.’s baby, the journalist could have relied on the assumption that the applicant would have no objection to the publication of subsequent photos after the birth of the child. Consequently, the Senate concluded that:
“The applicant with her previous activities in substance has confirmed that she has no objections to making public those aspects of her private life which relate to her relationship with J.N. and the birth of their baby”.
B. Relevant domestic law
17. Article 96 of the Constitution (Satversme) provides, inter alia, that everyone has the right to inviolability of his or her private life, whereas Article 100 provides that everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information and to express his or her views, and that censorship is prohibited.
COMPLAINTS
The applicant complains that the decisions adopted by the domestic courts infringed her right to respect for her private life as guaranteed by Article 8 of the Convention. In particular, she contends that the domestic courts have not accorded sufficient protection against publication of photos taken without her consent and published by the tabloid press, relying on the reasoning that she was the partner of a public figure.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for her private and family life, contrary to Article 8 of the Convention, in particular in relation to the criteria established by the Court’s jurisprudence in the Von Hannover cases, inter alia, regarding as to whether the impugned publication contributed to a public debate?
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