FIFTH SECTION
Application no. 47318/07
Marta JELŠEVAR and others
against Slovenia
lodged on 16 October 2007
STATEMENT OF FACTS
The applicants, Ms Marta Jelševar, Ms Ana Ložar, Ms Marija Piškur and Ms Štefka Mežnar, are Slovenian nationals, who were born in 1930, 1927, 1915 and 1922 respectively and live in Slovenia. They are represented before the Court by Mr Martin Bergant, Mr Peter Volgemut, Mr Zoran Hajtnik and Mr Primož Brišnik, lawyers practising in Mengeš.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 1998, B.M.Z. self-published a short story titled “Ko se tam gori olistajo breze” (When the Birches Up There are Greening), in which she described the life story of a woman from the Slovenian countryside, who emigrated to the United States of America at the beginning of the 20th century, married a fellow Slovenian by the surname of “Brinovc” and subsequently returned home to take over the family farm, trade in fruits and vegetables and raise a family. The character of “Rozina” was depicted as an ambitious and resourceful woman, but also exhibited certain more negative traits. She used sex to get her way with her husband, brewed and sold illegal alcohol during the prohibition in the United States and did not care much about her children. Furthermore, Minka, one of Rozina’s daughters in the story was sent to prison during the Second World War for stealing.
The applicants were made aware of the existence of the book by one of their sisters, who had told B.M.Z. many details from the life of her parents, and by their acquaintances who recognised the story and the characters depicted in the book as the story of the applicants’ family. The setting of the book was the district where the applicants’ family actually lived and the name “Brinovc”, although not the actual surname of the family, was the name under which they were known in their local community.
The applicants also recognised a number of other similarities between the story in the book and their own family story. Namely, the applicants’ parents got married in the United States and had come back to take over the father’s family farm, their father had four brothers who all lived in the United States, their parents traded in fruits and vegetables, selling their merchandise in country fairs and door to door, and the applicants’ mother went back to the United States after the Second World War and their father’s death. There were also other details, such as the applicants’ mother’s pleadings with the Gestapo, during the war, for the life of her daughter, whom the family called Minka, and afterwards another young woman, a political prisoner sentenced to death.
Upon the publication of the book, the applicants received many questions from their neighbours and acquaintances about whether the events in the book actually happened and whether the depiction of their mother was true. The applicants, finding certain events and acts of the fictional characters in the book abominable and belittling, felt inferior in the eyes of their local community.
On an unspecified date the applicants lodged a civil action for termination of the violation of their personality rights, payment of compensation for mental distress and public notice of apology against the book’s author B.M.Z., claiming that the latter painted a negative and defamatory portrayal of their mother and one of the applicants.
On 25 January 2001 the Ljubljana District Court dismissed their claims. The applicants appealed against the judgment before the Ljubljana Higher Court.
On 13 March 2002 the Higher Court set aside the judgment and remitted the case to the first-instance court for a fresh consideration.
In the new set of proceedings, the District Court held two hearings, the first one on 18 December 2003 and the second one on 22 December 2003. At the first hearing, the court heard the first applicant, who specified the similarities and discrepancies between the life of her family and the events and characters described in the book. She also stated that the story of her parents was well known in the local community and that their description in the book belittled them. The court also heard the second and the fourth applicant, who gave similar statements. At the second hearing, the respondent B.M.Z. was heard, who called the court’s attention to the freedom of artistic expression. She further pointed to the fact that the extent of potential damage to an individual’s reputation committed by a work of fiction was significantly lower in comparison to the potential damage caused by mass media. She stated that she drew inspiration for her book from many different stories, including the stories of her own family, and that the character of Rozina represented her own grandmother, mother and herself. She added that it was not her intention to hurt anybody with the book.
The court also heard a number of other witnesses who recognised the story in the book as the story of the applicants’ family. One of the witnesses stated that after reading the book she was left with a feeling that the events described in the book also happened in reality. Two other witnesses recognised parts of the story as “lies about the family”. The daughter of the second applicant stated that upon the publication of the book, the family was made to answer questions about which parts of it were true and which a tale.
On 22 December 2003 the Ljubljana District Court rendered its judgment in which it awarded compensation in the amount of 100,000 Slovenian Tolars (approximately 400 EUR) to the first, second and fourth applicant and 500,000 Slovenian Tolars (approximately 2,000 EUR) to the third applicant. It also ordered B.M.Z. to publicly apologise to the applicants for the false statements and dishonouring the memory of their parents and to remove the book from printing and distribution under penalty of 50,000 Slovenian Tolars (approximately 200 EUR) for each day of continuing sale. It dismissed the remainder of the claims. The court acknowledged that fictional characters could, as a rule, not be assessed through the prism of reality and that there was a risk of self-censorship if the authors of literary works were to be made responsible for every potential insult. However, the court remarked that the freedom of artistic expression, as all rights, was limited by the rights of others, in the case at issue by the personality rights of the applicants. It therefore proceeded to establish whether the characters in the story could, due to their artistic recreation and enhancement, be considered to have lost the traits of actual persons and only continued to exist as a form of artistic expression. The court pointed to the many similarities between the events depicted in the short story and the actual lives of the applicants’ family members as well as to the statements of witnesses who recognised the applicants’ mother in the character of Rozina. Hence, it concluded that the story in the book was not recreated in a fictional, imaginary setting to an extent which would prevent the applicants and other people from their local community from identifying the applicants’ family, and in particular their mother. Furthermore, the court examined whether the characters of Rozina, her husband and her daughter Minka were attributed any negative or insulting traits or actions which could have interfered with the applicants’ personality rights and found that such traits in fact existed (the parents’ brewing of alcohol during the prohibition, Rozina’s ridiculing of the Holy Virgin, her boasting to the sailors, conflicts with the market vendors, use of sex to get her way with her husband, Minka’s imprisonment for theft, etc.). The court assessed that these traits and actions of the book characters were considered as generally unacceptable, but all the more so when attributed to a Christian mother of seven children living in the countryside in the early 20th century. The court also established that these negative descriptions were not true facts. It further noted that the boundaries between the actual persons and events, on the one hand, and the characters and plot of the book, on the other hand, were so obscured that an average reader could not reliably distinguish the true facts from the imaginary plot.
Relying on the views of legal theorists whereby an interference with the personality rights of a deceased person only constitutes an interference with their close relatives’ personality rights in so far as the latters’ own interests are interfered with, the court considered that the insulting portrayal of the applicants’ mother and, indirectly, their father, dishonoured their memory and interfered with the applicants’ own emotional well-being to such an extent that it violated their psychological integrity.
B.M.Z appealed against this judgment before the Ljubljana Higher Court.
On 23 February 2005 the Ljubljana Higher Court rendered its judgment, granting the appeal in part regarding the costs of proceedings and dismissing the remainder of the complaints. The higher court concurred with the approach adopted by the district court, noting that in the case at issue, which concerned a conflict between the freedom of artistic expression and the right to privacy, the courts were required to examine whether the characters in the book represented actual persons, whether these persons were identifiable to the public and whether they were portrayed in an insulting or defamatory manner or their intimate life was revealed. A number of testimonies and other evidence were taken into consideration and carefully assessed and the conclusions of the lower court were well convincing and well-reasoned.
B.M.Z. then lodged a constitutional complaint against this judgment before the Constitutional Court.
On 12 April 2007 the Constitutional Court granted her constitutional complaint and, deciding on the merits of the case, dismissed the claims of the applicants. The court confirmed the conclusions of the lower courts that the fictional characters in the story bore all the essential features of the members of the applicant’s family and were therefore clearly identifiable. The court then proceeded to weigh the interference with the applicants’ personality rights, whereby it used two criteria: the degree of offensiveness of the writing and the applicants’ feeling of being offended. The Constitutional Court assessed that there were no sufficient arguments to support the lower courts’ conclusion that the traits and actions of the book characters were to be considered as unacceptable and shameful, even though the applicants perceived them as such. In the view of the Constitutional Court, the average readers would not understand the depictions in the book as true facts. The court also concluded that the main character Rozina was portrayed as a determined and self-confident woman and that neither the writing itself nor the aim pursued by the author, which was to create a story of fiction, revealed any intention to offend on her part. As regards the applicants’ feeling of being offended, the Constitutional Court took the view that the subjective feelings of the applicants had to be objectified in the sense that it had to be assessed whether such a portrayal was able to cause the same level of distress in an average reader. In this respect, the court added that the law could not protect any oversensitivity of an individual. It concluded that an average reader would not feel the same degree of distress and that, therefore, the lower courts placed too much weight on the applicants’ subjective feeling of distress and thereby violated B.M.Z.’s right to freedom of artistic expression.
COMPLAINT
The applicants complain under Article 8 of the Convention that the domestic courts failed to protect their rights to respect for their private and family life. In particular, they argue that the Constitutional Court subjectively favoured the opposite party’s right to freedom of artistic expression and failed to strike a fair balance between the two rights.
QUESTIONS TO THE PARTIES
1. In so far as the allegedly defamatory portrayal of the applicants’ family in the book “Ko se tam gori olistajo breze” applied to their deceased mother, did it interfere with the applicants’ right for respect of private and family life guaranteed by Article 8 of the Convention?
2. Did the Constitutional Court according to the criteria set out in the Court’s case-law strike a “fair balance” between the applicants’ rights under Article 8 of the Convention and Ms B.M.Z.’s right of freedom of artistic expression, protected by Article 10 of the Convention, in rejecting the applicants’ claim for defamation?
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