Information Note on the Court’s case-law No. 111
August-September 2008
Pay v. the United Kingdom - 32792/05
Decision 16.9.2008 [Section IV]
Article 8
Article 8-1
Respect for private life
Dismissal of a probation officer working with sex offenders for engaging in sadomasochistic performances in a nightclub and on the Internet: inadmissible
Since 1983 the applicant had been employed as a probation officer involved in the treatment of sex offenders. In 2000 his employer received an anonymous fax claiming that an organisation, of which the applicant had been president, was connected with the supply and sale of sadomasochistic products and the organisation of bondage, domination and sadomasochism (BDSM) performances. The fax included a photograph of the applicant, wearing a mask, with two semi-naked women. Following an investigation, it was established that the organisation concerned was also registered at the applicant’s address and that its website included links to a number of BDSM sites, including a site advertising various events taking place at a local private members’ club involving male domination. It also contained photographs of the semi-naked applicant performing such acts. The applicant was immediately suspended because his employer had grounds to believe that the above activities might be incompatible with his role as a probation officer. Following disciplinary proceedings, the applicant was dismissed from service. Despite the fact that his activities were not contrary to the criminal law, the fact that the material attesting those activities was in the public domain was incompatible with his position as a probation officer working with sex offenders. The applicant’s subsequent appeals were to no avail.
Inadmissible: The Court firstly examined whether the applicant’s activities with the organisation formed a part of his “private life” within the meaning of Article 8. On the one hand, the content of the applicant’s acts was shown on the Internet and he himself contended that the public performance aspect thereof was a fundamental part of his sexual expression. On the other hand, it was true that his performances took place in a private members’ club likely to be frequented only by like-minded people and that the published photographs were anonymised. In such circumstances, the Court assumed, without finally deciding the matter, that Article 8 was applicable to the applicant’s case. It further regarded the applicant’s dismissal as an interference with his rights protected by that Article. As to the proportionality of the interference, the Court reiterated that an employee owed to his employer a duty of loyalty, reserve and discretion. In view of the sensitive nature of the applicant’s employment, it was important that he maintained the respect of sex offenders placed under his supervision. The national authorities had therefore not exceeded their margin of appreciation by taking a cautious approach as regards the extent to which public knowledge of the applicant’s sexual activities could impair his ability to effectively carry out his duties. As regards the possibility for the applicant’s employer to take measures less severe than dismissal, the domestic courts had observed that the applicant was not willing to alter his connections with the impugned organisation other than to sever links from its site to the sadomasochistic websites. In such circumstances, given that the applicant had refused to curb even those aspects of his private life most likely to enter into the public domain, the measure complained of had not been disproportionate: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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