Communicated on 22 January 2019
THIRD SECTION
Application no. 79310/13
Nikolay Vasilyevich VINNIK
against Russia
lodged on 28 November 2013
STATEMENT OF FACTS
The applicant, Mr Nikolay Vasilyevich Vinnik, is a Russian national, who was born in 1972 and lives in Moscow. He is represented before the Court by Ms S.I. Kuzevanova, a lawyer practising in Voronezh.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 27 May 2011 the applicant put on his web-site, , an article under the title “Message by men of culture and art to the tandem [Russian President and Prime-Minister]: censorship and clericalism will strengthen the morals of our society”. The article concerned an open letter by cultural figures and artists to the Russian President and Prime-Minister where they suggested to found a public council to monitor the respect of morals in mass media, create a code of ethics for journalists and to increase broadcasting of the events with participation of the Russian Orthodox Church on a State channel. The letter was signed by, inter alia, Mr N.B., a famous Russian actor, filmmaker and public figure.
The web-site allowed the Internet users to get access to the information on every person mentioned in the publication in the section “Main characters” containing brief background information and a photograph of the person in question.
On the same date the applicant published on his web-site in the section “Main characters” a photo of and the following information about Mr N.B.:
“Actor of stage and screen, filmmaker.
Merited Actor of Russia, head of the International Union of Slavic and Orthodox Filmmakers, president of the International Film Forum “Golden Knight” [«Золотой витязь»], artistic director of the film studio “Homeland” [«Отечество»]:
Author of movie-essays, op-ed articles and other publications in a number of magazines.
Member of the Patriarch’s Council on Culture.”
On 10 January 2012 Mr N.B. filed a lawsuit against the applicant stating that the applicant had posted his photograph without his consent on a web‑site named “demagogy” which had insulted him, a merited Russian artist, and asked the court to award him non-pecuniary damage in the amount of 500,000 Russian roubles (RUB) (about 12,263 euros (EUR)).
On 20 February 2013 the Simonovskiy District Court of Moscow (the “District Court”) allowed Mr N.B.’s claim. The court held that the applicant had published Mr N.B.’s photo without his consent. The web-site functioned as a social network and Mr N.B.’s photograph had been available for the public in the Internet for about six months as of the date of the claim. The court further stated that the applicant had failed to prove that he had used Mr N.B.’s photo in public interests. The court disagreed with the applicant’s argument that Mr N.B. had the status of a public person, hence, the information about him, including his photograph, was important and had been used in public interests. The court awarded Mr N.B. RUB 10,000 (about EUR 248) in non-pecuniary damage and ordered to delete Mr N.B.’s photograph from the web-site.
The applicant lodged an appeal against the decision of 20 February 2013. He stated that he had not been bound to ask for Mr N.B.’s consent for publication of his photo and his curriculum vitae because Mr N.B. was a popular artist and public person and there were many web-sites on the Internet which had already posted information about him and his photographs. Moreover, the information and the photograph posted by the applicant did not concern Mr N.B. private life but represented rather a brief description of his achievements.
On 30 May and 25 December 2013 the Moscow City Court upheld the decision of 20 February 2013 on appeal and cassation appeal reproducing the District Court’s reasoning.
B. Relevant domestic law and practice
1. Domestic law
According to Article 152.1 of the Civil Code, publishing and using images of a person (including photographs, videos or art works) are allowed only with that person’s consent. Such consent is not required if:
- such image is used in State or public interests;
- the image has been made when shooting in public places or public events;
- a person has been posing as a model.
If the image of a person has been got or used on the Internet in breach of the above provisions, this person may claim to delete this image, stop disseminating it or prohibit its dissemination.
2. Case-law of domestic courts
In its Ruling no. 16 of 15 June 2010 “On the Application by the Courts of the Law of the Russian Federation “On the Mass Media” the Supreme Court of Russia indicated that the term “public interests” did not refer to any interest of the public but rather covered a limited number of interests such as the need for the society to find and disclose threats to the democratic State or civil society, security or environment. The courts should distinguish between information on facts (even quite disputable) which may encourage the public discussion on issues relating, in particular, to officials and public persons’ work, and information on private life of a person who was not involved in public matters. In the former case, the mass media complied with their public duty with regard to informing the citizens about the issues of public interest, in the latter case, it was not a question of public duty.
According to the domestic courts’ case-law, the effective law does not allow to publish and use images of a person without his or her consent, unless (1) this person is a public figure (politician, State official, person involved in social life etc.), in which case the information about this person is considered to be important for the society; or (2) the information about this person somehow affects public safety and national security (the person has been put on a wanted list or has disappeared etc.) (Judgment of the Volgograd Regional Court no. 33-4699/2012, 31 May 2012).
COMPLAINT
The applicant complains under Article 10 of the Convention about violation of his right to impart information.
QUESTIONS TO THE PARTIES
1. Was there an interference with the applicant’s freedom of expression, in particular his right to impart information, within the meaning of Article 10 § 1 of the Convention?
2. If so, was that interference prescribed by law and did it pursue a legitimate aim?
3. Was the interference “necessary in a democratic society” in terms of Article 10 § 2? In particular:
(a) Did the publication of Mr N.B.’s photograph contribute to a debate of public interest?
(b) Was Mr N.B. a public person?
(c) Where did the applicant get Mr N.B.’s photograph and in what circumstances was this photograph taken? The parties are invited to provide Mr N.B.’s photo which was published on the applicant’s web-site.
(d) Was the sanction imposed on the applicant proportionate to the legitimate aim pursued?
(e) Did the domestic courts carefully perform the balancing exercise when weighing up Mr N.B.’s right to privacy against the applicant’s right to impart information?
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