Last Updated on September 7, 2021 by LawEuro
Information Note on the Court’s case-law 254
August-September 2021
M.P. v. Portugal – 27516/14
Judgment 7.9.2021 [Section IV]
Article 8
Positive obligations
Article 8-1
Respect for correspondence
Respect for private life
Emails exchanged by the applicant on a dating website produced without her consent by her ex-husband in civil proceedings: no violation
Facts – The applicant’s former husband accessed emails that she had exchanged on a dating site and produced them, without her consent, in the context, firstly, of proceedings that he had brought for shared parental responsibility and, secondly, divorce proceedings. The Family Affairs Court did not ultimately take these emails into consideration. The applicant complained solely about the fact that the courts had not punished her husband for disclosing them.
Law – Article 8
(a) Applicability – The present case concerned emails that the applicant had exchanged with male correspondents on a casual dating site. These were personal messages which individuals could legitimately expect not to be published without their consent, and in respect of which disclosure could induce a very strong sense of intrusion into their “private life” and “correspondence”, protected by Article 8. Given that there was no dubiety about the seriousness of the breach of the personal enjoyment of the right to respect for private life in the present case, those messages fell within the scope of application of this Article.
Conclusion: article 8 applicable.
(b) Merits – As the interference with the applicant’s private life had been caused by a private individual rather than by the State, her complaints fell to be examined from the perspective of the State’s positive obligations under Article 8.
With regard to the legal system, accessing the content of letters or telecommunications without the consent of the correspondents and disclosing the content thus obtained were punishable under criminal law. Following the criminal complaint lodged by the applicant for breach of her correspondence, the prosecutor’s office at the relevant court had opened an investigation. Furthermore, the applicant had been authorised, at her request, to participate in the criminal proceedings as an assistente, which had enabled her to play an active role in those proceedings. In particular, she had been able to present her evidence, and then to request that an investigation be opened when the prosecutor’s office decided to discontinue the proceedings. Moreover, she had waived the opportunity to submit a compensation claim when asking that an investigation be opened. She had thus expressed a wish that the criminal proceedings be continued solely in order to obtain recognition of the alleged breach of her rights. In the light of these findings, the Court considered that, in cases such as the applicant’s, the existing legal system in Portugal afforded adequate protection for the right to respect for private life and the secrecy of correspondence.
With regard to access to the applicant’s emails, the court of appeal had held that she had given her husband full access to her messaging account on the dating site, and that these messages thus formed part of the couple’s private life. The Court considered that the national authorities’ reasoning with regard to joint access to the spouses’ correspondence had been open to debate, especially since there were reasons in the present case to believe that the applicant’s consent to her husband’s access had been given in a situation of conflict. However, the conclusion reached by the domestic courts regarding the issue of access to those messages did not appear sufficiently arbitrary for the Court to substitute its own assessment for theirs.
With specific regard to the production of the emails in the proceedings for divorce and shared parental responsibility, the court of appeal had excluded any criminal liability on the husband’s part for breach of secrecy of correspondence, having found that the condition of a lack of consent to disclosure, laid down by the Criminal Code, had not been met. The Court shared the court of appeal’s finding as to the relevance of these messages in the civil proceedings in question, which were to lead to an assessment of the personal situation of the spouses and the family. In such a situation, the interference in private life resulting from the disclosure of such information had to be limited, so far as possible, to what was strictly necessary.
In line with the approach taken by the court of appeal, the Court found that the effects of the disclosure of the contested messages on the applicant’s private life had been limited. Those messages had been disclosed only in the civil proceedings, and public access to files in this kind of proceedings was restricted. In addition, the messages in question had not been examined in practice, as the family affairs court had ultimately not ruled on the merits of the husband’s requests.
In consequence, the Court saw no strong reason to substitute its own view for that of the national courts in this case. Firstly, the national authorities had balanced the competing interests, in compliance with the criteria laid down in its case-law. In addition, given that the applicant had waived the right to any civil claims in the context of the criminal proceedings, the only question which remained to be decided was that of the husband’s criminal liability, a matter on which the Court could not rule.
In the light of these considerations, the State had discharged its positive obligation to protect the applicant’s rights to respect for her private life and the confidentiality of her correspondence.
Conclusion: no violation (unanimously).
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