Information Note on the Court’s case-law 255
Judgment 14.10.2021 [Section I]
Respect for private life
Dismissal of action against tabloids, which published unverified tawdry statements on, and pictures of, applicant’s son, a priest convicted of sexual offences, years after his death: violation
Facts – The applicant’s late son, who had been a Roman Catholic priest, had been convicted of offences relating in particular to child sexual abuse. Two years after the son’s death, three tabloid newspapers published articles about his conviction and a possible link between it and his supposed suicide. The applicant unsuccessfully instituted proceedings against the newspapers, seeking post-mortem protection of her son’s and her own personal integrity. She also appealed unsuccessfully up to the Constitutional Court.
Law – Article 8: The case required an examination of the fair balance that had to be struck between the applicant’s right to protection of her private life under Article 8 and the newspaper publishers’ right to freedom of expression as guaranteed by Article 10. The Court examined the following criteria:
(a) How well known the person concerned was and the prior conduct of that person
While alive, the applicant’s son had not been a well-known public figure or a high-ranking Church dignitary. The domestic courts had considered, nevertheless, that, as a parish priest, he could not be treated as an ordinary person but rather as a public figure expected to be more tolerant to criticism.
In the present case it was true that the applicant’s son’s prior conduct had led to him being the subject of criminal proceedings and being convicted. In the light of the Court’s case-law, that could not, however, deprive him entirely of the protection of Article 8. It was moreover to be noted that the applicant’s son had been given a conditional sentence and had complied with its conditions during the probationary period. Thus the Court had to take into account that not only had the articles in question been published several years after the applicant’s son’s criminal convictions but also after those convictions had become spent.
(b) Subject matter, contents and consequences of the articles
Regarding the contents of the articles in question, the material had been presented in a sensational and gossip-like manner, with flashy headlines placed on the front pages, along with – in the third article – photographs of the applicant’s late son. The allegations made by the tabloid press in respect of the latter had been of a serious nature and had been presented as statements of fact which had led to his criminal convictions, rather than value judgments.
In that context, despite finding that the articles had also relied on sources other than the criminal files, the domestic courts had not drawn a clear distinction between statements of fact and value judgments. Many statements in the articles had been presented in a way which made them appear to have been verified or confirmed by a credible source of information, be it a mayor or the bishop’s office. The courts had omitted to take account of the evasive answers of the journalists and of their inability to adduce concrete evidence in support of their allegations.
In such circumstances, the Court found that the domestic courts had failed to carry out an adequate assessment of all the elements relevant to the matter and of the evidence available. Although the journalists had to be afforded some degree of exaggeration or even provocation, the frivolous and unverified statements about the applicant’s son’s private life had to be taken to have gone beyond the limits of responsible journalism.
Lastly, the distorted facts and the expressions used must have been upsetting for the applicant and they had been of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof.
(c) Contribution to a debate of general interest
In the present case, the Court could accept that the subject of sexual abuse by clergymen and the attitude of the Roman Catholic Church thereto, as identified by the domestic courts, had been in the public interest, and that the criminal cases in respect of the applicant’s son had been selected as an example illustrating the problems involved.
However, it had been possible to inform the public adequately about the matter at issue by means which entailed less interference with the applicant’s son’s legitimate interests, namely by reporting only the facts accessible from the publicly available criminal files. In that context, the Court reiterated that there was a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life. The Court was of the view that the publication of additional, particularly intrusive information concerning the intimate sphere of the applicant’s son’s private life and the publication of his picture could not be justified by any considerations of general interest.
Thus, as well as being rather provocative and sensationalist, the articles in question could hardly be considered as having made a contribution to a debate of general interest.
It followed that the domestic courts had failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage.