Communicated on 22 January 2019<\/p>\n
THIRD SECTION<\/p>\n
Application no.79310\/13
\nNikolay Vasilyevich VINNIK
\nagainst Russia
\nlodged on 28 November 2013<\/p>\n
STATEMENT OF FACTS<\/p>\n
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.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/p>\n
The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n
On 27 May 2011 the applicant put on his web-site, www.demagogy.ru, an article under the title \u201cMessage by men of culture and art to the tandem [Russian President and Prime-Minister]: censorship and clericalism will strengthen the morals of our society\u201d. 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.<\/p>\n
The web-site allowed the Internet users to get access to the information on every person mentioned in the publication in the section \u201cMain characters\u201d containing brief background information and a photograph of the person in question.<\/p>\n
On the same date the applicant published on his web-site in the section \u201cMain characters\u201d a photo of and the following information about Mr N.B.:<\/p>\n
\u201cActorofstage and screen, filmmaker.<\/p>\n
Merited Actor of Russia, head of the International Union of Slavic and Orthodox Filmmakers, president of the International Film Forum \u201cGolden Knight\u201d [\u00ab\u0417\u043e\u043b\u043e\u0442\u043e\u0439\u0432\u0438\u0442\u044f\u0437\u044c\u00bb], artistic director of the film studio \u201cHomeland\u201d [\u00ab\u041e\u0442\u0435\u0447\u0435\u0441\u0442\u0432\u043e\u00bb]:<\/p>\n
Author of movie-essays, op-ed articles and other publications in a number of magazines.<\/p>\n
Member of the Patriarch\u2019s Council on Culture.\u201d<\/p>\n
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\u2011site named \u201cdemagogy\u201d 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)).<\/p>\n
On 20 February 2013 the Simonovskiy District Court of Moscow (the \u201cDistrict Court\u201d) allowed Mr N.B.\u2019s claim. The court held that the applicant had published Mr N.B.\u2019s photo without his consent. The web-site www.demagogy.ru functioned as a social network and Mr N.B.\u2019s 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.\u2019s photo in public interests. The court disagreed with the applicant\u2019s 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.\u2019s photograph from the web-site.<\/p>\n
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.\u2019s 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.<\/p>\n
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\u2019s reasoning.<\/p>\n
B.\u00a0\u00a0Relevant domestic law and practice<\/p>\n
1.\u00a0\u00a0Domestic law<\/p>\n
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\u2019s consent. Such consent is not required if:<\/p>\n
–\u00a0\u00a0such image is used in State or public interests;<\/p>\n
–\u00a0\u00a0the image has been made when shooting in public places or public events;<\/p>\n
–\u00a0\u00a0a person has been posing as a model.<\/p>\n
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.<\/p>\n
2.\u00a0\u00a0Case-lawofdomesticcourts<\/p>\n
In its Ruling no. 16 of 15 June 2010 \u201cOn the Application by the Courts of the Law of the Russian Federation \u201cOn the Mass Media\u201d the Supreme Court of Russia indicated that the term \u201cpublic interests\u201d 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\u2019 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.<\/p>\n
According to the domestic courts\u2019 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).<\/p>\n
COMPLAINT<\/p>\n
The applicant complains under Article 10 of the Convention about violation of his right to impart information.<\/p>\n
QUESTIONS TO THE PARTIES<\/p>\n
1.\u00a0\u00a0Was there an interference with the applicant\u2019s freedom of expression, in particular his right to impart information, within the meaning of Article\u00a010 \u00a7\u00a01 of the Convention?<\/p>\n
2.\u00a0\u00a0 If so, was that interference prescribed by law and did it pursue a legitimate aim?<\/p>\n
3.\u00a0\u00a0Was the interference \u201cnecessary in a democratic society\u201d in terms of Article\u00a010 \u00a7\u00a02? In particular:<\/p>\n
(a)\u00a0\u00a0Did the publication of Mr N.B.\u2019s photograph contribute to a debate of public interest?<\/p>\n
(b)\u00a0\u00a0Was Mr N.B. a public person?<\/p>\n
(c)\u00a0\u00a0Where did the applicant get Mr N.B.\u2019s photograph and in what circumstances was this photograph taken? The parties are invited to provide Mr N.B.\u2019s photo which was published on the applicant\u2019s web-site.<\/p>\n
(d)\u00a0\u00a0Was the sanction imposed on the applicant proportionate to the legitimate aim pursued?<\/p>\n
(e)\u00a0\u00a0Did the domestic courts carefully perform the balancing exercise when weighing up Mr N.B.\u2019s right to privacy against the applicant\u2019s right to impart information?<\/p>\n