CASE OF RADIO TWIST, A.S. v. SLOVAKIA
(Application no. 62202/00)
19 December 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of RADIO TWIST, a.s. v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 28 November 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Factual background
B. Broadcast of telephone conversation
“As mentioned in our programme at noon, we managed to obtain the tape recording of a telephone conversation according to which [Mr K.], the Deputy Prime Minister and the Minister of Finance was involved in the events around Slovenská poisťovňa, a.s. Quite naturally, Radio Twist disapproves of any wiretapping unless it is made under a court order. We consider [the present recording] unlawful and dissociate ourselves from the manner in which it was obtained. But because, in this case, a matter of general interest is involved and one which cannot be concealed, ... we now do our best to carry out our duty to inform the public. At the same time, we would like to ask the competent authorities as to the security situation in our country when wiretapping of its high officials is possible. The fact that high officials are involved in activities concerning the above-mentioned case should be considered by those authorised to deal with it. And now to the tape which, due to its technical quality, is almost unintelligible. The other person speaking over the phone is probably [Mr D.], the State Secretary at the Ministry of Justice.”
Mr K: “... the police, with the assistance of the policemen [and] some other security guards have entered and seized the building, they have emptied the building ...”
Mr D: “But this is peculiar, the involvement of the policemen, what could have been the grounds for their action ...”
Mr K: “Certainly, this was the failure of the security guards, the ones that were there at the moment, but this was the layman's approach maybe because ... The policemen were rather hard as it seems according to all circumstances. You know, the police raid was probably organised through [Mr H.], you know the Slovak National Party. Well then, this was all I wanted to say, that there is that ...”
Mr D: “Will you be chairing the meeting?”
Mr K: “Yes, but the boss will arrive to speak on two items on the agenda.”
Mr D: “I see. Otherwise, I have been charged with this task, because he is leaving for Banská Bystrica.”
Mr K: “Good, it is clear, all I wanted to say ...”
Mr D: “Nobody is going to interfere with my business ...”
Mr K: “Well, of course not.”
Mr D: “As he does not yet even know what I am doing ...”
Mr K: “[the first name of Mr D. was mentioned], it would be therefore most important ...”
Mr D: “I shall go and personally inspect it in the morning, before the meeting starts ...”
Mr K: “I would like to ask you to do it, as it will emphasise the fact that they have done it ...”
Mr D: “It is clear.”
Mr K: “I had a phone call from there just half an hour ago ...”
Mr D: “Very good, I also need to know this in order to speak about it there.”
Mr K: “That will be extremely important.”
Mr D: “All right then, right in the morning I shall submit the report about how things are going ...”
Mr K: “Otherwise, you have to turn to me, this lady I have arranged, simply speaking, it is all organised by me, hence ...”
Mr D: “Yes, yes.”
Mr K: “Even if I am not present, I shall later go directly to the Government session, but through this [Mrs M.], they know for sure, actually they are well oriented on the subject ...”
Mr D: “I have got my instructions.”
Mr K: “It is clear, these instructions apply.”
Mr D: “Well then, see you.”
Mr K: “[The first name of Mr D.], thank you very much, see you ... bye ...”
“And let us start to clarify things for a while. The dealings around Slovenská poisťovňa surfaced in public on Monday, 3 June 1996. To put it simply: the ten managers of Slovenská poisťovňa - let us call them Mr [T.] and Co. - were pushed out from their building after the week-end by a private security service. These security guards had been summoned by the new management of Slovenská poisťovňa - let us call them Mrs [B.] and Co. Mr [T.] and Co. have been supported by the police and, as documented by the tapped phone conversation, it is evident that the President of the Police Corps, Major [H.] is the protégé of the Slovak National Party. The former management [T.] and Co. seized the building with the police assistance and, as it has been clear from the start, it was the building of Slovenská poisťovňa. This had happened on Tuesday last week and on the very same day these managers were again sitting in their chairs. As follows from the tapped phone conversation, it is clear that the persons spoke together last Monday, 3 June, and that the State Secretary at the Ministry of Justice, [Mr D.] was a somewhat easier partner for Minister [K.] than the Minister of Justice, [Mr L.], who was in Banská Bystrica that day. We have verified this fact and it was really so. Just to complete the information, it should be noted that last week's Tuesday session of the Government was chaired by Mr [K.]. Owing to the poor technical quality of the recording of the phone conversation between [Mr K.] and [Mr D.], I think it would be worthwhile to listen to it once again.” ...
“We asked for the opinion of the Ministry of Justice. [P.Š.], the spokesman of the Ministry, ... did not know of the contents of the recording as it had not yet been made public in Slovakia. He therefore understandingly did not want to react to it. We expect the response of the Ministry tomorrow. We also turned to Minister [K.]:”
Mr K: “Look, I do not comment on things that are contrary to democracy. I think that journalists should perhaps choose a different approach since governmental officials have been tapped. So I will not comment on something that has been published without my consent. Undoubtedly, this information is about the fact that there has been certain pressure ... in Slovenská poisťovňa.”
C. Action in defamation
He argued that the company had broadcast the telephone conversation despite the fact that it had been obtained in an illegal manner. The broadcast had interfered with his personal integrity by harming his reputation, dignity and respect for his person among the public. In addition, the published statements included distorted and incomplete information capable of discrediting him.
The plaintiff also referred to the fact that the information had subsequently been taken over by the Czech TV station Nova, and that several articles had been published in the Slovak dailies SME, Práca and Slovenská republika. As a result, the confidence between the Minister of Justice and the plaintiff had been undermined.
He acknowledged that, at the time when the recording had been made, he had spoken with several persons and admitted that the recording contained his voice. The recording and the comments as such had been isolated from their context, and the telephone conversation had not been published in its entirety. The plaintiff denied that the subject of the conversation had been the facts as presented by the commentator, since his office did not authorise him to intervene in the case as indicated in the broadcast.
“We apologise to [Mr D.], the former State Secretary at the Ministry of Justice of the Slovak Republic, at present judge of the Constitutional Court of the Slovak Republic, for having broadcast an unlawfully obtained recording of a telephone conversation on 12 June 1996 at 6 p.m.”
The District Court further noted that the dignity of the plaintiff as a public official had been diminished as the issue had been commented on in the press and television. It therefore considered it appropriate to order the applicant company to compensate the plaintiff in respect of non-pecuniary damage under paragraph 2 of Article 13 of the Civil Code.
II. RELEVANT DOMESTIC LAW
A. The Constitution
B. Civil Code
C. Periodical Press and other Mass Media Act (Law no. 81/1966 Coll.)
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Arguments of the parties
B. The Court's assessment
1. General principles
2. Application of the general principles to the present case
(a) Interference, legality and legitimate aim
The domestic courts held that even public figures had the right to have their privacy protected by law and found that the recorded and broadcast telephone conversation was private in nature and, therefore, could not be broadcast.
The context and content of the conversation were thus clearly political and the Court is unable to discern any private-life dimension in the impugned events. The special standard of tolerance established in the Convention case-law therefore applied (see Incal, cited above, § 54).
At the same time, the Court finds that questions concerning management and privatisation of State-owned enterprises undoubtedly and by definition represent a matter of general interest. This is even more so in periods of economic and political transition. In the circumstances of the instant case it is not relevant whether or not the recording was clearly audible and whether or not it gave rise to further public debate.
They concluded that the fact that such a recording had been broadcast constituted of itself a violation of the plaintiff's right to protection of his personal integrity. This follows both from the operative part of the District Court's judgment (see paragraph 23 above) as well as from the reasoning of both the District Court and the Regional Court (see paragraphs 25 and 27 above).
It follows that the reasons invoked for the interference in issue are too narrow and thus insufficient.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article 10 of the Convention.
Done in English, and notified in writing on 19 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
1 SKK 100,000 is equivalent to approximately 2,600 euros (EUR).