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RADIO TWIST, A.S. v. SLOVAKIA - 62202/00 [2006] ECHR 1152 (19 December 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1152.html
Cite as:
[2006] ECHR 1152
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FOURTH
SECTION
CASE OF
RADIO TWIST, A.S. v. SLOVAKIA
(Application
no. 62202/00)
JUDGMENT
STRASBOURG
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:
PROCEDURE
The
case originated in an application (no. 62202/00) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a private joint-stock company incorporated in
Slovakia, RADIO TWIST, a.s. (“the applicant”), on 20 July
2000.
The
applicant company was represented by Mr P. Blahušiak, a lawyer
practicing in Bratislava, who was succeeded by Mr M. Hanúsek,
a lawyer also practising in Bratislava. The Slovakian Government
(“the Government”) were represented by Mrs A. Poláčková,
their Agent.
The
applicant company alleged that judicial decisions granting an action
in defamation by an individual against it violated its right under
Article 10 of the Convention to impart information.
By
a decision of 8 November 2005, the Court declared the application
admissible.
The
Government, but not the applicant, filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant is a broadcasting company which was
established in 1991 and has its registered seat in Bratislava.
A. Factual background
At
the relevant time the applicant company broadcast on five frequencies
in Slovakia and had a daily audience of more than 400,000 listeners.
Its broadcasts have been based on the principles of democracy and
independence.
At
the relevant time Slovenská poisťovňa, a.s.
(“SP) was a major insurance company in Slovakia. It was
controlled by the State through the National Privatisation Agency
(Fond národného majetku – “FNM”).
Following
the parliamentary elections held in 1994 the management of SP was
nominated by a political agreement among the coalition parties then
in power. The coalition included the Movement for Democratic Slovakia
(Hnutie za demokratické Slovensko-
“HZDS”) and the Slovak National Party (Slovenská
národná strana - “SNS”).
At
that time the nominees of HZDS had a majority in the bodies of the
FNM.
On
1 June 1996 the supervisory board of SP removed the persons nominated
by SNS from the company's board of directors and appointed a new
management. The outgoing management did not accept the removal.
On
3 June 1996 the former management took over the headquarters of SP.
They were assisted by private security guards and a squad of the
State police which had been assigned to the task by the president of
the Slovak Police Corps, a nominee of SNS. They forced the newly
appointed management to leave the premises but a few days later the
new management, assisted by their own private security service,
regained control over the company and its premises.
The
background of that struggle related to the wish of those involved to
participate in the privatisation of SP. The revocation of the
SNS nominated management caused a serious political crisis in
the government.
At
the relevant time Mr K. was the Deputy Prime Minister and the
Minister of Finance and Mr D. was State Secretary at the Ministry of
Justice. The posts of State Secretaries within Ministries were filled
through appointments by political parties. Such posts were therefore
political posts and did not form part of the civil service.
After
the events complained of Mr D. was elected a judge of the
Constitutional Court.
B. Broadcast of telephone conversation
On
12 June 1996 at 6 p.m., the applicant company broadcast, in the news
programme “Journal”, the recording of a telephone
conversation between Mr K. and Mr D.
The
broadcast started with a commentary by the applicant company's
commentator. In it the names of the persons involved were mentioned
in full and it read as follows:
“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.”
Immediately
thereafter the recorded conversation of Mr K. and Mr D. was
played. The transcript of its broadcast reads as follows:
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 ...”
The
subsequent commentary of the journalist, in which full names of those
involved were again mentioned, went as follows:
“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
Mr
D. filed a civil action against the applicant company in the Bánovce
nad Bebravou District Court (Okresný
súd) for protection of his personal integrity.
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.
In
its observations in reply the applicant company stated that the
recording had been deposited in its mailbox by unknown persons. At
the time when the tape had arrived controversial issues had been
discussed for about a week concerning the fact that, as a result of
the above conversation, the coalition government was threatened with
a split. Prior to the broadcast employees of the applicant company
had tried to contact the persons concerned in accordance with the
company's internal rules. Although the tape was almost
unintelligible, as an information medium the applicant company had
felt obliged to inform the public and to show what was going on in
political circles at that time. In the commentary on the programme
the journalist had stated that the applicant company disapproved of
the manner in which the recording had been obtained.
The
District Court heard the parties and 3 witnesses and examined
a transcript of the impugned broadcast and other documentary
evidence.
In
a judgment delivered on 16 March 1999 the District Court ordered the
applicant company to offer the plaintiff a written apology and
to broadcast that apology within 15 days. It was to read as
follows:
“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
applicant company was further ordered to pay 100,000 Slovakian
korunas
(SKK) to Mr D. in compensation for damage of a non pecuniary
nature as well as to reimburse his legal costs.
The
District Court based its judgment inter alia on the following
reasons. The applicant, being a licensed radio broadcasting company,
had the right to use, without the previous consent of a person, audio
recordings for scientific and artistic purposes and also for news
reporting. However, under the last sentence of Article 12 §
3 of the Civil Code, such use should not be in conflict with the
justified interest of the person concerned. The applicant company had
not been prevented from commenting on the situation which had arisen
and from presenting its views. However, in order to do so it had not
been necessary to broadcast a tape obtained in an illegal manner.
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.
The
applicant company appealed. It maintained that the Constitution did
not subject the use of recordings to the prior establishment of their
lawfulness and that it had not been formally shown that the recording
had been unlawfully obtained. The plaintiff was a public official and
the contents of the recording concerned the exercise of a public
function. It had been discussed several days prior to its
publication. By broadcasting the telephone conversation the applicant
company had fulfilled its task to inform the public about issues
of public interest. Finally, the applicant pointed out that the
plaintiff had become a constitutional judge in the meantime, and that
it had not been shown that he had suffered any damage as a result of
the broadcast.
On
22 February 2000 the Zilina Regional Court (Krajský
súd) upheld the judgment of the District Court. The
Regional Court admitted that imparting of information by the media
was one of the important instruments of control of political power in
a democratic society. Informing about and criticising matters of
public interest thus belonged among the most important public
interests. The constitutional protection of such interests was
ensured by the guarantee of freedom of expression and of the right to
information. However, in the case under consideration the freedom of
communication of the users of telecommunications services had been
violated, and an interference with the right to respect for privacy
had occurred as a result of making public the telephone conversation.
That fact was the essence of the applicant company's unjustified
interference with the plaintiff's personal rights since, as the
Regional Court held, the protection of privacy extends to the
conversations of public officials.
II. RELEVANT DOMESTIC LAW
A. The Constitution
Article
16 § 1 provides for protection of a
person's integrity and privacy. Restrictions are permissible only in
cases provided for by the law.
Article
22 guarantees the secrecy of correspondence, other communications and
written messages delivered by post, and of personal information (§
1). The privacy of letters, other communications and written messages
kept privately or delivered by post or otherwise, including
communications made by telephone, telegraph and other means, cannot
be violated by anyone except in cases specified by law (§ 2).
Paragraph
1 of Article 26 guarantees freedom of expression and the right to
information. Its paragraph 2 provides, inter alia, that anyone
has the right to express his or her views and to freely seek, receive
and impart ideas and information. Under its paragraph 4, freedom of
expression and the right to seek and impart information can be
restricted by means of a law where such restriction is necessary in a
democratic society for the protection of, inter alia, the rights and
freedoms of others.
Under
Article 26 § 5, as in force at the
relevant time, State authorities and local self-government
authorities were obliged to provide information about their
activities in an appropriate manner. Further details in this respect
were to be laid down in a special law.
B. Civil Code
The
right to protection of a person's personal integrity is guaranteed by
Articles 11 et seq. of the Civil Code.
According
to Article 11 natural persons have the right to protection of their
personality, in particular of their life and health, civil and human
dignity, privacy, name and personal characteristics.
Article
12 § 1 provides, inter alia,
that audio recordings concerning natural persons or their expressions
of a personal nature may only be made or used with the consent of the
person concerned. Under paragraph 2 of that Article such consent is
not required where the documents or recordings are used for official
purpose in accordance with the law. Article 12 §
3 provides that pictures and audio recordings can also be made and
used in an appropriate manner without the consent of the person
concerned for scientific and artistic purpose and also for news
reporting by means of press, film, radio and television. Such use
cannot, however, be contrary to the justified interests of the person
concerned.
Pursuant
to Article 13 § 1, all natural persons
have the right to request an order restraining any unjustified
interference with their personal integrity, an order cancelling out
the effects of such interference and an award of appropriate
compensation.
Article
13 §2 provides that in cases where the
satisfaction afforded under Article 13 §
1 is insufficient, in particular because the injured party's dignity
or social standing has been considerably diminished, the injured
party is also entitled to financial compensation for non-pecuniary
damage.
C. Periodical Press and other Mass Media Act (Law no.
81/1966 Coll.)
The
Act regulates the citizens' (občan)
use of press and mass media in accordance with the constitutional
freedom of expression and press (section 1 (1). Its Part (časť)
V governs protection against abuse of the freedom of expression and
press. It contains, inter alia, the following rules.
Legal
protection is afforded to any person who makes use of his or her
freedom of expression and press (section 16(1)).
Under
section 16(2) the publishing of information that threatens legally
protected interests of the society or citizens is considered an abuse
of the freedom of expression or press. The protection of the society
and citizens against abuse of the freedom of expression and press is
entrusted to the publisher, the chief editor, the editor and the
author. Details are to be laid down in special legislation which, at
the same time, regulates the liability of the publisher for damage
caused by press or other mass media.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant company complained that its right to impart information had
been violated by the judicial decisions granting the action of Mr D.
It relied on Article 10 of the Convention which provides that:
“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
The
Government admitted that Mr D. had been a public figure at the
relevant time as he had been involved in politics. However, the
recorded telephone conversation had been of a private character.
Relying on the Court's judgment in the case of Tammer v. Estonia
(no. 41205/98, ECHR 2001 I), they argued that the especially
narrow limits of permissible criticism otherwise applicable to
politicians do not apply to their private affairs.
The
Government further emphasised that the recording in question had been
made illegally and in violation of the constitutional protection of
secrecy of correspondence and other communications. The applicant had
known that the recording had unlawful origins, yet it had decided
to broadcast it for reasons which were not tenable. In support
of that conclusion the Government pointed out that the recording was
almost unintelligible, that there were doubts as to whether the
recorded voice was that of Mr D. and that no relevant information
could be derived from the recording due to the obscure and unclear
character of its contents.
In
view of the above arguments the Government considered that the
broadcasting of the recording had not made any contribution to public
discussion other than on whether the applicant company had breached
the principles of journalistic ethics. Nevertheless, it had made an
untrue impression, harmful to the reputation of Mr D., that he had
been involved in the events surrounding the privatisation of SP.
The
Government considered relevant and sufficient the reasons given in
particular by the District Court. As to the sanction imposed, it was
proportionate to the legitimate aim pursued. They concluded that the
interference had been necessary in a democratic society in that it
had complied with a pressing social need and had been proportionate
to the legitimate aim pursued.
Finally,
relying on Article 17 of the Convention, the Government maintained
that the applicant company could not seek protection under Article 10
of the Convention as its conduct had intentionally interfered with
the rights of Mr D. which were also guaranteed by the Convention. In
particular, nothing had prevented the applicant company from
commenting on the existing situation and from criticising the conduct
of those involved in a reasonable manner without broadcasting an
illegally obtained recording.
The
applicant company maintained that the interference complained of had
not corresponded to any social need which could be considered
sufficiently pressing to outweigh the public interest in ensuring the
freedom of the media and in informing the public of matters of
general interest.
B. The Court's assessment
1. General principles
Freedom
of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress
and each individual's self-fulfilment. Subject to paragraph 2 of
Article 10, it is applicable not only to “information” or
“ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness, without which there is no “democratic
society”. This freedom is subject to the exceptions set out in
Article 10 § 2, which must, however, be construed strictly. The
need for any restrictions must be established convincingly (see, for
example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, §
43, ECHR 1999-VIII).
An
interference with a person's freedom of expression entails
a violation of Article 10 of the Convention if it does not fall
within one of the exceptions provided for in paragraph 2 of that
Article. The Court therefore has to examine in turn whether such
interference was “prescribed by law”, whether it had an
aim or aims that is or are legitimate under Article 10 § 2 and
whether it was “necessary in a democratic society” for
the aforesaid aim or aims (see, for example, Sunday Times v. the
United Kingdom (no. 1), judgment of 26 April 1979, Series A no.
30, § 45).
The
adjective “necessary”, within the meaning of Article 10 §
2, implies the existence of a “pressing social need”. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with a European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court
is therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see, for example, Janowski v. Poland
[GC], no. 25716/94, § 30, ECHR 1999-I).
In
exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole, including
the content of the remarks held against the applicant and the context
in which he made them. In particular, it must determine whether the
interference in issue was “proportionate to the legitimate aims
pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”
(see, for example, Barfod v. Denmark, judgment of 22 February
1989, Series A no. 149, p. 12, § 28). In doing so, the Court has
to satisfy itself that the national authorities applied standards
which were in conformity with the principles embodied in Article 10
and, moreover, that they based themselves on an acceptable assessment
of the relevant facts (see, for example, Jersild v. Denmark,
judgment of 23 September 1994, Series A no. 298, p. 23, § 31).
The
Court further recalls the essential function the press fulfils in
a democratic society. Although the press must not overstep
certain bounds, particularly as regards the reputation and rights of
others and the need to prevent the disclosure of confidential
information, its duty is nevertheless to impart – in a manner
consistent with its obligations and responsibilities information
and ideas on all matters of public interest (see, for example, Bladet
Tromsø and Stensaas v. Norway [GC], no. 21980/93, §
58, ECHR 1999-III). In addition, the Court is mindful of the fact
that journalistic freedom also covers possible recourse to a degree
of exaggeration, or even provocation (see, for example, Perna v.
Italy [GC], no. 48898/99, § 39, ECHR 2003 V).
There
is little scope under Article 10 § 2 of the Convention for
restrictions on political speech or on debate on questions of public
interest (see, for example, Sürek v. Turkey (no. 1) [GC],
no. 26682/95, § 61, ECHR 1999-IV). Moreover, the limits of
acceptable criticism are wider as regards a public figure, such as a
politician, than as regards a private individual. Unlike the latter,
the former inevitably and knowingly lays himself open to close
scrutiny of his words and deeds by journalists and the public at
large, and he must consequently display a greater degree of tolerance
(see, for example, Incal v. Turkey, judgment of 9 June 1998,
Reports 1998-IV, p. 1567, § 54).
The
Court finally reiterates that, in assessing the proportionality of
the interference, the nature and severity of the penalties imposed
are also factors to be taken into account (see, for example, Ceylan
v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV). In this
respect the potential chilling effect of the imposed penalties on the
press in the performance of its task of purveyor of information and
public watchdog in the future must also be taken into
consideration (see, mutatis mutandis, Goodwin v. the United
Kingdom, judgment of 27 March 1996, Reports of Judgments and
Decisions 1996 II, p. 500, § 39 and Barthold v.
Germany, judgment of 25 March 1985, Series A no. 90, p. 26, §
58).
2. Application of the general principles to the present
case
(a) Interference, legality and legitimate
aim
The
Court finds, and it has not been disputed between the parties, that
the judgments of the District Court and the Regional Court in the
action brought by Mr D. for protection of his personal integrity
constituted an interference with the applicant company's right to
impart information under Article 10 of the Convention.
Furthermore,
the Court finds, and it has likewise not been disputed by the
parties, that the interference complained of was prescribed by law,
namely Articles 11 et seq. of the Civil Code, and that it
pursued the legitimate aim of protecting the reputation and rights of
others. Thus the only point at issue is whether the interference was
“necessary” in the “democratic society”.
(b) Necessity
The
Court will now examine whether the allowing of the civil action
against the applicant company was necessary in a democratic society
for the protection of the reputation and rights of Mr D., that is to
say whether it served a pressing social need in his respect.
In
this connection, it must be noted that, as acknowledged by the
domestic courts, at the relevant time Mr D. was a public figure. He
held the office of State Secretary at the Ministry of Justice, a
political post that did not form part of the civil service (see
paragraph 14 above).
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
Court cannot accept that conclusion. It must in particular be noted
that the telephone conversation in question was between two
high ranking government officials, the State Secretary at the
Ministry of Justice on the one hand and the Deputy Prime Minister and
the Minister of Finance on the other. It related to the power
struggle in June 1996 between two groups each with a political
background which had an interest in the privatisation of SP, a major
national insurance provider.
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.
The
Court further observes that the domestic courts, at two levels of
jurisdiction, attached decisive importance to the fact that the
broadcast audio recording had been obtained by unlawful means.
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).
In
connection with that argument it should be noted that at no stage has
it been alleged that the applicant company or its employees or agents
were in any way liable for the recording or that its journalists
transgressed the criminal law when obtaining or broadcasting it. In
so far as the circumstances in which the recording was made are
concerned, it is also to be noted that at the domestic level there
has never been any investigation into the matter. This may well
appear surprising given that the recording concerned a telephone
conversation between two high-ranking government officials and
because a suspicion that the recording had been made by abuse of
official power could not be a priori excluded.
It
should further be noted that it has not been established before the
domestic courts that the recording contained any untrue or distorted
information or that the information and ideas expressed in connection
with it by the applicant company's commentator occasioned as such any
particular harm to the plaintiff's personal integrity and reputation.
As to the latter, it cannot be overlooked that after the impugned
broadcast the plaintiff was elected a judge of the Constitutional
Court (see paragraph 15 above) and that his reputation does not seem
to have been tarnished.
The
Court further observes that the applicant company was sanctioned
mainly for the mere fact of having broadcast information which
someone else had obtained illegally. The Court is however not
convinced that the mere fact that the recording had been obtained by
a third person contrary to law can deprive the applicant company
which broadcast it of the protection of Article 10 of the Convention.
It
follows that the reasons invoked for the interference in issue are
too narrow and thus insufficient.
The
Court finally observes that there is no indication that the
journalists of the applicant company acted in bad faith or that they
pursued any objective other than reporting on matters which they felt
obliged to make available to the public (see paragraph 17 above).
For
the above reasons, it cannot be concluded that by broadcasting the
telephone conversation in question the applicant company interfered
with the reputation and rights of Mr D. in a manner justifying the
sanction imposed on it. The interference with its right to impart
information therefore neither corresponded to a pressing social need,
nor was it proportionate to the legitimate aim pursued. It thus was
not “necessary in a democratic society”.
It
follows that there has been a violation of Article 10 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
The
applicant company did not submit a claim for just satisfaction.
Accordingly, the Court considers that there is no call to award any
sum on that account.
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
Registrar President
