EHRM in portretrechtzaak Parool / Nederland

Van P. eiste schadevergoeding van Het Parool omdat Het Parool in 2009 zijn foto had gepubliceerd bij een artikel over hem. Van P. werd verdacht van het doodsteken van een hulpverleenster van Spirit, een hulpverleningsinstantie voor dakloze jongeren, en het ernstig verwonden van twee andere hulpverleensters. Hij had deze misdaad ook bekend. Aanleiding voor de fatale steekpartij was dat Van P. door de medewerksters werd aangesproken op zijn agressieve gedrag. Van P. is inmiddels onherroepelijk veroordeeld tot 12 jaar gevangenisstraf en TBS.

Het Parool ontdekte dat Van P. had meegewerkt aan een documentairereeks genaamd “Vrije Radicalen” van de NPS, waarin een groep jongeren die zich tegen de samenleving had gekeerd door een cameraploeg werd gevolgd. Van P. sprak over zijn strafblad, het litteken in zijn gezicht dat hij bij een vechtpartij had opgelopen en zijn bewondering voor de bende de Crips. Het Parool vond dit gezien de laatste gewelddadige daad van Van P. zeer nieuwswaardige informatie. Bij het artikel werd een still uit de documentaire geplaatst waarop het gezicht van Van P. met het litteken goed te zien was. De documentaire was op het moment van publicatie door Het Parool nog via Uitzending Gemist beschikbaar.

De rechtbank Amsterdam oordeelde dat Van P. geen recht op schadevergoeding had en dat Het Parool de foto mocht publiceren. Het Hof Amsterdam besliste anders. Weliswaar had de foto zeggingskracht, was hij relevant en toonde gen “details of his private life”, uiteindelijk woog het Hof het recht op privacy van Van P. zwaarder dan de vrijheid van meningsuiting van Het Parool. Het Parool had de foto ook met een balkje kunnen plaatsen, aldus het Hof. Van P. kreeg een schadevergoeding van € 1.500. Het oordeel van het Hof getuigt van een opmerkelijke opinie over het internet: “Dat thans nog portretten van Van P. op internet kunnen worden gevonden (afkomstig uit de documentaire en de rapclip), kan niet tot een ander oordeel leiden. Van belang is immers dat Het Parool c.s. destijds een foto hebben gepubliceerd in de krant, die – anders dan bij het gebruikmaken van internet – in één oogopslag en zonder verdere handelingen waargenomen kon worden.

Op 4 oktober 2013 wees de Hoge Raad het cassatieberoep van Het Parool af. Daarop stapte Het Parool naar het EHRM, dat de klacht op 20 september 2016 ‘inadmissable’ oordeelde. Het Parool werd in deze zaak bijgestaan door Jens van den Brink.

Noot bij arrest EHRM

In EHRC 2017/21 verscheen een (kritische) noot over het arrest Rex van P van de hand van Ronan Ó Fathaigh en Kim de Beer van het Instituut voor Informatierecht van de UvA en het Fonds Podiumkunsten. Hierna volgen daaruit enkele interessante passages:

 

In Parool, the European Court was called upon to consider a claim under a provision in copyright law that limited a newspaper’s freedom to publish an accused person’s photograph. The Court held, in effect, that a person charged with a violent homicide may seek damages from a newspaper for publishing his photograph, even where the article is “true and correct,” (Parool, par. 34) concerns a matter of “serious public concern,” (id.) where the photograph “does not contain details” of his private life (id., par. 16), and was not obtained using “subterfuge or other illicit means” (Von Hannover v. Germany (No. 2) (ECtHR 7 February 2012 (GC), no. 40660/08, par. 113, «EHRC» 2012/72 case comment De Lange and Gerards). Given the significance of the decision for the potential liability of newspapers when reporting on criminal proceedings, it seems curious that the Court considered it sufficient to dismiss the application as “manifestly ill-founded.” In light of this, a number of points should be made concerning the Court’s reasoning.

First, the Court states that it had laid down the “relevant principles” which “must guide its assessment” in balancing the right to freedom of expression and the right to respect for private life (Parool, par. 33). It refers to the criteria established in Axel Springer AG v. Germany (ECtHR 7 February 2012 (GC), no. 39954/08, «EHRC» case comment De Lange and Gerards), where the Court held a ban on publication of two articles, accompanied by photographs, reporting the arrest, trial and conviction of a television actor violated Article 10. The Court in Parool listed the criteria to be applied, namely (a) contribution to a debate of public interest, (b) the degree of notoriety of the person affected and the subject of the news report, (c) the prior conduct of the person concerned, (d) the content, form and consequences of the publication, (e) the circumstances in which the photographs were taken, (f) the way in which the information was obtained and its veracity, and (g) severity of the penalty imposed. In several aspects Parool and Axel Springer are quite similar, but the Court comes to differing conclusions. When these criteria are applied to Parool it seems surprising the Court ends up concluding there is no violation of Article 10.

First, in both cases the Court established the offence reported on was a matter of public interest. Second, while R.P. may not have enjoyed the same status as the actor in Axel Springer, the Court did establish that he did enjoy a “certain notoriety”. Third, the Court stated that R.P. “actively encouraged” this notoriety by participating in a documentary and posting rap videos on YouTube (id., par. 34). The Court in Axel Springer also expressly stated that the fact a photograph has “already appeared in an earlier publication,” must also “be taken into consideration” (id., par. 92). Curiously, the Court in Parool nowhere mentions this principle, and its application would weigh heavily in favour of a violation of Article 10. Fourth, and similar to Axel Springer, there was nothing questionable about the way the information was obtained. Interestingly, the Court in Parool seems to omit taking into consideration that the photograph was taken from a documentary made with R.P.’s permission. Fifth, the information published by Parool was “true and correct” (id. par 34). Furthermore, in both cases the claims that the publications could have serious consequences were not really substantiated. Sixth, although the Court stated in Axel Springer that the sanctions imposed were “lenient,” it did conclude that the sanctions could “have a chilling effect” (Axel Springer, par. 109). The sanctions in both cases are comparable.

While Parool and Axel Springer are quite similar, what seemed to have tipped the scale towards Article 8 is the assessment that R.P. is not well known. However, that is not as clear cut as the Court as well as the domestic courts make it seem. The Court itself reaches the conclusion that –even without participation on the documentary – R.P. enjoyed a “certain notoriety,” which he had “actively encouraged” (id., par. 34). It follows from Axel Springer that there is a connection between the way you actively seek out attention and the “legitimate expectation” you can have of your private life being protected (Axel Springer, par. 101). It would be fair to say that R.P.’s legitimate expectation of having his private life protected would be less than a completely unknown person. Furthermore, the Court seems to neglect the biggest difference with Axel Springer, which is the seriousness of the offence. In Axel Springer the Court agreed with the assessment of the domestic courts that the offence that was committed probably would not have been interesting if it had been committed by an unknown person, and was “of medium, or even minor, seriousness.” (Axel Springer, par. 100). The same cannot be said about the crimes R.P. had been charged with. The stabbing of three people which resulted in the death of one is a serious offence. This is a matter of public interest no matter who committed the crime, and the Court itself admits it was of “serious public concern” (Parool, par. 34). Moreover, in Axel Springer the Court also held that was a public interest in “X’s arrest,” not merely his conviction (id. par. 99). Finally, the Court in Parool fails to address the Court of Appeal’s point that “a less recognisable portrait” should have been used, such as “placing a black rectangle over the eyes” (Parool, par. 16). It is difficult to see how this squares with the principle in Axel Springer that a court should not “substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case” (Axel Springer, par. 81). If the Court strictly applied the Axel Springer criteria it should arguably have reached the conclusion Article 10 had been violated.

The second issue concerns the Court appearing to apply a particularly weak standard of review, holding that the Court of Appeal had not acted “unreasonably” (Parool, par. 36). But this is a highly questionable standard of review: the Court offers no authority for such a standard, and arguably stands in direct opposition to the seminal Sunday Times v. UK (No. 1) (ECtHR 26 April 1979, no. 6538/74) judgment, where the Court, sitting in a 20-judge plenary court, rejected the idea that the Court’s supervision was limited to determining if domestic courts acted “reasonably, carefully and in good faith” (id., par. 59). Indeed, the Court continues to reject any “reasonableness” standard of review, as confirmed in Axel Springer, that even where Article 8 is being balanced with Article 10, any restriction on freedom of expression must be “construed strictly,” and “established convincingly” (Axel Springer, par. 78). It is worth noting the majority in Axel Springer rejected the dissenting opinion’s application of a reasonableness-type test, that domestic court judgments should only be set aside where they are “manifestly unreasonable” (id., dissenting opinion, par. 6). Notably, the author of the dissenting opinion in Axel Springer was Judge Luis López Guerra, who was president of the Third Section for Parool.

It could be suggested that the Court in Parool sought to apply a weak standard of review given that both the Court of Appeal and Supreme Court had dismissed the appeal, and reflected a degree of deference to the Dutch courts. However, it is important to remember that in Axel Springer, the Court disagreed with the unanimous view of three levels of German courts, including the Federal Court of Justice, and in Couderc and Hachette Filipacchi Associés v. France (ECtHR 10 November 2015 (GC), no. 40454/07 «EHRC» 2016/32 case comment De Lange), the Court disagreed with three levels of French courts, including the Court of Cassation.

The third point relates to the Court citing two cases as “supporting” the Court of Appeal’s view that the newspaper’s Article 10 right “did not outweigh” the accused person’s Article 8 right: Egeland and Hanseid v. Norway (ECtHR 16 April 2009, no. 34438/04, «EHRC» 2009/75 case comment Gerards) and Bédat v. Switzerland (ECtHR 29 March 2016 (GC), no. 56925/08, «EHRC» 2016/147 case comment De Lange). However, it is arguable that neither of these authorities are on point. First, Egeland involved a specific Norwegian law which criminalised photographing suspects or convicted persons on their way “to, or from, the hearing or when he or she is staying inside the building in which the hearing takes place” (Section 131A, Administrative of Courts Act 1915). Notably, the law was limited to the “immediate vicinity of the court premises,” and “photographing beyond that point was not prohibited” (id., par. 45). Two newspaper editors had been convicted under section 131A for publishing photographs of a woman “in tears and great distress” leaving a courthouse (id., par. 61), having just been convicted of aiding a homicide. However, the Court held that the editors’ convictions did not violate Article 10 because the photographs showed the woman “at her most vulnerable psychologically,” and “emotionally shaken” (id.). The Court held that she was “in a state of reduced self-control,” which was a “core” situation the law “was intended” to protect (id.).

In contrast, there is nothing in Parool suggesting the photograph showed the accused at his “most vulnerable psychologically,” and the domestic courts explicitly stated that the photograph “does not contain details” of his private life (Parool, par. 16). Indeed, not only is Egeland arguably not applicable to the facts in Parool, it seems to support the opposite conclusion in Parool, given the photograph was simply a “still picture” taken from a documentary in which the accused had given “his active cooperation” (id., par. 16).

[…]

The Court’s reliance on a case concerning a law criminalising photographing persons in the vicinity of court buildings (Egeland) and another case concerning publication of confidential investigation documents which did not include photographs (Bédat) seems somewhat curious given that there is authority which deals directly with the facts in Parool, namely Eerikäinen and Others v. Finland (ECtHR 10 February 2009, no. 3514/02, «EHRC» 2009/42).

In Eerikäinen, a journalist had been convicted under Chapter 27, Article 3a of Finland’s Penal Code, which criminalises publication of “an image depicting the private life of another person which was liable to cause him or her damage or suffering.” The journalist had published an article and photograph of a non-public figure being prosecuted for fraud offences. Similar to Parool, the photograph had been published previously, when the accused had given an interview to a magazine eight years earlier about his small business. However, the Court held that the journalist’s conviction had violated Article 10, holding that Finland’s Supreme Court had failed to “analyse the significance of the fact that the photographs had been taken with the applicant’s consent and with the intention of their being published, albeit in connection with an earlier article and a different context” (id., par. 70). The Court reiterated that “freedom of expression also extends to the publication of photos,” and applied the principle from Jersild that a court should not “substitute its own views for those of the press as to what techniques of reporting should be adopted by journalists.” (id., par. 65, Jersild v. Denmark, ECtHR 23 September 1994, no. 15890/89). The Court also noted the report was “a matter of legitimate public interest,” based on “facts,” with nothing “excessive or misleading.” Importantly, the Court cited with approval the principle from Krone Verlag GmbH & Co. KG v. Austria (ECtHR 26 February 2002, no. 34315/96) that “particular importance” should be attached to the fact a photograph did “not disclose any details of the private life” of the person concerned (id., par. 62).

Notably, Eerikäinen was unanimous, presided over by a former president of the Court, Judge Nicolas Bratza, and cited on three separate occasions in Axel Springer, including as authority for the principle that a court should not “substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case” (Axel Springer, par. 81). There is a strong argument that Eerikäinen is a controlling authority for Parool, and given the factors in Parool, namely the article is “true and correct,” concerns a matter of “serious public concern,” includes a photograph from a documentary he had previously “cooperated with” (Parool, par. 18), and the photograph “does not contain details” of his private life, seems to point to a violation of Article 10.

[…]

In light of the discussion above, it is hoped that the analysis demonstrates that, at the very least, Parool should have been declared admissible by the Third Section, with a full judgment considering all the appropriate principles highlighted in this article.

 

R. Ó Fathaigh, Instituut voor Informatierecht, Universiteit van Amsterdam

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K. de Beer, Fonds Podiumkunsten

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