Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
Closed Expands Expression
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The Constitutional Court of Russia upheld a law that allowed media organizations and journalists to publish information about the private life of public figures and their photos without their consent, as long as it served public interest purposes. Mr. Sergey Bezrukov, a famous Russian actor, brought the constitutional complaint in relation to his unsuccessful attempts to restrict non-consensual usage of his photos and dissemination of private information about him by Russian newspapers. The Constitutional Court, heavily relying on jurisprudence of the European Court of Human Rights, explained that Russian law regulating the keeping, collection, and dissemination of private information properly balanced the right to private life and freedom of expression. Specifically, the law protected the right to private life by imposing restrictions on certain information, while providing public interest exceptions. In its reasoning, the Court also considered the fact that Mr. Bezrukov could have requested information about him to be de-indexed to protect his privacy.
Sometimes in 2016, Mr. Bezrukov filed a complaint against “News Media,” a media company, before the Savelovsk District Court of Moscow. He argued that the use of photographs of him without his approval violated his rights to a private life and his image.
In August 2016, the Savelovsk District Court agreed that “News Media” violated the actor’s image rights, but did not find a violation of his right to a private life. In making its judgment, the Savelovsk Court referred to article 152(1) of the Russian Civil Code, which, barring public interest reasons, prohibits keeping, using and disseminating information about a private life of an individual, unless the individual consents. The court noted that in this case the photos were taken using a hidden camera, during a non-public event, and that the actor never posed for them or even looked at the camera. At the same time, Mr. Bezrukov was a film actor and a recognized People’s Actor of the Russian Federation, which made him a public figure. Thus, the stories in question were written about him in the public interest. Further, the stories did not include negative information or intimate details of his life. Although the court only partially satisfied Mr. Bezrukov’s complaint, it nonetheless awarded him compensation for moral harm.
Dissatisfied, Mr. Bezrukov appealed. In February 2017, the Appellate Judicial Board of the Moscow City Court held two appellate trials. It upheld the first instance judgment and fully endorsed its reasoning. The Appellate Judicial Board, with reference to the European Court of Human Rights Judgment in Von Hannover v Germany, added that the first instance court properly balanced the public interests of the media company with the rights to private life and image of Mr. Bezrukov.
Mr. Bezrukov appealed once again but the Supreme Court of Russia refused to hear the case.
Action Against publishers “Komsomolskaya Pravda” and “Sem Dney” (Seven Days), and Mrs. V., a private citizen
Mr. Bezrukov complained that the publishers “Komsomolskaya Pravda” and “Sem Dney” (Seven Days), as well as Mrs. V. used photos of him without his consent, thus violating his rights to private life and image. He sought compensation for moral harm, and an order to have “Sem Dney” delete certain publications about him from the internet.
In judgments from July and September 2016, the Savelovsk District Court of Moscow refused to satisfy Mr. Bezrukov’s complaint. The court, guided by article 152(1) of the Russian Civil Code, noted that the publishers and Mrs. V. re-published already available information about Mr. Bezrukov. Further, Mr. Bezrukov’s acting career made him a public figure and there existed a public interest in information about his private life. The publishers also used photos for which Mr. Bezrukov posed during public film screenings and photo sessions. This suggests that the photos had been taken to be used by mass media.
The Moscow City Court’s Appellate Board for Civil Cases upheld the first instance judgment. The Appellate Board also noted that the first instance judgment reflected the precedent set by the European Court of Human Rights in Von Hannover v Germany and Krone Verlag GmbH & Co. KG v Austria. Mr. Bezrukov appealed yet again, but the Supreme Court rejected the appeal.
The Constitutional Complaint
Having failed at lower instance courts, Mr. Bezrukov brought a complaint to the Constitutional Court of Russia. He argued that article 152(1) of the Russian Civil Code was incompatible with constitutional guarantee of the right to the inviolability of private life (article 23(1)) and prohibition on the collection, keeping, use and dissemination of information about the private life of a person without consent (article 24(1)), because it allowed the media to keep and disseminate private information without consent.
The Russian Constitutional Court began by outlining the legal and constitutional guarantees related to privacy and freedom of expression. The Court reiterated that article 23 of the Russian Constitution guaranteed the inviolability of private life, personal and family confidentiality, as well as reputation. Further, the article 24(1) of the Constitution prohibits the collection, keeping, use and dissemination of private information without consent. At the same time, article 29 (4-5) of the Constitution declares that everyone has the right to seek, receive, share and produce information using lawful means, that freedom of the media is guaranteed, and that censorship is prohibited. In its Decree No. 18-P from 9 July 2013 the Court noted that the above mentioned constitutional guarantees apply to all information, regardless of how it was produced or disseminated, including online information.
The Court noted that the constitutional guarantees it listed above were compatible with international treaties signed by Russia. The European Convention on Human Rights guarantees the right to private and family life in article 8. At the same time, freedom of expression, which includes the freedom to receive and disseminate information without interference by public authority, is laid out in article 10(1) of the Convention. Further, the European Court of Human Rights upheld the importance of the internet in storing and expanding public access to information (Ahmet Yildirim v Turkey). At the same time, the European Court warned that online information could pose greater harm to the private lives of individuals than print media, in Delfi AS v Estonia and Editorial Board of Pravoye Delo and Shtekel v Ukraine.
Furthermore, the European Court in Von Hannover and Ion Carstea v Romania explained that a discussion in the public interest does not solely need to relate to politics, but could also relate to sports, acting, or other artistic endeavor. At the same time, in Courderc v France, the European Court held that publications seeking to solely satisfy the curiosity of certain readers about the details of an individual’s private life, no matter how famous, did not contribute to public debate.
After listing relevant European Jurisprudence, the Constitutional Court reiterated that in order to ensure the effective protection of human rights Russian courts of general jurisdiction could take into account the position of the European Court of Human Rights on issues concerning human rights and fundamental freedoms, as noted in according to Decree No. 21 of the Plenary of the Supreme Court of the Russian Federation issued on 27 June 2013. In this context, the Constitutional Court noted that it had to take into account that there was no public interest in information about a private life of an individual, particularly its intimate aspects, solely because the individual was a public figure.
According to the Court, Russian legislation reflected the practice of the European Court of Human Rights. Article 49 of the 1991 Federal Law on Mass Media obliges journalist to receive consent to disseminate information about a citizen’s private life from the citizen or his/her representatives. Upon receiving such consent, the journalist must notify the citizen or the representatives of any audio or video recordings, or photography that may take place.
In the 2010 Decree No. 16 on Mass Media, the Plenary of the Supreme Court of Russia explained that information in the public interest did not apply to all topics in which the public had an interest, but should be related to, for example, information about threats to democracy, national security or the environment. In assessing whether information is of public interest, courts needed to make distinctions between factual information, even when it is controversial, that could have a positive impact on public discussions, and irrelevant information about private lives of public figures.
In the 2010 Decree No. 16 on Mass Media, the Plenary of the Supreme Court of Russia explained that information in the public interest did not apply to all topics in which the public had an interest, but should be related to, for example, information about threats to democracy, national security or the environment. In assessing whether information was of public interest, courts needed to make distinctions between factual information, even when it was controversial, that could have a positive impact on public discourse, and information about private lives of public figures irrelevant to public discourse.
Moreover, the Plenary of the Supreme Court highlighted in the 2015 Decree No. 25 on Interpreting the Section I of the Civil Code of the Russian Federation that the identification and usage of a photo of an individual without his/her consent was permissible, if there was a public interest in doing so. For example, there was a general public interest in information about public figures that played an important role in politics, economics, sports, arts or other sectors. However, according to the Decree, consent was needed when a photo served only philistine or financial purposes.
The Constitutional Court also reiterated that under the Federal Law on Mass Media, publishers, media companies, and journalists could not be held liable for reproducing content created by another party, as long as the reproduction was verbatim and the other party could be held legally responsible. Under the 2010 Decree No. 16 on Mass Media, verbatim reproduction meant that the meaning of the original content and its author’s words were not changed. At the same time, the Court noted that it was possible to quote someone or something verbatim, but completely misinterpret its original meaning. In such cases, the entity that reproduced the content could be held liable. The Court highlighted that this legal interpretation was compatible with the jurisprudence of the European Court of Human Rights, particularly the Von Hannover case.
The Constitutional Court then applied the legal standards to the facts of the case. It noted that Mr. Bezrukov had the right to request unlawful information about him to be de-indexed, but he never attempted to utilize this right. To the Court, this option balanced the right to information with the right to private life, as reflected in the Fuchsmann v Germany judgment rendered by the European Court of Human Rights. In it, the Court did not find a violation of the right to privacy, noting, among other things, that the applicant did not make attempts to de-index questionable content from search results.
On the grounds above, the Constitutional Court upheld the constitutionality of article 152(1).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands expression and was welcomed by Russian media lawyers. In its judgment, the Russian Constitutional Court protected freedom of expression and information, particularly in relation to information collected and published in the public interest. At the same time, the Court articulately outlined restrictions on journalistic freedom, so far as they relate to the right to private life. Lastly, the Court’s heavy reliance on the jurisprudence of the European Court of Human Rights is well appreciated, in light to Russia’s legislation that allows Russian courts to ignore the European Court’s judgments.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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