Content Regulation / Censorship, Press Freedom, Privacy, Data Protection and Retention
AMM v. News Group Newspapers
Closed Mixed Outcome
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The Fourth Section of the European Court of Human Rights (ECtHR) held that the state of Romania breached the right to privacy of the applicant when its domestic courts argued that a company was not civilly liable for broadcasting on television an interview of the applicant, then aged eleven, without the consent of her parents. Higher domestic courts in Romania considered that the company’s freedom of expression outweighed the minor’s right to privacy, especially since the broadcast reported on matters of public interest. The ECtHR considered that national courts failed to correctly balance the aforementioned rights. For this Tribunal, the young age and lack of notoriety of the applicant, compounded by the little contribution that her interview was likely to bring to a debate of public interest —regarding an event she didn’t witness—, the absence of parental consent, and the particular interest in the protection of the private life of minors, were sufficiently strong reasons for the ECtHR to consider that Romania had breached Article 8 of the European Convention on Human Rights (ECHR).
On October 22, 2012, a private Romanian channel sent reporters to a public school in Bucharest “to cover a recent tragic event, namely the death of a pupil during a school trip on which the school pupils were accompanied by school staff” [para. 5]. A reporter interviewed I.V.Ț (the applicant), who was eleven at the time and was interviewed in the absence of her parents and without prior parental consent. I.V.Ț “was not among the pupils who attended the above mentioned school trip” [para. 6].
In the interview, the applicant said “that she believed that no schoolteacher had been near the victim when the tragic event had occurred [and that] it would be better to care more for pupils and to make them secure” [para. 8].
That very same day, the television channel aired a report “in which extracts from the interview recorded with the applicant were broadcast” [para. 9]. The applicant alleged that, following the report, she was recognized by teachers and schoolmates and “suffered from their showing a hostile attitude towards her” [para. 10].
On February 14, 2013, the applicant brought civil proceedings “for compensation in respect of non-pecuniary damage against the private company X, which held the licence for the television channel that had broadcast the interview conducted with her on 22 October 2012 without prior parental consent” [para. 11]. She based her claim on provisions of the Civil Code about the right to one’s own image and on “Decision no. 220/2011 of the National Audiovisual Council (Consiliul Naţional al Audiovizualului, hereafter the “NAC”) relating to the requirement of prior written parental consent for the participation of minor children, aged under fourteen, in television programmes” [para. 11].
On December 10, 2013, the Ploiești District Court ordered private company X “to pay the applicant 200,000 Romanian lei in respect of non-pecuniary damage” [para. 12]. For this court “whether or not the applicant’s face had been blurred out when her interview had been broadcast on television, which was an issue that was in dispute between the parties, the applicant was easily recognisable on the video recording made available to the court by company X” [para. 12]. This, according to the District Court, breached relevant provisions regarding the protection of children’s privacy and “caused non-pecuniary damage to the applicant in so far as she had suffered severe emotional distress and anguish” [para. 12].
Company X appealed the decision before the Prahova County Court, alleging its right to freedom of expression on matters of public interest. On September 23, 2014, this tribunal granted the company’s appeal “and dismissed the civil action brought by the applicant” [para. 14]. Although the County Court acknowledged there was no parental consent for conducting or broadcasting an interview with the applicant, the journalistic freedom of the company when reporting on a subject of public interest excluded it from liability for “the non-pecuniary damage caused to the applicant by the unlawful conduct of the schoolteachers, and in particular of the director of the school who had summoned the applicant and her mother to make a written statement that she would not give any further interviews to the media” [para. 14].
The applicant lodged an appeal against the Prahova County Court’s decision, arguing that her rights to respect, dignity, privacy, and own image had not been protected “despite Article 10 of the Convention allowing for limitations on freedom of expression for the protection of the rights of others, and in particular of minor children” [para. 15].
On January 29, 2015, “the Ploiești Court of Appeal dismissed the applicant’s appeal” [para. 16]. For this Tribunal, the decision issued by the County Court correctly assessed “that the interview concerned an issue of justified public concern, its scope being to show the deficiencies in the organisation of a school trip” [para. 18]. The Ploiești Court of Appeal stated that company X “had not committed an unlawful act” and “that the negative effects suffered by the applicant after the interview were not direct consequences of it, but were a consequence of the non-professionalism of the teachers ‘who tried in fact to cover the facts’” [para. 21]
On July 9, 2015, I.V.Ț lodged an application, before the ECtHR, against Romania. The applicant considered that “national authorities had failed to protect her right to respect for her private life and in particular the right to respect for her image as provided in Article 8 of the Convention” [para. 32].
The European Court of Human Rights analyzed “whether the domestic courts ensured a fair balance between the protection of the applicant’s private life and the right of the opposing party to freedom of expression” [para. 49], in a case where the applicant was interviewed for a television report, without her parent’s consent when she was eleven years old.
The applicant argued that the Romanian courts did not protect her private life “and her right to her image following her exposure on a private television channel” [para. 41].
For its part, the Government of Romania argued that the “right to respect for private life had to be seen in the larger context of the freedom of public expression regarding facts of public interest” [para. 42]. The Government noted that the reporter didn’t ask the applicant questions about her private life, rather the subject of their report was “an issue of public interest, so finding out the truth in this respect was justified” [para. 42]. The defendant also argued that the negative consequences for the applicant were caused by the unprofessional behavior of her teachers and not a direct consequence of the interview, to the point where “it was plausible that the consequences would have been similar even if the parents’ consent for the interview had been given” [para. 43].
The Court began its argumentation by highlighting that Article 8 of the European Convention on Human Rights does not merely compel the state to abstain from arbitrarily interfering in the private life of individuals. This provision also imposes positive obligations “inherent in effective respect for private and family life” [para. 45]. Following the precedent laid out in the case M.G.C. v. Romania, the ECtHR considered that the State’s positive obligations under Article 8 must “take into account the particular vulnerability of young persons” [para. 46], such as minor children.
The ECtHR then proceeded to analyze whether in the present case national courts managed to strike a fair balance between the applicant’s right to the protection of her private life under Article 8 of the Convention and the private broadcasting company and journalists’ right to impart information as guaranteed by Article 10. For that, the Court referred to the criteria set in its own case law, in decisions such as Axel Springer AG v. Germany or Dupate v. Latvia. According to these cases, when balancing the right to a private life against freedom of expressions, it is important to consider factors such as: the “contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which images were taken” [para. 47].
Upon analyzing the subject of the news report published by the company X and its contribution to a debate of public interest, the ECtHR highlighted that the Ploiești Court of Appeal took into consideration that the company’s report “concerned a subject of public concern, namely deficiencies by the school attended by the applicant in organising a school trip” [para. 51].
Subsequently, the Tribunal examined the notoriety of the applicant and her prior conduct. In doing so, the ECtHR held that the “applicant, an eleven-year-old pupil at the time of the interview, was not a public or newsworthy figure” [para. 52]. Additionally, the Court underscored the fact that, since the right to the protection of the applicant’s image was overseen by her parents, “the prior consent of the applicant’s parents to the broadcast of the interview was an important element in the assessment of the case” [para. 52], as established by Reklos and Davourlis v. Greece.
Lastly, the Court analyzed the circumstances in which the images were taken and the content, form, and consequences of broadcasting the news report including the interview. The Court reiterated the fact that “the applicant’s parents or legal representative did not at any time give their consent to the broadcast of the interview” [para. 53]. In light of this, the ECtHR considered that national courts “failed to give due consideration to the obligations imposed by Article 8 to protect the applicant’s private life, given also her vulnerability as a child” [para. 53]. The Tribunal criticized the argument by which the behavior of the teachers and students at the school would have been the same even if the applicant’s parents had consented to the interview. For the Court this position sees parental consent as a mere formal requirement, rather than a safeguard that would have allowed the applicant’s mother, had she been aware of the interview, “the possibility to oppose it” [para. 54].
The ECtHR also noted that, regardless of whether the applicant’s face had been blurred out in the broadcast of the television report, an issue of dispute between the parties, the fact was that “the applicant was easily recognisable on the video recording […] and she was effectively recognised by her schoolmates and teachers, if only by her voice, which had not been distorted in any way in order to protect her image and privacy” [para. 55]. For the Court, none of the superior national courts that studied the case “thoroughly examined the steps that the defendant undertook to protect the identity of the applicant” [para. 55].
The Tribunal considered that —following MGN Limited v. the United Kingdom and Alkaya v. Turkey— even when news reports contribute to public debate, the disclosure of private information, such as the identity of a minor, has to be justified. In the case at hand, these considerations were especially compelling for the Court, which “expressed doubts as to the contribution to a debate of public interest of the exposure of the opinions of the applicant, a child who did not witness the event in question” [para. 56].
The Court also noted that the higher domestic courts failed to duly examine the compliance of company X to the domestic regulatory framework, which provides that “the right of the minor to his or her private life and private image prevails over the need for information, especially in the case of a minor in a difficult position” (Article 3 § 3 of NAC Decision no. 220/2011) [para. 57]. The ECtHR also considered that “the broadcast had serious repercussions on the applicant’s well-being and private life” [para. 60] since she suffered from anguish and distress after the publication of the interview.
For the Court, the higher domestic courts of Romania failed to correctly balance the competing rights to privacy and freedom of expression. The young age and lack of notoriety of the applicant, compounded by the little contribution that her interview “was likely to bring to a debate of public interest” [para. 62], the absence of parental consent, and the particular interest in the protection of the private life of minors, were sufficiently strong reasons for the ECtHR to consider that the state of Romania failed to comply with its “positive obligations to protect the applicant’s right to respect for her private life” [para. 62]. Thus, the Court considered that Romania violated Article 8 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although this decision limits freedom of expression, it does so after carefully balancing the right to privacy of minors and the freedom to report on matters of public interest of media companies. The restrictions outlined in this judgment closely follow previous case law by the ECtHR regarding the valid limits of freedom of expression when in tension with the rights of others, especially privacy, and in this case the privacy of minors.
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