Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
Closed Mixed Outcome
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On June 28, 2022, the Third Chamber of the European Court of Human Rights (ECtHR) unanimously held that the compiling of files by the police in Catalonia on judges who had expressed views on that region’s independence from Spain infringed the judges’ right to privacy. The case concerned the compiling of files by the police in Catalonia on judges who participated in the authorship of a manifesto expressing that under the Constitution and international law, Catalan people should have a say on the region’s independence. Personal information and photographs were subsequently leaked to the press. Following a complaint by the applicants, the Investigating Judge no. 15 of Madrid and the Audiencia Provincial dismissed their claims because there were sufficient grounds for attributing the leak to a particular person. Concurrently, disciplinary proceedings were brought against the applicants for signing the manifesto by the General Council of the Judiciary; however, no sanctions were issued, and the proceedings were closed.
In its decision, the ECtHR found that since there was no legal provision authorizing the compiling of such reports, their mere existence contravened Article 8 of the Convention. Regarding the investigation into the leak, the Court found the national authorities had acted inadequately, particularly for failing to interview the Chief of Police of Barcelona, who was crucial to the investigation. Regarding the applicants’ allegation that their right to freedom of expression had been infringed, the Court held that no sanction or chilling effect could be determined from the fact that disciplinary proceedings had taken place.
In February 2014, the applicants, 20 serving judges, and magistrates who worked in Catalonia signed a manifesto where they set out their legal opinion in favor of the possibility of exercising the Catalan people’s so-called “right to decide” within the framework of the Spanish Constitution and international law.
On March 3, 2014, the national newspaper La Razón published an article entitled “The conspiracy of the thirty-three separatist judges”. The publication included photographs and personal details of the applicants taken from the police database.
The applicants lodged a complaint, which led to the initiation of criminal proceedings before the Barcelona Investigating Judge no. 22. Per Spanish law, their criminal complaint also implied a claim for compensation for damage. In their submission, the applicants argued that the events in question gave rise to several criminal offenses, including discovering and disclosing secrets, disloyalty when exercising custody of documents, and violating secrets by a public official. For reasons of territorial jurisdiction, the case was transferred to the Madrid Investigating Judge no. 15.
On September 8, 2014, the Madrid Investigating Judge no. 15 dismissed the complaint stating that the facts under investigation constituted a criminal offense, although there were insufficient grounds for attributing them to a particular person. Subsequently, the applicants appealed the decision, and on February 18, 2015, the Audiencia Provincial of Madrid admitted their appeal. By a decision of April 23, 2014, the Audiencia Provincial confirmed that the report referred to “thirty-four judges and magistrates who exercise their functions in Catalonia”, and included a photograph of each of them, their addresses, their job titles and, in some cases, observations on such matters as their membership of professional associations and their participation in professional courses” [para. 10].
On October 16, 2015, following the Audiencia Provincial’s decision, the Investigating Judge no. 15 of Madrid took witness statements from some officials, however, decided not to take an account from the Senior Chief of Police of Barcelona, which, “in the opinion of the Audiencia Provincial, would have been “relevant” to the investigation” [para. 11]. Consequently, the Judge decided to close the proceedings because it was impossible to identify the person responsible for the criminal acts in question. The applicants appealed against the decision.
The Audiencia Provincial, by a decision of April 21, 2016, dismissed the appeal, deeming that the available information did not allow the crime under investigation to be imputed to the persons whose statements had been taken. As a result, the applicants lodged an Amparo appeal against the Constitutional Court’s decision. Yet, on November 22, 2017, the recourse was declared inadmissible because the applicants had failed to justify its constitutional relevance.
Complaint with the Data Protection Agency
On April 11, 2014, the applicants lodged a complaint to the Data Protection Agency against the Ministry of Internal Affairs and the newspaper La Razón regarding the publication.
On December 21, 2018, after two Agency officials went to the general logistics sub-directorate of the National Police Directorate, where they drew up a written report on the leak of the applicants’ data, the investigation was formally closed. The applicants appealed against the decision to close the investigation; nevertheless, it was dismissed by the Director of the Agency. As a result, the applicants appealed with the Audiencia Nacional.
On May 30, 2018, Audiencia Nacional declared the challenged decision null and void and ordered a full investigation. On March 20, 2019, the applicants requested Audiencia Nacional to enforce its judgment of May 30, 2018.
On February 14, 2014, the Manos Limpias civil service trade union unsuccessfully lodged a complaint and December 22 22, 2014, appealed to the standing committee of the General Council of the Judiciary. However, on June 18, 2015, the General Council dismissed the appeal and upheld the view that the ideas put forward by the applicants in the manifesto constituted the exercise of their freedom of expression.
The main issues for the Third Section of the ECtHR to analyze in this case were two. On the one hand, whether the Police report on judges who signed a manifesto on the Catalan people’s “right to decide” and insufficient inquiry into data leak to the press violated Article 8 of the ECHR. On the other hand, whether the alleged reprisals against judges for signing a manifesto on the Catalan people’s “right to decide” interfered with their right to freedom of expression as established in Article 10 of the ECHR.
In their submission, the applicants argued that their rights to respect for private and family life, freedom of expression, and to a fair trial had been infringed. Relying on Articles 8, 10, and 6 of the ECHR, the applicants complained that the police file compiling information on them was unjustified. Additionally, they claimed that the latter investigation into the issue had been inadequate.
In turn, the government argued that the proceedings by the domestic judges did not violate the applicants’ private or family life. On the one hand, the Government claimed that by singing the manifesto, the judges had placed themselves voluntarily outside the sphere of protection of the right to private life. On the other hand, it argued that the domestic authorities had not infringed on the applicant’s right to private and family life since the failure to secure a conviction resulted from the impossibility of identifying the person responsible for the leak.
The Court began its assessment of the case by highlighting the negative and the positive obligations under Article 8 of the ECHR.
On the one hand, the Court noted that States’ negative obligation under Article 8 is to protect an individual’s private life against arbitrary interference by public authorities. The Court emphasized the Grand Chamber’s decision in the case of S. and Marper v. the United Kingdom [GC] that in determining whether the personal information retained by the authorities involves aspects of an individual’s private life, the context in which the information was obtained, the nature of the records, and the way the data is used and processed, must be regarded. Further, the Court noted that, as established in the case of Leander v. Sweden, storing information concerning the private life of individuals amounts to interference with the meaning of Article 8 [para.55]. Moreover, the Court recalled the decision in the case of Catt v. the United Kingdom to reiterate that data revealing political opinions constitute a special category of sensitive data which bears a heightened level of protection.
On the other hand, the Court noted that as held in the case of Khadija Ismayilova v. Azerbaijan, states’ obligations under Article 8 aim not only to safeguard individuals’ physical or moral integrity but may also extend to questions relating to the effectiveness of a criminal investigation. The Court referred to the case of Alković v. Montenegro to highlight that for an investigation to be regarded as effective; the national Court should be able to establish the facts and identify and punish those responsible.
The Court focused its analysis on the existence of a police report and the leak to the press and ensuing investigation.
Concerning the existence of a police report, the Court noted that the report, dated 18 February 2014, included personal data, photographs, and certain professional information of the Applicants. The Court found that since there was no domestic legal provision authorizing the compiling of such reports without some connection to a crime, the mere existence of the report amounted to an interference with the applicant’s private life.
Regarding the leak to the press and ensuing investigation, the Court stressed that the photographs of the applicants published in the newspaper came from the police database. Given the circumstances of the case, the Court stated that for an effective investigation to have been carried out, it would have been necessary that the investigative authorities obtain a statement from the the Senior Chief of Police of Barcelona, to whom the reports had been addressed and was responsible for the databases. Thus, the Court found that the “failure of the judicial bodies involved to carry out certain investigative measures which would most likely have been useful for the investigation into the facts of the case and which were susceptible of remedying the interference with the applicants’ rights must be considered to constitute a failure by the respondent State to comply with its positive obligations under Article 8 of the Convention” [para. 71].
The Court then analyzed whether the alleged reprisals for signing the manifesto the applicants claimed violated their right to freedom of expression as established in Article 10 of the ECHR. The Court recalled that as held in the Grand Chambers judgment in the case of Baka v. Hungary, to determine whether a measure against a judge during a disciplinary proceeding amounts to an interference with the exercise of the applicant’s freedom of expression, the scope of the measure must analyze in light of the context of the facts of the case in question and the relevant legislation. Moreover, the Court referred to the case of Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland to underscore that allegations that contest that a measure produced a “chilling effect” must clarify the specific situation in such an effect occurred to constitute interference for Article 10 of the Convention.
The Court found that, while a civil service trade union had brought disciplinary proceedings against the applicants for signing the manifesto, their complaint that their right to freedom of expression had been violated should be rejected. The Court gave two reasons. First, it noted that national authorities had found that applicants had signed the manifesto in the legitimate exercise of their freedom, and thus no sanctions were imposed to their detriment. Second, since the applicants had continued their professional careers and had been promoted under usual procedures, the Court found no evidence that they had suffered reprisals for signing the manifesto.
Based on its findings under Article 8 of the ECHR, the Court, regarding the investigation, considering that it was not necessary to examine the complaints under Article 6 § 1.
Finally, the Court held that in light of Article 41 of the ECHR, Spain was to pay the applicant 4,200 euros (EUR) for the non-pecuniary damage and EUR 3,993 for the costs and expenses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By finding the State responsible for the mere existence of the police report that compiled files on judges who had expressed their views on that region’s independence, the ECtHR indirectly protected the applicants’ right to freedom of expression from intromissions from the State. While the Court recognized that the national judicial institutions had declared unfounded the claim against the applicants for publishing the manifesto under the right to freedom of expression, it determined that there had been no chilling effect that could be discerned from the mere fact that disciplinary proceedings had taken place. Thus, the Court contracted expression by failing to consider the long-term implications for the applicants’ effective exercise of their right to freedom of expression in light of the dissemination of the personal information and subsequent proceedings against them.
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