Case Summary and Outcome

The European Court of Human Rights unanimously held that Azerbaijan violated the right to private life and reputation of the renowned investigative journalist Khadija Ismayilova. The case concerned the refusal by the domestic courts in Azerbaijan to sanction a newspaper for an article discussing the private and sexual life of the applicant. The article had been published eight months after the secret filming and distribution of a video of a sexual nature featuring Ismayilova. The Court found that there was no legitimate public interest in exploiting an existing breach of a person’s privacy for the purpose of “satisfying the prurient curiosity of a certain readership.” Moreover, the Court reasoned that the domestic courts failed to balance the competing privacy interests of Ismayilova with the expression interests of the respondent newspaper. 

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Facts

The applicant in this case, Ms Khadija Rovshan qizi Ismayilova, is an Azerbaijani national who has operated as an investigative journalist since 2005. She has worked for the Azerbaijani service of Radio Free Europe/ Radio Liberty (”Azadliq Radio”), as a staff reporter and director. Her reporting has often been critical of the government, addressing subjects including corruption and human rights violations. She also worked as a regional coordinator for the Organised Crime and Corruption Reporting Project, training journalists in investigative techniques. Between 2010 and 2012, the applicant published and contributed to a series of articles concerning high-level corruption which led to threats against her by officials and intimidation by pro-government media. On 7 March 2012, she received an anonymous letter threatening to publish an intimate video that had been filmed with a hidden camera featuring the applicant and a man who, according to her, was her then boyfriend. A criminal investigation was subsequently launched, which was ultimately ineffective.

On 6 November 2012, while the criminal investigation into the invasion of the applicant’s private life was ongoing, the newspaper Səs published the article: “A historical house of MPs” (“Tarixi deputatxana”). Səs is a “socio-political newspaper” founded in 1990 and in circulation from 1991. The newspaper states on its website that: “Səs has played the role of the party base for the New Azerbaijan Party and, after the party’s establishment, has continued its activity as its media trumpet.” [para. 13] The article questioned why pro-opposition journalists were criticising members of the National Assembly and criticised the moral-standing of members of the opposition. The author continued by criticising a recent opposition journalist’s article about the former Italian pornographic actress, Cicciolina, who had been elected as a member of the Italian Parliament. The author then wondered whether the opposition would recommend that the Azerbaijani Parliament should also include a pornographic actress. In reference to Khadija Ismayilova, the author commented: “If opposition newspapers’ pen-pushing blabbermouths have such cheap and narrow thoughts, let them make room for Khadija Ismayilova in their Public Chamber1 and name her the Public Chamber’s Pornstar Cicciolina!” [para. 17]

On 27 December 2012 the applicant brought a civil complaint against the Səs newspaper on the grounds of Articles 32 and 46 of the Constitution, Article 8 of the Convention, Article 23 of the Civil Code, Article 10 of the Law on Mass Media and the Constitutional Court’s decision of 31 May 2002. [para. 18] Ismayilova claimed that the article was insulting and damaging to her reputation, her right to respect for her private and family life, and her right to freedom of expression. She also argued that the article of 6 November 2012 was part of a wider campaign against her by the pro-government media in response to her journalistic activity by “lowering her in the eyes of society.” [para. 18] She requested the court to order the newspaper to publish an apology and sought 50,000 Azerbaijani manats (AZN) as compensation for distress, approximately 27,000 euros (EUR). 

The respondent newspaper, Səs, argued that the applicant should have sued the publisher of the intimate video, rather than the newspaper, which had a duty to inform their readers about “social, political and other events of public interest.” [para. 19] The respondent argued that her public image as a woman of “the highest manifestation of our national and moral values” was contrary to the fact that she had a sexual relationship outside of marriage with “some person.” [para. 19] 

On 13 February 2013, the Sabail District Court dismissed the applicant’s claim on the basis that the article published is “a manifestation of the freedom of thought and expression and of the journalist’s independent opinion.” [para. 20] The district court reasoned that, to hold the article to be degrading the applicant’s honour and dignity would be “construed as forcing a person to think differently and contrary to his will.” [para. 20] Further, the applicant had not successfully proven that she had endured physical and mental suffering. The applicant appealed this decision to the Baku Court of Appeal, which, by a judgment of 13 June 2013, upheld the reasoning of the District Court. On 23 October 2013, the Supreme Court also dismissed an appeal by the applicant, finding that the Court of Appeal had accurately followed the substantive and procedural rule of law. Having exhausted all domestic appeals, Ismayilova appealed the case to the European Court of Human Rights. 

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Decision Overview

Ismayilova brought the complaint alleging that her rights under Articles 6 (right to a fair trial), 8 (right to respect for private life) and Article 10 (freedom of expression) had been violated by the refusal of the domestic court to sanction Səs newspaper for an article commenting on her private and sexual life. 

1. Alleged Violation of Article 8 of the Convention

The Court first set out the previous Khadija Ismayilova judgment (Applications nos. 65286/13 and 57270/14) of January 10, 2019, in which the applicant complained to the European Court of Human Rights under Article 8 regarding the threatening letter she received, the intrusion into her home by the installation of hidden video cameras, the filming and publication of an intimate video, and newspaper articles which widely publicised the matter. The case concerned the failure of the respondent State to comply with their positive obligation under Article 8 to protect the privacy of the applicant. The Court did not further examine Ismayilova’s arguments concerning the “smear campaign” in the media in the context of Article 8 in this case. Nor was the article of the 6 November 2012 specifically referred to in this case. The Court recognised that this previous decision must be taken into account by the Court as both cases concern the same general factual background. However, the two cases were subject to different legal issues. The case before the Court in this instance was regarding an article published after the first invasion of privacy had occurred, which she claims overstepped the permissible boundaries of journalistic freedom of expression in discussing the applicant’s private life. The case also concerned whether the domestic courts had appropriately balanced the applicant’s Article 8 rights with the newspaper’s Article 10 rights in dismissing her case. 

The Court then determined whether or not the Article 8 violation was admissible. The Court cited a range of ECtHR case law to set out the nature and application of the right to privacy. The concept of “private life” was noted to have a broad definition, covering the physical and psychological integrity of a person, including their sexual life (citing Khadija Ismayilova v. Azerbaijan). [para. 36] This also includes the right to live privately, “away from unwanted attention” (Smirnova v. Russia). [para. 36] Referencing Von Hannover v. Germany (no. 2), the Court noted that the publication of a private photo or video recording may intrude on the private life of an applicant. However, to amount to an infringement of Article 8, the matter must be serious enough to cause prejudice to “personal enjoyment of the right to respect for private life.” (Axel Springer AG v. Germany [GC]) [para. 39] This enjoyment includes both an individual’s social reputation and their professional reputation in particular (Denisov v. Ukraine [GC] § 112).

Applying these principles to the present case, the Court held that it was undisputed that the 6 November 2012 article sought to “slur the applicant’s private and indeed her sexual life.” [para. 41] While there were no express references to the video secretly recorded of the applicant, the context and the “respondent newspaper’s submissions before the domestic courts” [para. 41] make it clear that the article stemmed from the intimate video. As such, the article was discussing an existing breach of the applicant’s privacy that was then subject to ongoing criminal investigation and later came before the ECtHR in Khadija Ismayilova. The Court referenced the article’s likening of the applicant to a porn star and mocking suggestions that pro-opposition journalists should have or already had sexual relations with her, providing hypothetical newspaper headlines on the subject. The Court concluded that Article 8 is applicable on the basis that the article caused her serious moral distress and harm to her personal relationship and public reputation. 

The Court went on to consider the parties’ submissions. Ismayilova argued that her private life had been invaded by secretly filming and disseminating the intimate video, as well as a smear campaign by the pro-government media. According to her, this was because of her research as a journalist into high-level corruption. Ismayilova claimed that Səs is a newspaper openly controlled by the ruling party and that the 6 November article related to her private life, rather than her activities as a public person. She also noted that the “statements made in the article exceeded any limits of acceptable criticism and were exclusively aimed at ridiculing her private life, making her intimate life a subject of public discussion and portraying her as someone having the lifestyle of a porn star or a prostitute.” [para. 48] Ismayilova argued that, in a country with an “Eastern mentality” like Azerbaijan, reputational damage of this sort to a woman could result in stigmatisation by society and her own family, as well as potential physical harm. Finally, the applicant submitted that the respondent State was under an obligation to protect her personal information from publications that go beyond acceptable criticism and that the domestic courts had not sufficiently considered her claim. 

The Government responded that the 6 November article reflected the views of the author about the applicant regarding information that was already available to the public eight months prior. This information had also not been brought to light by the author, nor was it illegally obtained. The author maintained that the applicant’s actions were against the moral standards of the country and were a bad example to the youth. The government also disputed Ismayilova’s submissions that the domestic courts had insufficiently balanced the right of the newspaper to free expression against her right to privacy. They also noted that the applicant in this case was a public figure; as such attention by the media was not a smear campaign, but to be expected. 

In the Court’s assessment, it first set out the general principles of the case, referencing a range of their past case law. The Court identified the three criteria, cited in Von Hannover (No 2), for balancing the right to freedom of expression and respect for private life: whether the speech contributes to a debate of public interest, whether the prior conduct of the person was well known, the content, form and context of which photographs are taken, and the veracity of information obtained. The Court noted that the state has a positive obligation that is inherent to the right to respect for private or family life that may require adopting specific measures to protect this right. Regarding free expression, the Court noted that Article 10(2) includes both information and ideas that have the capacity to offend, shock or disturb. The Court also held that there is a “fundamental distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life.” (Armonienė v. Lithuania) [para. 58] While the press deserves a narrow construction of free expression due to their important societal role, there are “different considerations” for reporting that is “lurid”, designed to “titillate and entertain.” This reporting “does not attract the robust protection of Article 10 afforded to the press.” (Von Hannover v. Germany) [para. 58] Therefore, although information relating to the private life of public figures is offered a degree of protection under Article 10, this protection “may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination.” (Couderc and Hachette Filipacchi Associés v. France) [para. 60] Finally, the Court noted that it would require strong reasons to substitute the view of the national authorities with a decision by the Court. (Von Hannover (no. 2) [para. 64]

Applying these principles to the present case, the Court noted that the article was a “short piece of writing the apparent main purpose of which was to attack several opposition-oriented journalists because of their critical stance toward the members of the ruling party in Parliament.” [para. 68] Furthermore, the section of the article relating to Ismayilova only discussed her private life, rather than her work or public activities. While not expressly referenced in the article, it was clearly written in reference to the secret recording and dissemination of the secretly filmed video. The Court held that this matter could not have contributed to any legitimate public interest. Even though her privacy had already been breached once the video was in the public domain, ethical journalism did not allow for the exploitation of an existing breach of privacy “for the purpose of satisfying the prurient curiosity of certain readership, publicly ridiculing the victim and causing them further harm.” [para. 71] In response to the Government’s argument that the applicant was a public figure who should expect comment from the media, the Court reiterated that even a figure known to the public has a “legitimate expectation” of respect for their private life. Additionally, it was of note that Ismayilova had never herself sought out public exposure of her private life. Regarding the content, form and consequences of the publication, the Court noted that Səs newspaper was not a satirical publication and was therefore expected to have a “significant degree of seriousness.” 

The Court then considered the manner in which the case was handled at the domestic level. The domestic courts had concluded that the article was a manifestation of the author’s freedom of expression, that determining these statements to be “degrading to the applicant’s honour and dignity” would amount to an undue restriction on the author’s right to expression, and that the applicant had not successfully demonstrated sufficient physical or mental suffering following the publication of the article. [para. 76] The Court assessed that the brief reasoning provided by the courts was not compliant with the principles of the Convention, nor do they demonstrate that the courts duly examined whether the statements made about Ismayilova were in line with ethical journalism. Therefore, the Court determined that there had not been a sufficient balancing exercise conducted by the domestic courts between the applicant’s right to privacy and the newspaper’s right to freedom of expression. 

The Court held that the respondent State did not fulfil their positive obligation to take adequate measures to protect the applicant’s right to respect for her private life and reputation. Accordingly, there had been a violation of Article 8 of the Convention. 

2. Other Alleged Violations of the Convention

Article 6 § 1 of the Convention

Ismayilova complained that the domestic courts had breached her right to a fair hearing under Article 6 § 1 of the Convention by not sufficiently addressing the arguments she had raised. The Court held that, as the complaint was linked to Article 8, it was admissible. However, having already found for an Article 8 claim, the Court did not consider it to be necessary to examine this case. 

Article 10 of the Convention

Ismayilova also complained under Article 10 of the Convention that the article had infringed her right to freedom of expression by attacking her journalistic activity. She submitted that the article was part of a broad campaign of attacks against her, including the invasion of her privacy. The Court referenced their findings under Article 10 in Khadija Ismayilova, as well as the findings under Article 8 in the present case, concluding that it was unnecessary to examine the admissibility and merits of a further Article 10 complaint.  

3. Application of Article 41 of the Convention

The Court finally considered Article 41 of the Convention to determine the “just satisfaction to the injured party.” [para. 88] 

Regarding damages, Ismayilova claimed EUR 50,000 of non-pecuniary damage. The Government responded that the quantity of damages was unwarranted and the finding of a violation by the Court would be sufficient. The Court did not consider the finding of a violation to be submissive and awarded Ismayilova EUR 4,500 in respect of non-pecuniary damage.

Ismayilova also claimed EUR 8,923.37 for the costs and expenses of legal fees incurred before the domestic courts and the ECtHR. This claim was contested by the Government on the grounds that it lacked the necessary information, including her lawyers’ bank account details and tax identification numbers. They also claimed that the amounts were excessive, converted into euros at the incorrect dates. Rather, the Government submitted that it would be reasonable to award AZN 2,500, approximately EUR 1,300. The Court noted that an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these were actually and necessarily incurred and are reasonable in quantity. The Court considered it reasonable to award a total of EUR 1,500 covering costs and expenses. 

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