Case Summary and Outcome

The Hungarian Curia, the Supreme Court of Appeal, held that the use of images and videos from a political party leader’s wedding was not a disproportionate infringement of the right to privacy. A news outlet had published an image of the political leader’s wife doing the Nazi salute and a video of a speech involving homophobic and racist jokes at the wedding. The Court of First Instance awarded the couple damages for an infringement of privacy but this was overturned on appeal. The Curia emphasized the fundamental right to freedom of expression and of the press, and noted that the image and video had not been taken in a specifically intimate setting and had been taken by a third party commissioned by the couple to photograph the wedding. The Curia accepted that the leader’s wife was not a public figure herself, but found that the matter was nevertheless relevant to public debate.

Facts

On 20 January 2019, an online news portal in Hungary published images and footage of the president of the Jobbik political party’s 2016 wedding, wedding party and the related preparations. The news portal also uploaded an article on its website, titled, “The wife of the President of Jobbik posed with a Nazi salute at her wedding photo shoot”, and, published video footage on its news programmes and broadcast them on its television channel. The images show the wife posing with a Nazi salute for a photographer who was commissioned for the event, and later homophobic and racist jokes were made in the footage of the wedding party. Jobbik is a radical right-wing party, known for its radical views.

The leader and his wife argued that the wedding ceremony and the wedding party were not public affairs and that the images and video footage made were not part of their public activities, as they captured the most intimate moments of their lives. They wished to share the most private events only with their invited guests and did not give their consent to their disclosure to the public at large. They felt that by publishing these moments of their private life on the Internet and on television, the news outlet violated Section 8(2) of Act LIII of 2018 on the Protection of Privacy, according to which “[the] right to privacy may be violated by the abuse of personal data, secrets, images, audio recordings which the individual wishes to retain and preserve in particular in connection with their private life, or by the violation of honour and reputation.”

The Metropolitan Court of Budapest acting at first instance found that the news outlet had violated the couple’s right to privacy by publishing the images and footage of their wedding and wedding preparations. The Court ordered the news outlet to provide the couple with an apology for the infringement in the form of a private letter within 15 days, and also gave the couple the right to make the letter public. The news outlet was ordered to pay aggravated damages (compensation for injury to feelings) of 500,000 HUF (Hungarian forints) per person to the couple. The Court found that the wife was not a public figure, and that although the husband was a public figure, since his wedding was not related to his public role, he did not have a duty of higher tolerance in this regard. The Court held that, even for public figures, it was absolutely necessary to ensure the protection of privacy, private life, private home, private conversations and private correspondence, home and family: the wedding was an absolutely protected event in the private sphere of the spouses, into which the news outlet had unlawfully intruded. The Court concluded, having balanced the respect for privacy and freedom of expression and of the press, that the news outlet had infringed the couple’s right to privacy by disclosing the image without their consent.

The news outlet appealed to the Budapest Court of Appeal, which reversed the judgment of the lower court and dismissed the action in its entirety. The Court of Appeal held that the exercise of the right to privacy cannot constitute an abuse of rights, nor can it be used to claim protection for conduct not protected by law. It added that the foundations of the legal system would be called into question if conduct that is prohibited or condemned by law on the basis of these principles of interpretation were nevertheless protected by a specific provision of substantive law. The Court of Appeal considered that the level of protection provided by the Act to privacy must be assessed differently between the four walls of the home – in which case the need to protect the private sphere and the need to prevent external intrusion cannot be called into question – and at an event at an external venue. The Court of Appeal emphasized that if an act does not fall within the scope of the freedom to exercise a fundamental right, that expression is not covered by the constitutional protection of the fundamental right. Therefore, the act performed by the wife, as interpreted by the news outlet, did not fall within the scope of the protection of privacy even performed by someone in a family or friendly circle and tolerated by the law within the limits of privacy.

The couple brought a petition for review of the final judgment before the Curia, asking the Curia to repeal the final judgment and uphold the judgment of the court of first instance.

Decision Overview

The central issue for the Curia’s determination was whether the couple’s right to privacy had been infringed.

The Curia examined the couple’s claim that Hungary’s Fundamental Law clearly identifies the protection of privacy as the primary fundamental right to be protected. In relation to the level of protection of fundamental rights, the Curia stated that, on the one hand, events in the private and family sphere do not always fall under the protection of Article VI(1) of the Fundamental Law, and on the other hand, “when assessing the conflict between the right to privacy and other rights protected at the same level, in particular freedom of expression (…), the courts must balance the exercise of two rights protected at the same level, bearing in mind the necessity and proportionality of the restriction” (statement of reasons, paragraph [31]). The Court held that the couple’s argument was unfounded.

In respect of the public interest in the information, the Curia found that the article was intended to show that the leadership of the political party, contrary to its public communication, promoted extremist, national socialist ideas. The published article, as well as the images and footage in the television news summaries, presented both the wife’s Nazi salute and the homophobic and racist remarks made at the wedding party, which were intended as a joke by the participants. The Curia found that none of the images and footage presented in connection with the wedding, the preparations leading up to the wedding and the wedding party could be considered arbitrary, as all of it was closely related to the substance of the news report, which was a matter of public interest. According to the “Guidelines of the Constitutional Court, public debate does not only mean political debate in the narrow sense, but also the discussion of all issues of social importance. The mere interest of information (the public’s curiosity) would not provide a basis for restricting Articles II and VI of the Fundamental Law, but ensuring the possibility of democratic debate would {Constitutional Court decision No. 26/2019 (VII. 23.), statement of reasons, paragraphs [27], [29]}”.

The Curia reviewed the European Court of Human Rights’s jurisprudence on the balancing of freedom of expression and the right to privacy, including the Court’s approach to the use of images without consent. In this respect, the Curia stated that in determining whether there is an infringement, the following must be taken into account: the contribution of the communication to the public debate; how well-known the person concerned is; the subject of the press communication; the previous conduct of the person concerned; the circumstances in which the image was taken; and the content, form and consequences of the communication. Among the elements to be examined is whether a substantive link can be established between the article and the image presented, and whether the content of the article is related to the image. The Court referred to the case of Karhuvaara and Iltalehti v. Finland which also considered whether a news report on the conviction of a politician’s spouse as a matter of public interest.

Based on domestic and international jurisprudence, the Curia determined whether “the protection of privacy, including family life, was fairly balanced against the importance and news value of the matter of public interest, or whether the news in question had an independent information value that would promote public debate. It must also be taken into account that the public’s curiosity or hunger for gossip alone does not establish the public interest nature of a matter [statement of reasons [58]”.

Although the images and footage included in the news report were not taken at a public event, they did not show events in an intimate family setting, in complete exclusion of the outside world. Regarding the way and circumstances in which the recordings were made, it was also established that the recordings were planned in advance and commissioned by the couple as they had commissioned a third party not party to the case to make the recordings. On the basis of the criteria outlined above, the Curia considered that “the image (about the [couple’s] wedding and wedding party) accompanying the communication covering a matter of public debate is merely the scene of the event justifying the subject of the communication. The [news outlet] substantiates its report by showing what happened there, which cannot be credibly shown in any other way, merely descriptively” (statement of reasons, paragraph [39]).

With regard to the question of the public figure status of the wife, the Curia stated that the mere fact of being a close relative to a public figure (in this case a politician, party leader, member of parliament) does not in itself establish public figure status, and “a relative of a public figure (and his or her relative) may only be subject to a duty of higher tolerance of expression on the basis of their personal involvement in the public affair concerned” (statement of reasons, paragraph [39]). However, in the present case, this circumstance was established, the wife’s extremist worldview, conveyed by her gesture imitating a Nazi salute, formed the central element of the news report, and thus, according to the Curia, she was presented as an “ad hoc public figure” in the present case.

The Curia assessed the wife’s conduct, in which it confirmed the Court of Appeal’s interpretation that “the interpretation of the law cannot make the glorification of any totalitarian [in this case: national socialist] regime acceptable conduct [Constitutional Court decision No. 4/2013 (II. 21.), Constitutional Court decision No. 16/2013 (VI. 20.)]”.

Accordingly, the Curia found that the presentation of the images in the article without the consent of the couple did not result in a disproportionate infringement of their right to privacy as opposed to the exercise of the fundamental rights to freedom of expression and of the press, which guarantee the free discussion of public affairs, and therefore upheld the final judgment.