EHRM, 19-12-2006, nr. 62202/00

At the relevant time the applicant company broadcast on five frequencies in Slovakia and had a daily audience of more than 400,000 listeners. Its broadcasts have been based on the principles of democracy and independence.

At the relevant time Slovenská poisťovňa, a.s. (‘SP) was a major insurance company in Slovakia. It was controlled by the State through the National Privatisation Agency (Fond národného majetku — ‘FNM’).

Following the parliamentary elections held in 1994 the management of SP was nominated by a political agreement among the coalition parties then in power. The coalition included the Movement for Democratic Slovakia (Hnutie za demokratické Slovensko — ‘HZDS’) and the Slovak National Party (Slovenská národná strana — ‘SNS’).

At that time the nominees of HZDS had a majority in the bodies of the FNM.

On 1 June 1996 the supervisory board of SP removed the persons nominated by SNS from the company's board of directors and appointed a new management. The outgoing management did not accept the removal.

On 3 June 1996 the former management took over the headquarters of SP. They were assisted by private security guards and a squad of the State police which had been assigned to the task by the president of the Slovak Police Corps, a nominee of SNS. They forced the newly appointed management to leave the premises but a few days later the new management, assisted by their own private security service, regained control over the company and its premises.

The background of that struggle related to the wish of those involved to participate in the privatisation of SP. The revocation of the SNS-nominated management caused a serious political crisis in the government.

At the relevant time Mr K. was the Deputy Prime Minister and the Minister of Finance and Mr D. was State Secretary at the Ministry of Justice. The posts of State Secretaries within Ministries were filled through appointments by political parties. Such posts were therefore political posts and did not form part of the civil service.

After the events complained of Mr D. was elected a judge of the Constitutional Court.

On 12 June 1996 at 6 p.m., the applicant company broadcast, in the news programme ‘Journal’, the recording of a telephone conversation between Mr K. and Mr D.

The broadcast started with a commentary by the applicant company's commentator. In it the names of the persons involved were mentioned in full and it read as follows:

Immediately thereafter the recorded conversation of Mr K. and Mr D. was played. The transcript of its broadcast reads as follows:

Mr K: ‘… the police, with the assistance of the policemen [and] some other security guards have entered and seized the building, they have emptied the building …’

Mr D: ‘But this is peculiar, the involvement of the policemen, what could have been the grounds for their action …’

Mr K: ‘Certainly, this was the failure of the security guards, the ones that were there at the moment, but this was the layman's approach maybe because … The policemen were rather hard as it seems according to all circumstances. You know, the police raid was probably organised through [Mr H.], you know the Slovak National Party. Well then, this was all I wanted to say, that there is that …’

Mr D: ‘Will you be chairing the meeting?’

Mr K: ‘Yes, but the boss will arrive to speak on two items on the agenda.’

Mr D: ‘I see. Otherwise, I have been charged with this task, because he is leaving for Banská Bystrica.’

Mr K: ‘Good, it is clear, all I wanted to say …’

Mr D: ‘Nobody is going to interfere with my business …’

Mr K: ‘Well, of course not.’

Mr D: ‘As he does not yet even know what I am doing …’

Mr K: ‘[the first name of Mr D. was mentioned], it would be therefore most important …’

Mr D: ‘I shall go and personally inspect it in the morning, before the meeting starts …’

Mr K: ‘I would like to ask you to do it, as it will emphasise the fact that they have done it …’

Mr D: ‘It is clear.’

Mr K: ‘I had a phone call from there just half an hour ago …’

Mr D: ‘Very good, I also need to know this in order to speak about it there.’

Mr K: ‘That will be extremely important.’

Mr D: ‘All right then, right in the morning I shall submit the report about how things are going …’

Mr K: ‘Otherwise, you have to turn to me, this lady I have arranged, simply speaking, it is all organised by me, hence …’

Mr D: ‘Yes, yes.’

Mr K: ‘Even if I am not present, I shall later go directly to the Government session, but through this [Mrs M.], they know for sure, actually they are well oriented on the subject …’

Mr D: ‘I have got my instructions.’

Mr K: ‘It is clear, these instructions apply.’

Mr D: ‘Well then, see you.’

Mr K: ‘[The first name of Mr D.], thank you very much, see you … bye …’

The subsequent commentary of the journalist, in which full names of those involved were again mentioned, went as follows:

Mr K: ‘Look, I do not comment on things that are contrary to democracy. I think that journalists should perhaps choose a different approach since governmental officials have been tapped. So I will not comment on something that has been published without my consent. Undoubtedly, this information is about the fact that there has been certain pressure … in Slovenská poisťovňa.’

Mr D. filed a civil action against the applicant company in the Bánovce nad Bebravou District Court (Okresný súd) for protection of his personal integrity.

He argued that the company had broadcast the telephone conversation despite the fact that it had been obtained in an illegal manner. The broadcast had interfered with his personal integrity by harming his reputation, dignity and respect for his person among the public. In addition, the published statements included distorted and incomplete information capable of discrediting him.

The plaintiff also referred to the fact that the information had subsequently been taken over by the Czech TV station Nova, and that several articles had been published in the Slovak dailies SME, Práca and Slovenská republika. As a result, the confidence between the Minister of Justice and the plaintiff had been undermined.

He acknowledged that, at the time when the recording had been made, he had spoken with several persons and admitted that the recording contained his voice. The recording and the comments as such had been isolated from their context, and the telephone conversation had not been published in its entirety. The plaintiff denied that the subject of the conversation had been the facts as presented by the commentator, since his office did not authorise him to intervene in the case as indicated in the broadcast.

In its observations in reply the applicant company stated that the recording had been deposited in its mailbox by unknown persons. At the time when the tape had arrived controversial issues had been discussed for about a week concerning the fact that, as a result of the above conversation, the coalition government was threatened with a split. Prior to the broadcast employees of the applicant company had tried to contact the persons concerned in accordance with the company's internal rules. Although the tape was almost unintelligible, as an information medium the applicant company had felt obliged to inform the public and to show what was going on in political circles at that time. In the commentary on the programme the journalist had stated that the applicant company disapproved of the manner in which the recording had been obtained.

The District Court heard the parties and 3 witnesses and examined a transcript of the impugned broadcast and other documentary evidence.

In a judgment delivered on 16 March 1999 the District Court ordered the applicant company to offer the plaintiff a written apology and to broadcast that apology within 15 days. It was to read as follows:

The apllicant company was further orderd to pay 100,000 Slovakian korunas1. (SKK) to Mr D. in compensation for damage of a non-pecuniary nature as well as to reimburse his legal costs.

The District Court based its judgment inter alia on the following reasons. The applicant, being a licensed radio broadcasting company, had the right to use, without the previous consent of a person, audio recordings for scientific and artistic purposes and also for news reporting. However, under the last sentence of Article 12 § 3 of the Civil Code, such use should not be in conflict with the justified interest of the person concerned. The applicant company had not been prevented from commenting on the situation which had arisen and from presenting its views. However, in order to do so it had not been necessary to broadcast a tape obtained in an illegal manner.

The District Court further noted that the dignity of the plaintiff as a public official had been diminished as the issue had been commented on in the press and television. It therefore considered it appropriate to order the applicant company to compensate the plaintiff in respect of non-pecuniary damage under paragraph 2 of Article 13 of the Civil Code.

The applicant company appealed. It maintained that the Constitution did not subject the use of recordings to the prior establishment of their lawfulness and that it had not been formally shown that the recording had been unlawfully obtained. The plaintiff was a public official and the contents of the recording concerned the exercise of a public function. It had been discussed several days prior to its publication. By broadcasting the telephone conversation the applicant company had fulfilled its task to inform the public about issues of public interest. Finally, the applicant pointed out that the plaintiff had become a constitutional judge in the meantime, and that it had not been shown that he had suffered any damage as a result of the broadcast.

On 22 February 2000 the Žilina Regional Court (Krajský súd) upheld the judgment of the District Court. The Regional Court admitted that imparting of information by the media was one of the important instruments of control of political power in a democratic society. Informing about and criticising matters of public interest thus belonged among the most important public interests. The constitutional protection of such interests was ensured by the guarantee of freedom of expression and of the right to information. However, in the case under consideration the freedom of communication of the users of telecommunications services had been violated, and an interference with the right to respect for privacy had occurred as a result of making public the telephone conversation. That fact was the essence of the applicant company's unjustified interference with the plaintiff's personal rights since, as the Regional Court held, the protection of privacy extends to the conversations of public officials.

Article 16 § 1 provides for protection of a person's integrity and privacy. Restrictions are permissible only in cases provided for by the law.

Article 22 guarantees the secrecy of correspondence, other communications and written messages delivered by post, and of personal information (§ 1). The privacy of letters, other communications and written messages kept privately or delivered by post or otherwise, including communications made by telephone, telegraph and other means, cannot be violated by anyone except in cases specified by law (§ 2).

Paragraph 1 of Article 26 guarantees freedom of expression and the right to information. Its paragraph 2 provides, inter alia, that anyone has the right to express his or her views and to freely seek, receive and impart ideas and information. Under its paragraph 4, freedom of expression and the right to seek and impart information can be restricted by means of a law where such restriction is necessary in a democratic society for the protection of, inter alia, the rights and freedoms of others.

Under Article 26 § 5, as in force at the relevant time, State authorities and local self-government authorities were obliged to provide information about their activities in an appropriate manner. Further details in this respect were to be laid down in a special law.

The right to protection of a person's personal integrity is guaranteed by Articles 11 et seq. of the Civil Code.

According to Article 11 natural persons have the right to protection of their personality, in particular of their life and health, civil and human dignity, privacy, name and personal characteristics.

Article 12 § 1 provides, inter alia, that audio recordings concerning natural persons or their expressions of a personal nature may only be made or used with the consent of the person concerned. Under paragraph 2 of that Article such consent is not required where the documents or recordings are used for official purpose in accordance with the law. Article 12 § 3 provides that pictures and audio recordings can also be made and used in an appropriate manner without the consent of the person concerned for scientific and artistic purpose and also for news reporting by means of press, film, radio and television. Such use cannot, however, be contrary to the justified interests of the person concerned.

Pursuant to Article 13 § 1, all natural persons have the right to request an order restraining any unjustified interference with their personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.

Article 13 §2 provides that in cases where the satisfaction afforded under Article 13 § 1 is insufficient, in particular because the injured party's dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage.

The Act regulates the citizens' (občan) use of press and mass media in accordance with the constitutional freedom of expression and press (section 1 (1). Its Part (časť) V governs protection against abuse of the freedom of expression and press. It contains, inter alia, the following rules.

Legal protection is afforded to any person who makes use of his or her freedom of expression and press (section 16(1)).

Under section 16(2) the publishing of information that threatens legally protected interests of the society or citizens is considered an abuse of the freedom of expression or press. The protection of the society and citizens against abuse of the freedom of expression and press is entrusted to the publisher, the chief editor, the editor and the author. Details are to be laid down in special legislation which, at the same time, regulates the liability of the publisher for damage caused by press or other mass media.

The Government admitted that Mr D. had been a public figure at the relevant time as he had been involved in politics. However, the recorded telephone conversation had been of a private character. Relying on the Court's judgment in the case of Tammer v. Estonia (no. 41205/98, ECHR 2001-I), they argued that the especially narrow limits of permissible criticism otherwise applicable to politicians do not apply to their private affairs.

The Government further emphasised that the recording in question had been made illegally and in violation of the constitutional protection of secrecy of correspondence and other communications. The applicant had known that the recording had unlawful origins, yet it had decided to broadcast it for reasons which were not tenable. In support of that conclusion the Government pointed out that the recording was almost unintelligible, that there were doubts as to whether the recorded voice was that of Mr D. and that no relevant information could be derived from the recording due to the obscure and unclear character of its contents.

In view of the above arguments the Government considered that the broadcasting of the recording had not made any contribution to public discussion other than on whether the applicant company had breached the principles of journalistic ethics. Nevertheless, it had made an untrue impression, harmful to the reputation of Mr D., that he had been involved in the events surrounding the privatisation of SP.

The Government considered relevant and sufficient the reasons given in particular by the District Court. As to the sanction imposed, it was proportionate to the legitimate aim pursued. They concluded that the interference had been necessary in a democratic society in that it had complied with a pressing social need and had been proportionate to the legitimate aim pursued.

Finally, relying on Article 17 of the Convention, the Government maintained that the applicant company could not seek protection under Article 10 of the Convention as its conduct had intentionally interfered with the rights of Mr D. which were also guaranteed by the Convention. In particular, nothing had prevented the applicant company from commenting on the existing situation and from criticising the conduct of those involved in a reasonable manner without broadcasting an illegally obtained recording.

The applicant company maintained that the interference complained of had not corresponded to any social need which could be considered sufficiently pressing to outweigh the public interest in ensuring the freedom of the media and in informing the public of matters of general interest.