Comparative Media Law and Ethics by Tim Crook

Companion website for

COMPARATIVE MEDIA LAW & ETHICS

by TIM CROOK

to be published by Routledge on 15th December 2009

For details of the book, please visit Routledge.

Author's profile at Goldsmiths, University of London

 

Summary of Karako v Hungary ECHR April 2009
Seven judge court in the second chamber.
Seeking the right to reputation remedy in Article 8 Privacy

 

1. László Karakó was a Hungarian Member of Parliament and delegate of the political party Fidesz and was unsuccessful in a criminal defamation action over a political flyer which stated: “Dr. László Karakó, in his capacity as a member of the Fidesz... in the Regional General Assembly, regularly voted against the interests of the county. Moreover, in the debate concerning the route of the M3 highway, he did not support the version favourable to the county, with which − aside from the county − he probably harmed his own electoral district the most.”

2. The public prosecutor’s office had terminated the prosecution after Karakó had filed his complaint. ‘The Prosecutor's Office was of the view that the impugned act had occurred during the electoral campaign and, as a candidate, the applicant could not have been considered a public official. Therefore, the act did not concern a matter of public prosecution.’

3. The ECHR was satisfied ‘that the purported conflict between Articles 8 and 10 of the Convention, as argued by the applicant, in matters of protection of reputation, is one of appearance only. To hold otherwise would result in a situation where – if both reputation and freedom of expression are at stake – the outcome of the Court's scrutiny would be determined by whichever of the supposedly competing provisions was invoked by an applicant.’

4. The applicant argued ‘by refusing to prosecute his opponent for allegedly ruining his reputation in the voters' eyes, the Hungarian authorities had failed to protect his right to private life as defined by Article 8. For the Court, this claim implies that the right to reputation is an independent right protected by Article 8 of the Convention which the State has a positive obligation to protect.’

5. The ECHR has recognised in its jurisprudence that Article 8 encompasses the right to personal identity. The Court further observed that the Convention, as interpreted in the Von Hannover 2004 judgment regarding the individual's image, ‘extends the protection of private life to the protection of personal integrity. This approach itself results from a broad interpretation of Article 8 to encompass notions of personal integrity and the free development of the personality.’

6. The court interrogated the idea of whether ‘private life’ should include right to reputation. The court noted: ‘that the references to personal integrity in the Von Hannover judgment reflect a clear distinction, ubiquitous in the private and constitutional law of several Member States, between personal integrity and reputation, the two being protected in different legal ways. In the legislation of several Member States, reputation has traditionally been protected by the law of defamation as a matter related primarily to financial interests or social status.’

7. In this case the ECHR decided to distinguish between the right to integrity and right to reputation: ‘personal integrity rights falling within the ambit of Article 8 are unrelated to the external evaluation of the individual, whereas in matters of reputation, that evaluation is decisive: one may lose the esteem of society – perhaps rightly so – but not one's integrity, which remains inalienable.’

8. The majority opinion given by the Court’s President, Françoise Tulkens, stated: ‘in the instant case, the applicant has not shown that the publication in question, allegedly affecting his reputation, constituted such a serious interference with his private life as to undermine his personal integrity. The Court therefore concludes that it was the applicant's reputation alone which was at stake in the context of an expression made to his alleged detriment.’

9. The court reiterated: ‘that paragraph 2 of Article 10 recognises that freedom of speech may be restricted in order to protect reputation… In other words, the Convention itself announces that restrictions on freedom of expression are to be determined within the framework of Article 10 enshrining freedom of speech.’ The court said it was: ‘satisfied that the inherent logic of Article 10, that is to say, the special rule contained in its second paragraph, precludes the possibility of conflict with Article 8. In the Court's view, the expression “the rights of others” in the latter provision encompasses the right to personal integrity and serves as a ground for limitation of freedom of expression in so far as the interference designed to protect private life is proportionate.’

10. In a partly concurring opinion Judge Jociene disagreed with the majority interpretation that in the Court's case-law ‘reputation has only been deemed to be an independent right sporadically of the position of right to reputation in the context of Article 8.’ Judge Jociene said: ‘in my opinion, the Court's jurisprudence is not clear enough to answer the question whether reputation, as a part of the notion of “private life” and protected under Article 8 of the Convention (which is a clear from our jurisprudence), is protected as a separate aspect or is included in the protection of personal identity, distinguishable from personal integrity … that matter should be left open for the time being and, in my view, needs careful future consideration.’

11. Judge Jociene was much more detailed in his analysis of previous ECHR case law. For example in relation to Von Hannover he observed the court recognised that: ‘the concept of private life “extends to aspects relating to personal identity, such as a person's name.’ There was nothing ‘sporadic’ about the assertion in Pfeifer v Austria 2007 that ‘“private life” extends to the individual's personal identity, such as a person's name or picture, and, furthermore, includes a person's physical and psychological integrity. In…the Pfeifer judgment, the Court found that the publication of a person's photograph fell within the scope of his or her private life even where the person concerned was a public figure.’

12. Judge Jociene was categorical: ‘Therefore, in my opinion, and I conclude on this point, this protection of an individual's image or photograph extended the guarantee of respect for private life to the protection of personal identity, but not personal integrity.’

13. Judge Jociene’s analysis was cogent and persuasive. He observed: ‘In the said Pfeifer v. Austria case the Court stated: “It has already been accepted in the Convention organs' case-law that a person's right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life”. He added that in this case ‘the Court came to the conclusion that a person's reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”, and Article 8 therefore applies.’ He concluded: ‘a person's reputation falls within the scope of “private life” and attracts the protection of Article 8, not only sporadically but whenever it is justified according to the circumstances of the concrete case.’

 

 

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