CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 décembre 2000

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They are represented before the Court by Mr Guillermo Regalado Nores and Mr Manuel Ollé Sese, lawyers practising in Madrid. A.     The circumstances of the case The first applicant is the editor of a general news magazine, Epoca , and the legal representative of the company that publishes the magazine. The second applicant is a journalist. In its edition of 4 March 1991 the magazine Tribuna referred in its “Prying Eye” column to what one of its journalists called “a new sex scandal between an attractive aristocrat and a banker from this country” and to the existence of pictures immortalising their encounter in a Madrid hotel. The rumour was widely repeated in the media, although the persons to whom the Tribuna story related were not identified. On 12 March 1991, while on air with the presenter of the Radio 4 programme “Night Carmen” broadcast by Radio nacional de España , a journalist, C.H., referred to the rumour and identified the Duchess of M. and E.B. as the protagonists of “the much-publicised romance between the aristocrat and the banker, both married with lots of children” and gave the names of their spouses. In its 25 March 1991 edition, Epoca , of which the first applicant was the editor, published an article by the second applicant concerning the alleged adulterous relationship. Photographs of the two people concerned appeared on the magazine cover with the following caption: “Suspected relationship between E.B. and the Duchess of M.; a new scandal breaks”. In a four-page report that included two photographs of the persons implicated in the alleged relationship and photographs of their families, the second applicant referred to the rumours circulating about the romance in the media and said that those involved had been identified by Radio nacioñal de Espana . A reference was also made to information that had appeared in another report. In the article the Duchess of M.’s husband was described as debonair, very chubby and known to his former classmates as “ el platillo ” (“the saucer”). Then, after giving the names of the children and the occupational activities of both the Duchess of M. and E.B., the second applicant added: “the family ties make this saga resemble an American television series”. He repeated statements made in another magazine that “the mysterious couple’s chosen love nest was a luxury Madrid hotel where they were caught by the photographer in two compromising situations”, the first at the hotel entrance and the second during a romantic encounter in the hotel corridors. The report was accompanied by the words of lewd ditties containing allusions to women, not only courtesans, but also duchesses who ended up getting the “Booty” (a reference to E.B.’s surname, Botín ) and instructing Filipino women in the techniques of pleasure and who chased after bankers who were only too happy to oblige, paying scant regard to their qualities since their sole interest was money – “Booty” ( Botín ). Furthermore, a second report by the second applicant was published in another edition of the magazine that appeared on 1 April 1991 under a title that was published on the cover: “The continuing enigma of the banker and the aristocrat: E.B. and the Duchess of M. deny any relationship”. Two large photographs of the couple appeared on pages 12 and 17. An account was given of the history of the case and references made to an attempt by E.B. to have copies of Epoca seized and to other judicial proceedings he had brought. The magazine also explained that the compromising photographs had still not been published. As a result, the Duchess of M. and her husband brought a civil action before the Madrid first-instance judge no. 11 against the applicants and two reporters from Radio nacional de España on the basis of Institutional Law no. 1/82 of 5 May 1982 on the Protection of the Right to Honour, Private and Family Life and to Control the Use of One’s Likeness. In a judgment delivered on 4 December 1992 after adversarial proceedings the Madrid first-instance judge no. 11 found in favour of the claimants in the civil action, holding that they had been the victims of an unlawful interference with their right to honour and to respect for their private life. He gave inter alia the following reasons in his judgment: “Three: honour as an authentic personality right may be offended by acts or interferences ... that entail a loss of esteem for a person either in the eyes of fellow citizens (the objective aspect) or in his or her own eyes (the subjective aspect). Under Article 18 of the current Constitution honour is ranked as a fundamental right and even though section 20 of the Institutional Law recognises and protects freedom of expression, that freedom is circumscribed in particular by the right to honour, to private life and to control one’s likeness... ... Five: the information provided by Radio 4 and Epoca magazine constitutes an intolerable interference with the claimants’ honour which it is for the courts to remedy ... by setting the limits on the rights to impart information and to freedom of expression, the pillars of all democracies. In order to guide judges when they consider a defendant’s conduct unlawful the courts have established a series of principles to assist them in the performance of the delicate task of weighing up the various competing interests or, to coin the Anglo-American expression, “balancing”, which entails weighing in the balance the various circumstances capable of being defined in law so as to determine which of the rights in issue must prevail, the right to impart information or the right of others to respect for their honour or privacy or to control the use made of their likeness... Six: ... As regards the written publication, the representatives acting for the defendants linked to the magazine Epoca cleverly retort that the reports did no more than transmit ‘journalistic information’ to its readers, as simple ‘scribes of news’ made by others. Although that affirmation is true because the defendants have not produced anything of substance of their own in the magazine, it nevertheless cannot serve to justify their conduct as they also had a duty to seek out the truth in a diligent manner ... as the reports did not merely repeat information that had been disseminated by others but were published as items of scandal or sensation. Seven: an important detail that concerns all the defendants is the indisputable fact that the claimants are not public figures who, as the Constitutional Court has indicated, are afforded reduced protection under the Constitution as regards freedom to impart information on their activities that are of public interest or social utility... The claimants have not freely chosen to become public figures and, although they have a certain social standing, it is not something they have sought, as it neither appears nor has been proved that they desired publicity...”. After dealing with the content of the reports in another paragraph of the judgment, the judge held: “the intentionally disproportionate use of scandalous or disparaging terms and the use of innuendo about matters for which there is not the least shred of evidence constitute unlawful practices that were clearly perpetrated by the magazine Epoca ”. As a consequence, the judge ordered the applicants to publish the full text of the judgment in the same column of Epoca , using the same typeface as that used in the report, and with an announcement of the judgment on the cover. Radio nacional de España was ordered to broadcast the text of the judgment on its frequencies in the same programme. The applicants and Radio nacional de España were also ordered to make reparation for the damage sustained by the victims in an amount to be assessed at the execution stage of the judgment, according to the criteria it laid down. The applicants appealed against that judgment to the Madrid Audiencia Provincial , which, in a judgment of 26 January 1996, dismissed the appeal and upheld the impugned decision. An appeal on points of law was dismissed by the Supreme Court on 24   September 1998. It held that the courts below had correctly decided the issues and had not infringed the applicants’ constitutional right to communicate or impart true information. It added that freedom of expression was curtailed by an obligation to omit anything which could be injurious or offensive and was unnecessary in the expression of ideas, opinions or value judgements. The report in question had focused on scandal and sensationalism, without any attempt being made to articulate a healthy public opinion. Relying on Articles 24 (right to a fair hearing) and 20 (right to freedom of expression and to information) of the Constitution, the applicants lodged an appeal with the Constitutional Court. In a decision of 14 July 1999, which was served on the applicants on 23 July 1999, the Constitutional Court dismissed the appeal as ill-founded. With regard to the complaint under Article 20 of the Constitution, it held: “... As a practical matter, as regards the so-called ‘neutral report’, this court stated in its judgment no. 232/1993, which was cited by the appellants: ‘when a media body divulges statements made by a third party that suggest that there has been an interference with the rights recognised by Article 18.1 of the Spanish Constitution, that divulgation is not entitled to the protection of Article 20.1 of the Spanish Constitution unless the truth of the statements attributed to the third party is proved and the statements ... relate to facts or circumstances of public importance’. Further, in judgment no.   41/1994..., it expressly added: ‘a report that is neutral in form or content may cease to be so if it assumes an informative character which is in practice incompatible with its function as a mere conduit for the message’ (paragraph 4 of the judgment). Thus the Supreme Court’s decision on the conflicting constitutional rights in the instant case, which is set out in its judgment upholding the judgments of the first-instance judge and the Audiencia Provincial , is consistent with the case-law cited above. The Supreme Court ... does not contest that, as a transcription of the information broadcast by Radio nacional , the information published by Epoca enjoyed formal protection as it satisfied the requirement of truth explained in judgment no.   232/1993. However, in an analysis of the circumstances of the case that appears entirely reasonable, the Supreme Court said that the information did not possess the essential characteristic it required for legitimacy, namely being of public importance, since it concerned the highly personal matter of a supposed love affair between two people whose publicly conveyed image, assuming it existed, had never extended to their love lives. That fact makes the dissemination   ... of information belonging strictly to the private lives of those involved, complete with photographs of them and their families and punctuated with descriptions in terms that were at times indisputably injurious or offensive, unjustifiable. It is precisely that final finding in its judgment on the issue of the freedom to impart information that also led the Supreme Court to find that the report in question had overstepped the bounds within which freedom of expression may legitimately be exercised... That finding is entirely consistent with the constitutional case-law applicable on the subject...” B.     Relevant domestic law Article 20 of the Constitution “1.     The following rights shall be recognised and protected: (a)     the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, in writing or by any other means of reproduction; ... (d)     the right freely to receive and communicate true information by any means of dissemination. 2.     The exercise of these rights may not be restricted by any prior censorship. ... 4.     These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children.” COMPLAINT Relying on Article 10 of the Convention the applicants complained of a violation of their right to freedom of expression, arguing that the order made against them by the Spanish courts was unjustified and disproportionate to the legitimate aim pursued. THE LAW The applicants complained that the decisions of the Spanish courts had infringed their right to freedom of expression, as the order made against them was unjustified and disproportionate to the legitimate aim pursued. They relied on Article 10 of the Convention, which reads: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The Court considers that the order made against the applicants amounted to an “interference” in the exercise of their freedom of expression. Such an interference will infringe Article 10 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2 and is “necessary” in a democratic society to achieve that aim or aim. The applicants did not contest that the interference was prescribed by law and pursued a legitimate aim. The Court must therefore determine whether the interference complained of was necessary in a democratic society. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see the Handyside v. the United Kingdom judgment of 7 December 1976, Series   A no. 24, p. 23, § 49; and the Jersild v. Denmark judgment of 23   September 1994, Series A no. 298, p. 26, § 37). The Court reiterates that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see the De Haes and Gijsels v. Belgium judgment of 24 February 1997, Reports 1997-I, pp. 233-234, § 37). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see the Prager and Oberschlick v. Austria judgment of 26 April 1995, Series A no. 313, p. 19, § 38). Further, the Court’s task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article   10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, among many other authorities, the Goodwin v. the United Kingdom judgment of 27 March 1996, Reports 1996-II, p. 501, § 40). The applicants complained that the order made by the Spanish courts was unjustified and disproportionate to the legitimate aim pursued and, consequently, unjustified for the purposes of paragraph 2 of Article 10. The Court reiterates that it is not its task to take the place of the relevant domestic courts, but to review under Article 10 of the Convention the decisions they have taken pursuant to their power of appreciation. In the instant case, the Court notes that in a judgment of 4 December 1992 the Madrid first-instance judge no. 11 examined the competing interests in detail and followed the settled case-law of the Constitutional Court in holding that the reports in issue had used intentionally disproportionate terms of a scandalous and disparaging nature against persons who could not be accused of having in any way consented to dissemination by the press of information about their private lives. The Court also notes that in its decision of 14 July 1999 the Constitutional Court was careful to examine in detail the criteria to be used in order to weigh up the competing rights fairly. In that connection, the Constitutional Court reiterated in line with its previous case-law that information constituting an interference with the rights of others only enjoyed the protection of Article 20 of the Constitution (right to freedom of expression) if the statements in issue were proved to be true and if they related to facts or circumstances of public interest. In the present case, the Constitutional Court held that the information published by the applicants did not possess the essential characteristic that could make its dissemination legitimate, namely being of public interest, since it referred to an alleged love affair between two people whose publicly conveyed image, assuming it existed, had never extended to their love lives. In addition, it stressed that the terms used by the applicants in describing certain matters that came strictly within the domain of the private life of the persons concerned were indisputably injurious or offensive. Like the Spanish courts, the Court considers that as they concentrated on the purely private aspects of the life of those concerned and even though those persons were known to the public, the reports in issue cannot be regarded as having contributed to a debate on a matter of general interest to society. In the light of the criteria laid down by the case-law of the Convention institutions on the subject, the Court finds that the Spanish courts weighed up the rights in issue, namely the right to freedom to communicate information and the right of others to protect their reputation, in decisions that were fully reasoned. It holds that a fair balance was struck between the competing interests and, accordingly, the measure in issue was justified as being necessary in a democratic society for the protection of the rights of others. It follows that the application is manifestly ill-founded and must be dismissed in accordance with Article 35 § 3 of the Convention. For these reasons, the Court unanimously, Declares the application inadmissible.   Vincent Berger   Georg Ress   Registrar   President