CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 28 novembre 2023

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Malheiro Lima, a lawyer practising in Ponte de Lima; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The applicant is a company which manufactures and markets nappies and other related baby products. 2.     On 7 February 2017 the applicant company brought an action for damages for non-contractual civil liability against D., a specialist consumer magazine, following the publication by the latter of a comparative study on the quality of nappies available on the market of a selected number of brands, including those produced by the applicant company. The applicant company claimed that the study published, and the unfavourable classification obtained by the nappies it produced, with reference in particular to the presence of harmful chemical substances, damaged its good name and the reputation of its commercial activity, affecting its commercial relations with the customers to whom it supplied nappies. 3 .     On 23 January 2019 the Lisbon District Court dismissed the claim. On   7 June 2019 the Lisbon Court of Appeal dismissed an appeal lodged by the applicant company and upheld the decision of the District Court. It   considered that the decision had been based on a careful analysis of the conflicting interests and found that the publication in question had not breached the applicant’s right to the protection of its reputation. In particular, the Court of Appeal emphasised the public interest in the matter and the fact that the publication had been based on studies and tests carried out by credible bodies, albeit using different criteria from those used by the applicant company. It noted, for instance, as regards the presence of chemical substances in the nappies produced by the applicant company, that the publication at issue had concluded that, although the applicant company’s nappies contained those substances within the permissible legal limits, they exceeded the limits of the guidelines used to carry out the studies which were the subject of the publication in question. The Court of Appeal concluded that the relevant information had been publicised in an appropriate and balanced manner, that the applicant company had been informed of that information prior to publication, that the content of the publication had not been proved to be erroneous or untrue and that the applicant company had not contradicted the conclusions reached. 4.     Relying on Article 6 of the Convention, the applicant company complained of the unfairness of the proceedings. It alleged that the domestic courts had failed to protect its reputation vis-à-vis the right to freedom of expression of the magazine responsible for the publication which had given rise to the proceedings at issue. THE COURT’S ASSESSMENT 5 .     The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos.   37685/10 and 22768/12, § 114, 20 March 2018), finds that it would be appropriate to examine the applicant company’s complaint from the standpoint of Article 8 of the Convention in so far as the applicant company alleged that its reputation had been damaged on account of a publication concerning the quality of products manufactured by it. This raises the question whether Article 8, under its “private life” limb, is applicable where a legal person such as the applicant company complains of an alleged violation of its reputation. So far, the Court has consistently held that a legal person’s business premises and its correspondence fall under the ambit of Article   8. It has further held that the protection of a company’s reputation may be the legitimate aim of a restriction under Article 10 § 2 of the Convention. However, it has left open the question whether the private life aspect of Article 8 protects the reputation of a company (see Firma EDV für Sie, EfS Elektronische Datenverarbeitung Dienstleistungs GmbH v. Germany (dec.), no. 32783/08, §§, 20-24, 7 July 2008, with further references). The   Court considers that it is not necessary to resolve this question in the present case and will thus deal with it on the assumption that Article 8 applies. 6.     The Court reiterates at the outset that reputation (of natural persons) is protected by Article 8 of the Convention as part of the right to respect for private life. However, in order for Article 8 to come into play, an attack on a person’s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of that right (see, with further references, McCann and Healy v. Portugal , no. 57195/17, § 68, 20   September 2022; and, in the context of professional reputation, Budimir v.   Croatia , no. 44691/14, §§ 46-47, 16 December 2021). Furthermore, in instances where, as in the present case, the “protection of the rights and freedom of others” are at stake, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting the two values guaranteed by the Convention, namely, on the one hand, freedom of expression protected by Article   10 and, on the other, the right to respect for private life enshrined in Article 8 (see Axel Springer AG v. German y [GC], no. 39954/08, § 87, 7 February 2012). The Court has summarised the relevant criteria for this balancing exercise as follows: whether the allegations contributed to a public-interest debate; how well known the person concerned was, the subject of the allegations, the prior conduct of the person concerned, the content, form and consequences of the allegations, and the specific circumstances of the case (see   Von Hannover v.   Germany (no. 2)   [GC], nos.   40660/08   and   60641/08, §§ 109-13, ECHR 2012). If the two rights in question have been balanced in a manner consistent with the criteria established by the Court’s case-law, the Court would require strong reasons to substitute its own view for that of the domestic courts (ibid., § 107). 7.     Based on the assumption that Article 8 applies and that the necessary level of seriousness has been attained in the instant case (see paragraph 5 above), the Court is satisfied that the domestic courts carried out a well ‑ structured balancing exercise between the competing interests at issue in the light of the principles arising from the case-law of the Court. The Court notes that the domestic courts, in assessing the applicant company’s right to the protection of its reputation against the right of the magazine responsible for the impugned publication to disseminate and share information, considered the relevance of the public interest in the publication’s subject matter, the conduct of the parties, the method of obtaining the information and its veracity, as well as the consequences of the publication for the applicant company (paragraph 3 above). In this connection, the Court notes in particular that the publication at issue concerned a matter of general public interest, that is, the health and well-being of babies, which was presented in the wider context of consumer protection, an area of major public concern in today’s societies; that the information on which the publication was based was gathered through legitimate and transparent methods that had been shared with the applicant company beforehand, aimed at comparing the characteristics and quality of the nappies produced by the applicant company with other similar products available on the market; that the content of the publication was made available to the applicant company prior to publication; and also that the content of the publication did not prove to be erroneous or untrue, and the applicant company was not able to contradict the conclusions reached (see paragraph 3 above). 8.     The Court further notes that the decisions at issue were reached following adversarial proceedings in which the applicant company was able to put forward all its arguments and submit all its evidence. 9.     In view of the foregoing, the Court concludes that, in any event, the domestic courts struck a fair balance between the competing rights at stake in the present case. 10.     It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 18 January 2024.     Ilse Freiwirth   Tim Eicke   Deputy Registrar   President