Reference: Application no 36919/02;  EMLR 7
Court: European Court of Human Rights
Judge: Tulkens P, Barreto, Zagrebelsky, Jociene, Popovic, Tsotsoria, Karakas
Date of judgment: 25 Nov 2008
Summary: Privacy - Article 8 ECHR - Freedom of expression - Article 10 ECHR - Damages - Public interest - Private information - Medical information
The Applicant’s husband, B, had successfully brought a claim for invasion of privacy against a local newspaper and had been awarded the maximum sum for non-pecuniary damage – EUR 2,896. The private information related to B’s HIV status. The Applicant appealed, arguing that the sum awarded was derisory and was a violation of her husband’s right to an effective domestic remedy.
Whether the sum awarded in damages was a violation of the Applicant’s Article 8 ECHR right to respect for her family’s private life.
Finding a violation of Article 8 ECHR and awarding EUR 6,500:
Protection under Art 8 extended beyond the private family circle to include a social dimension. The protection of the confidentiality of a person’s HIV status was especially important since disclosure of that information could lead to opprobrium and the risk of ostracism. In addition such disclosure could dissuade people from undertaking voluntary HIV tests. There was no public interest in publishing the information – the sole purpose of publication was “apparently to satisfy the prurient curiosity” of a particular readership. In such a case of “outrageous abuse of press freedom” the domestic limitation on judicial discretion in relation to awarding damages was a violation of Article 8.
Demonstrating once again the intense factual analysis required in privacy cases, the Court was influenced by fact that the applicant’s family lived in village and not a city. This, the court observed, increased the impact of the publication as the disclosure to B’s neighbours and immediate family could cause “exlusion from village social life”.
The judgment is also notable for its finding that protecting the rights guaranteed under Article 8 requires awarding compensation not only for the purpose of “redressing the damage suffered by the victim” but also for “sufficiently deterring the recurrence of such abuses”.