Full case report
Balan v Moldova
Reference Application no. 19247/03
Court European Court of Human Rights
Judge Bratza J and Casadevall, Bonello, Traja, Pavlovschi, Šikuta and Hirvelä JJ
Date of Judgment 29 Jan 2008
Human rights – Photographs – Protocol 1, Article 1, ECHR – Peaceful enjoyment of possessions – State use of private property – Unauthorised use of photographs – Photographer’s right to compensation
The complainant photographer (B) retained the intellectual property rights in a photograph of a castle that he had taken. He complained that the photograph’s use by the respondent state as a background for national identity cards without his permission constituted an unjustified control of use of property within the meaning of Protocol 1 Article 1 to the European Convention on Human Rights. The respondent state refused B’s request for compensation for use of the photograph and that decision was upheld by the domestic courts.
Whether the state had violated Article 1 of Protocol 1 of the Convention
B had possession of the photograph within the meaning of Protocol 1 Art 1. The state’s use of the photograph without B’s permission amounted to an interference with B’s property rights that was disproportionate to the aims pursued. The Court accepted that the respondent state’s issuing of identity cards to its population served an undoubtedly important public interest. However, it went on conclude that such an aim could have been reached in a variety of ways that did not involve a breach of B’s rights; a contract could have been concluded with B or another photograph could have been used. Accordingly the use made by the respondent state of B’s photograph amounted to a violation of Protocol 1 Art 1 of the Convention. B was entitled to EUR 5,000 for pecuniary and non-pecuniary damages.
The European Court of Human Rights concluded that the “domestic courts failed to strike a fair balance between the interests of the community and those of the applicant, placing on him an individual and excessive burden”.
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.