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Overview of the recent case-law of the European Court of Human Rights on the balance between the right to private life and the right to freedom of expression

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Abstract

The right to respect for private life and the right to freedom of expression deserve equal protection. Private life is a wide notion, and it includes aspects related to personal data and reputation. Limitations to both rights are permissible, provided that a number of conditions are fulfilled. When these two rights come together in a specific case, the national authorities, and especially the domestic courts, must conduct a careful balancing exercise between these competing rights. In some situations, the State authorities may also have a positive obligation to take concrete measures, of legislative, administrative or judicial character, to protect one of these rights and to achieve the proper balance between them.

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Notes

  1. The cases cited in this article can be found on the Court’s Internet database HUDOC - European Court of Human Rights (coe.int). They are available in English and/or French. They are cited in the present article according to the style used by the Court in its case-law.

  2. See, among other authorities, Axel Springer AG v. Germany [GC], no. 39954/08, § 87, 7.2.2012 with the references cited.

  3. See Potoczká and Adamčo v. Slovakia, no. 7286/16, § 72, 12.1.2023. See also M.K. v. Ukraine, no. 24867/13, § 34, 15.9.2022.

  4. See, among other authorities, Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II (related to the creation by the authorities of a card containing personal information on the applicant), Uzun v. Germany, no. 35623/05, § 46, ECHR 2010 (extracts) (concerning the surveillance of the applicant’s car by GPS) and, most recently, L.B. v. Hungary [GC], no. 36345/16, § 103, 9.3.2023 (in relation with the publication of the applicant’s name and address in the context of fiscal proceedings).

  5. 1981, ETS no. 108; available in English here https://rm.coe.int/1680078b37.

  6. See, for a recent authority, albeit not yet final at the time of the drafting of the present article, Jehovah’s Witnesses v. Finland, no. 31172/19, § 77, 9.5.2023.

  7. Biancardi v. Italy, no. 77419/16, 25.11.2021

  8. Ibid, paragraph 48.

  9. Ibid, paragraph 54.

  10. Ibid, paragraph 58.

  11. Axel Springer AG v. Germany [GC], no. 39954/08, §§ 89-95, 7.2.2012. The relevant criteria are: i) the contribution to a debate of general interest, ii) the notoriety of the person concerned and the subject of the publication, iii) the prior conduct of the person concerned, iv) the method of obtaining the information and its veracity, v) the content, the form and the consequences of the publication, and vi) the severity of the sanction imposed on the applicant.

  12. Biancardi, cited above, paragraph 62.

  13. Ibid, paragraph 64.

  14. Hurbain v. Belgium, no 57292/16, currently pending before the Grand Chamber. At the time of the drafting of the present article, the Grand Chamber had not yet delivered its judgment.

  15. Mediengruppe Österreich GmbH v. Austria, no. 37713/18, 26.4.2022

  16. Österreichischer Rundfunk v. Austria, no. 35841/02, 7.12.2006.

  17. Mediengruppe Österreich GmbH, cited above, paragraph 49.

  18. Ibid, paragraph 71.

  19. Ibid, paragraph 72.

  20. Standard Verlagsgesellschaft mbH v. Austria (no. 3), no. 39378/15, 7.12.2021

  21. Ibid, paragraph 71.

  22. Ibid, paragraph 74.

  23. Ibid, paragraphs 75-76.

  24. Ibid, paragraph 78.

  25. Ibid, paragraph 79.

  26. Cited above.

  27. Delfi AS v. Estonia, no. 64569/09, ECHR 2015.

  28. Standard Verlagsgesellschaft mbH v. Austria (no. 3), paragraph 92 in fine.

  29. Ibid, paragraph 95.

  30. Samoylova v. Russia, no. 49108/11, 14.12.2021

  31. Ibid, paragraphs 59-66.

  32. Cited above.

  33. Samoylova, cited above, paragraphs 64 and 101.

  34. Ibid, paragraph 101.

  35. Ibid, paragraph 103.

  36. I.V.Ţ. v. Romania, no. 35582/15, 1.3.2022

  37. Ibid, paragraph 38.

  38. Ibid, paragraph 49.

  39. Cited above.

  40. I.V.Ţ. v. Romania, cited above, paragraph 54.

  41. Ibid, paragraphs 57-58.

  42. Ibid, paragraph 59.

  43. Ibid, paragraph 62.

  44. L.B. v. Hungary GC, no. 36345/16, 9.3.2023.

  45. Ibid, paragraph 104.

  46. Ibid, paragraphs 116-117.

  47. Ibid, paragraph 123.

  48. Ibid, paragraph 125.

  49. Animal Defenders International v. the United Kingdom [GC], no. 48876/08, ECHR 2013 (extracts).

  50. L.B. v. Hungary, cited above, paragraph 126.

  51. Ibid, paragraph 128.

  52. Ibid, paragraphs 133-134.

  53. Ibid, paragraph 139.

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    Raluca Stancescu-Cojocaru

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Stancescu-Cojocaru, R. Overview of the recent case-law of the European Court of Human Rights on the balance between the right to private life and the right to freedom of expression. ERA Forum 24, 261–274 (2023). https://doi.org/10.1007/s12027-023-00760-x

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