Insight into M.D. and Others v. Spain – How Does The Court Determine When Investigative Journalism Becomes a Violation of One´s Privacy?
The 2014 case, M.D. and Others v. Spain, was seminal for illuminating the dichotomy between the rights of an individual and the rights of a published journalist. This article will explain the alleged violations by the applicants and demonstrate how the Court decides on whether a right has been violated, considering a person´s private life under both the European Convention of Human Rights (ECHR) and the Spanish Constitution.
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In February of 2014, 20 Catalan serving judges and magistrates signed a public manifesto entailing their legal opinion in favour of exercising the Catalan people´s “right to decide,” within the framework of the Spanish Constitution and international law. This inspired a controversial article which publicised the judges´ political opinions and led to a lawsuit.
The article was entitled “The conspiracy of the thirty-three separatist judges,” and was published on March 3, 2014, by La Razón. The subjects of the article instigated the criminal proceedings because the published work not only contained the subjects´ personal views based on the manifesto, but it also contained private information about the respective applicants – their full names and addresses, the respective courts where they worked, and photographs of the subjects.
The personal data was retrieved from a confidential police ID database – typically used for insurance purposes and management of Spanish identity documents (which form “IDs” for Spanish citizens). The reports of the applicants were leaked to the press so that the journalists could explore the backgrounds of the signatories to the manifesto, but notably, the content from the database was not consensually given. The applicants thus filed for both criminal and civil proceedings and claimed that their right to privacy and to the protection of their respective image had been violated. Consequently, the applicants were compensated, under their civil proceedings, for the damages incurred during this process and for the data leaks, pursuant to Article 8 of the ECHR.
Article 8 ECHR:
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The applicants complained that Article 8 of the Convention had been violated on 3 grounds: firstly, the police, without any legal justification, had created a report on each applicant (as signatories to the aforementioned manifesto) and used photographs taken from the police ID database; secondly, the report had been leaked to the press; thirdly, the photographs were published in the newspaper.
The primary purpose of Article 8 is to protect against arbitrary interference by a public authority. Where the case concerns a negative obligation1, the Court must assess whether the interference was consistent with the requirements of paragraph 2 of Article 8 – that is to say in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society2.
The Court held that the mere fact of storing data relating to the private life of an individual amounts to an interference within the meaning of Article 83, and since political opinion falls among the special categories of sensitive data, the court regarded a heightened level of protection4 in this particular situation.
The interference with the applicants’ private life was not in accordance with any domestic law, and the public authorities had used the personal data for a purpose other than that which justified their collection. Conclusively, the Court concluded that the mere existence of the police report in issue (which was drafted in respect of individuals whose behaviour did not imply any criminal activity) amounted to a violation of Article 8.
When such an unlawful disclosure takes place, the positive obligation (pursuant to Article 8), implies an obligation on the respondent State to carry out effective inquiries to rectify the matter to the extent possible5.
However, in this case, there was an ineffective inquiry to determine the circumstances in which the journalists gained access to the photographs of the applicants and, if necessary, to sanction the persons responsible for leaking the data – in violation of his/her professional duty.
Therefore, the failure of the judicial bodies to carry out certain investigative measures was considered to be failure by the respondent State to comply with its positive obligations under Article 8 of the Convention6.
The Court held, therefore, that there was a violation of Article 8 of the Convention.
Article 10 ECHR:
- 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.
- 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.
When determining whether there was a violation of Article 10, The Court carries out a case-by-case examination of situations that may have a restrictive impact on the enjoyment of freedom of expression.
The applicants complained that Article 10 of the Convention had been violated because in signing the manifesto, the judges had expressed their views regarding a legal controversy and, following the publication of the newspaper article, they had been subjected to disciplinary action – although no sanction was imposed on any of the applicants.
The applicants had suggested that the measures had a “chilling effect”, without clarifying in which specific situation such an effect occurred. Additionally, they were not initiated ex officio by the General Council of the Judiciary, but rather as a consequence of a complaint -having been lodged by a third party.
Therefore, because no type of sanction or “chilling effect” could be discerned, there was a lack of evidence to constitute an interference for the purposes of Article 10 of the Convention7.
Thus, there was no violation of Article 10 ECHR.
The applicants also claimed that there was a breach of their right to a fair trial on the ground that the investigation carried out, in respect of their reported crimes, had not been sufficient.
The applicants relied on Article 6 (1) of the Convention which in its relevant parts reads as follows:
Article 6 (1) ECHR:
- In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law.
The alleged violation was dismissed due to the facts of the case and its findings under Article 8 – concerning the investigation in issue. The Court considered that it was not necessary to examine the admissibility and merits of this remaining complaint.
Consequently, there was no violation of Article 6 ECHR.
Considering there was only a violation of Article 8 ECHR, the Court determined that it would be just to award 4,200€ in respect of nonpecuniary damage, plus any tax that may be chargeable.
Additionally, the Court also considered it to be reasonable to award the applicants jointly the sum of 3,993€ – covering all heads for costs and expenses in the domestic proceedings and for the proceedings before the Court, plus any tax that may be chargeable to the applicants.
Written in collaboration with Mia Harrigton