– ECtHR Rules on Unlawful Covert Video-Recording in Berlizev –
On 8th July 2021, the ECtHR ruled in the case of Berlizev v. Ukraine. In terms of the facts, the case concerns the applicant’s conviction, before Ukrainian courts, of having accepted a bribe, the evidence for which was gathered by a covert police operation including video-recordings of the applicant. The applicant complained to the ECtHR under Article 8 – right to respect for private and family life – and Article 6 – right to a fair trial – that ‘the police unlawfully recorded him and that his conviction was based on unlawfully obtained evidence.’ The ECtHR found in favour of the applicant’s Article 8 complaint, whilst rejecting the Article 6 complaint as manifestly ill-founded. In terms of the Article 8 complaint, the Court concluded that the way the video-recording had been obtained was not in accordance with the law and therefore could not constitute a legitimate interference with the applicant’s rights. In particular, the Court observed: ‘the video-recording of the covert operation in respect of the applicant [in line with national law] had to be authorised by a court decision… This requirement of domestic law constituted an important procedural safeguard against arbitrary interference with private life. The Court has endorsed the importance of this safeguard, emphasising that once it is put in place, the judicial authorities should provide relevant and sufficient reasons for their authorisations of covert operations… However, there is no indication that in the present case any such prior judicial approval was ever obtained by the police.’ Considering prior case law, this is not a surprising decision.
– ECtHR Rules on Newspaper’s Publication of Private Information in Hájovský –
On 1st July, the ECtHR ruled in the case of Hájovský v. Slovakia. In terms of the facts, the case concerns a newspaper article about the applicant’s efforts to obtain a child through surrogacy procedures, in which ‘private information and non-blurred images of [the] applicant taken covertly and under pretences’ were published. The applicant complained to the national Courts about the article. The national Courts, however, found in favour of the newspaper. The applicant then complained to the ECtHR claiming the publication, and the outcome of the deliberations of the national Courts, constituted a breach of their Article 8 – right to respect for private and family life – and Article 6 – right to a fair trial – rights. The ECtHR found in favour of the applicant – although, in light of the reasoning concerning Article 8, found that ‘no separate issue [arose] under Article 6 of the Convention’. The Court once again highlighted its criteria for considering whether newspaper publications of private information strike a fair balance between freedom of expression and privacy: ‘the main criteria of assessment are contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and the circumstances in which photographs were taken.’ In light of these criteria and the facts of the case the ECtHR concluded: ‘while the domestic courts did engage in a balancing exercise between the right to private life and freedom of expression, that exercise was not carried out in conformity with the criteria laid down in the Court’s case-law. The assessment of the applicant’s prior conduct was flawed…and the manner in which the photographs had been taken was not taken into account… Most importantly, none of the domestic courts would appear to have assessed the contribution to the public-interest debate of broadcasting images of the applicant without blurring them’. This is the latest in a series of cases concerning news media and the balance between freedom of expression and privacy.
– EDPB Holds its 51st Plenary Session –
On 7th July, the EDPB held its 51st Plenary Session. During the meeting, the following documents were adopted:
- ‘Recommendations 01/2020 on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data’ – ‘following public consultation’;
- ‘EDPB-EDPS Joint Opinion on the Proposal for a Regulation laying down harmonised rules on artificial intelligence’ – covered in previous issues of DPI;
- ‘Letter to EU Institutions on a possible digital euro’;
- ‘Opinion 20/2021 on Tobacco Traceability System’;
The documents are available on the EDPB’s website.