Karakó v. Hungary: Does Article 8 of the ECHR Provide a Right to Reputation?
In 2002 Mr Karakó was a candidate in the Hungarian parliamentary
elections. During the elections a political opponent distributed a
flyer in Karakó's electoral district, which claimed that Karakó
in the past regularly voted against the interests of his own
electoral district. As a reaction Karakó filed a criminal complaint
against his political competitor in May 2002, accusing him of
damaging his reputation. The ensuing investigation was halted in
2004 because the public prosecutor found that the distribution of
the flyer was not within the realm of public prosecution. Another
procedure in Hungary produced no results either.
Karakó then filed a complaint against the Republic of Hungary
with the European Court of Human Rights ("the Court").
According to Karakó the Republic of Hungary had acted in violation
of Article 8 of the ECHR by not protecting his right to reputation.
The Court gave a
judgment on 28 April 2009.
Court: Art. 8 ECHR Contains No Right to Reputation
The ECHR understands from Karakó's complaint that Karakó thinks
that the right to reputation is an independent right protected by
Article 8 of the ECHR. However, according to the Court the right to
the protection of private life in Article 8 of the ECHR does not in
principle extend to reputations. Article 8 protects the
'personal identity' and the 'personal integrity'
(for example a person's self-esteem). According to the ECHR,
these concepts only include reputation if the attack on a persons
reputation constitutes such a serious interference with his private
life as to undermine his personal integrity.
Court: Art. 10 of the ECHR is the Starting Point in Case
on Freedom of Expression
Furthermore, the Court considered that in a dispute about an
expression, also where it concerns a person's private life, the
expression has to be assessed within the scope of Article 10 of the
ECHR, since, according to the Court, Article 10 of the ECHR has
been specifically designed "to provide guidance concerning
freedom of speech". Paragraph 2 of this Article guarantees the
protection of the reputation or the rights of others.
The Court found that Karakó's complaint that his reputation
as a politician had been harmed in the eyes of the voters is not a
sustainable claim under Article 8 of the ECHR. Therefore the Court
held that Article 8 of the ECHR had not been violated, and
dismissed Karakó's complaint.
Conclusion: Groundbreaking Judgment
In literature and case law discussions had been going on for a long
time about how the right to freedom of speech in Article 10 of the
ECHR on the one hand and the right to privacy in Article 8 of the
ECHR on the other hand relate to each other, and how these two
interests should be weighed against each other. Both articles
provide that an interference with the right to privacy (Article 8)
and with the freedom of expression (Article 10) is, in brief, only
allowed if there is a necessity of such interference. This creates
a conflict. Should a test be carried out in one go or in two
stages? Two stages implies: first see which interest weighs
heavier, and then consider once again whether the test of necessity
of either Article 8 of the ECHR or Article 10 of the ECHR has been
complied with. In the judgment Van Gasteren/Hemelrijk of the Dutch
Supreme Court (18 January 2008), in which this question was a hot
issue, the test in one go was chosen. This quite recent judgment of
the Supreme Court now seems to have been overtaken by the judgment
of the European Court of Human Rights, which contains a fundamental
decision in two respects.
With its opinion that the protection of Article 8 of the ECHR in
principle does not extend to reputations, the Court deviates from
its own previous judgments (e.g. Pfeifer v Austria from 2008), in
which it ruled that Art. 8 did protect a 'right to
reputation'.
The determination by the Court that a dispute on an expression
must always be judged on the basis of Article 10 of the ECHR, also
if the privacy (and therefore Article 8 of the ECHR) of the alleged
victim is at stake, is perhaps even more important. This implies
that freedom of expression is the starting point. Since the Court
itself has described this case as a case with "Importance
1": "High importance, Judgments which the Court considers
make a significant contribution to the development, clarification
or modification of its case-law", it looks as if this judgment
will become the prevailing doctrine.