FIFTH SECTION

DECISION

Application no . 75201/11 Catarina DAHLBERG against Sweden

The European Court of Human Rights ( Fifth Section ), sitting on 9 December 2014 as a Committee composed of:

Boštjan M. Zupančič , President, Helena Jäderblom , Aleš Pejchal , judges,

and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 26 November 2011 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Catarina Dahlberg, is a Swedish national, who was born in 1965 and lives in Tullinge , Sweden. She was represented before the Court by Mr P. Bratt and Mr J. Södergren , lawyers practising in Stockholm.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1999 the applicant claimed compensation from her insurance company for a whiplash injury caused by a car accident. The insurance company questioned her statements and engaged a security company. Two detectives from the security company carried out an investigation which included secretly following and observing the applicant for more than 160 hours. The surveillance included filming the applicant on various occasions for approximately three hours. The filmed material was shortened to a one and a half hour film which was presented to the applicant at a meeting with the insurance company in January 2000. The surveillance had been carried out during the daytime and while the applicant was, inter alia , driving her car, shopping and going to restaurants and libraries. Moreover, she was observed and filmed during visits to two private horse stables situated in areas where she had not expected to be observed. The surveillance and filming were carried out from places where the detectives had a legal right to be.

The insurance company reported the applicant to the police for insurance fraud and after a preliminary investigation the applicant was indicted for attempted gross fraud ( försök till grovt bedrägeri ) concerning the insurance claim and fraud ( bedrägeri ) concerning claims for the publicly funded sickness allowance. In the criminal proceedings the prosecutor referred to the investigation carried out by the insurance company, including the filming. On 24 October 2003 the District Court ( tingsrätt en ) in Stockholm acquitted the applicant and, upon appeal by the prosecutor, Svea Court of Appeal ( hovrätt en ) upheld the acquittal. The appellate court noted, inter alia, that the insurance company had not carried out the investigation according to the procedures for preliminary criminal investigations set out to guarantee the suspect ’ s rights. In view of this, and of the fact that the insurance company ’ s officials were not obliged to follow the rules of objectivity, as police and prosecutors are, the court held that the statements made by the applicant to the insurance company officials could not be afforded the same value as if she had given the statements during a preliminary criminal investigation. In conclusion the court held that the prosecutor had not been able to prove that the applicant had tried to mislead the insurance company concerning her ability to work.

On 12 June 2006 the applicant and the insurance company resolve d the claims for compensation through a friendly settlement which was confirmed in a judgment by the District Court.

Subsequently, the applicant brought a claim for damages against the insurance company, arguing that the company ’ s actions had violated her integrity and privacy or, alternatively, had violated Article 8 of the Convention. First, the applicant claimed that the insurance company had instigated and aided the two private detectives to molest her by filming and monitoring her, which she had learned about at the meeting with the insurance company, a criminal offence described in Chapter 4 section 7 of the Penal Code ( Brottsbalken ). She claimed that the offence had seriously violated her freedom, peace and honour and therefore the insurance company was liable to pay damages to her in accordance with the Tort Liability Act ( Skadeståndslagen ). She further claimed that the provision on molestation should be interpreted in conformity with Article 8 of the Convention. Second, the applicant claimed that the insurance company had acted against its contractual requirement of loyalty by initiating the monitoring of her which was disproportionate and furthermore in conflict with Article 8 of the Convention as well as in conflict with the provisions set out for authorisation of surveillance companies since the monitoring of the applicant had been pursued with the purpose of investigating a criminal offence which was reserved for the police.

A question concerning the direct applicability of the Convention was brought directly before the Supreme Court ( Högsta domstolen ). On 29 October 2007 the Supreme Court found that the Convention did not impose duties on individuals. The court went on to consider that even if the State may have positive obligations under the Convention, an individual could not be obliged to compensate another individual directly on the basis of the Convention, having regard to the rule of law and the principle of predictability.

Subsequently, the case was decided on the merits by the District Court, which on 22 October 2008 rejected the applicant ’ s claim, after a hearing where the applicant and witnesses were heard. First, the court found that there was nothing to show that the applicant had in fact, as she had claimed, noticed that she had been under surveillance, which in the court ’ s view was a necessary condition for the provision on molestation to be applicable. Furthermore, the court held that the provision could not, as the applicant had argued, be interpreted in an extensive manner, since that would be in conflict with the principle of legality. Moreover, the court noted that the assignment given by the insurance company to the security company had been to find out about the applicant ’ s address, whether she had a vehicle, whether she had a horse, what she did during the daytime and whether she seemed to suffer or be hindered in her daily activities and routines. The District Court found that there was nothing to show that the investigation had not been carried out in accordance with the given assignment or that the purpose of the investigation had been any other than that stated by the insurance company. It was also noted that one of the detectives who had carried out the surveillance had confirmed that the investigation had not been pursued with the aim of investigating a crime. Thus the court found that the surveillance had not been unlawful and that the purpose of the surveillance had been to investigate the applicant ’ s claim for compensation. The court also found that the applicant ’ s claims did not lead to the conclusion that she had suffered a violation of her integrity which she would not be required to tolerate. Furthermore, the court considered that not even a Convention-friendly interpretation of the domestic law could lead to a judgment in the applicant ’ s favour .

The applicant appealed to the Court of Appeal which, on 12 May 2010, after a hearing where the applicant and most witnesses were heard again, upheld the lower court ’ s judgment in full. The appellate court found that it had not been established that the surveillance had been disproportionate in relation to the infringement of the applicant ’ s private life or that the measures had otherwise amounted to a violation of the integrity of the applicant which would result in liability for the insurance company. The appellate court further considered that the insurance company had had a legitimate interest in investigating the applicant ’ s claim for insurance payments and that the applicant had not established that the investigation had been pursued against their contractual obligations or that it had been unlawful in any other way.

The applicant appealed to the Supreme Court which, on 6 May 2011, refused leave to appeal.

B. Relevant domestic law and practice

According to the Swedish Penal Code ( Brottsbalken , 1962:700 ), Chapter 4, section 7, a person who physically molests, or by discharging a firearm, throwing stones, making loud noise or other reckless conduct molests another, shall be sentenced for molestation ( ofredande ) to a fine or imprisonment for at most one year.

Photographing or filming someone could fall under this provision but only if the person being filmed notices the photographing or filming at the time when it is carried out. On 1 July 2013 a new criminal offence was introduced in the Penal Code, Chapter 4, section 6a, which prohibits “offensive photographing” ( kränkande fotografering ). Thus, since that date it is prohibited to take pictures of or film another person secretly if the picture or film is taken in a private home or in a bathroom, changing room or similar space, unless it is done with the person ’ s consent or if otherwise justified.

COMPLAINTS

Relying on Article 8 of the Convention, the applicant complained that she had been kept under surveillance by the detectives employed by the insurance company, which constituted an unjustified interference with her right to respect for her private life. She further argued that the filming and surveillance did not have sufficient support in national law and thus were in conflict with the requirement of lawfulness. In any event, she claimed that the measures were disproportionate. She also claimed that the national legal order did not provide her with a sufficiently effective national remedy, contrary to Article 13 of the Convention.

THE LAW

The applicant alleged that the surveillance by detectives employed by the insurance company had infringed Article 8 of the Convention, which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 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 Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. ( X and Y v. the Netherlands , 26 March 1985, Series A no. 91, and Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013).

The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State ’ s obligation will depend on the particular aspect of private life that is at issue (see, for example, von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 104, 7 February 2012).

In the present case, the applicant was filmed from a distance by detectives hired by an insurance company. The filming was carried out from places where the detectives had a legal right to be positioned. It took place without the applicant noticing the filming and partly in situations where she had no reason to expect to be filmed.

The applicant has argued that such secret filming did not have support in national law and thus was in conflict with the requirement of lawfulness. However, since the filming was carried out not by the State but by a private entity, the question which should be determined by the Court is whether respect for the applicant ’ s private life entails a positive obligation on the State to protect her against such filming and, if so, whether the State has met its positive obligation under Article 8 in that respect.

T he Court observes that, at the time when the secret surveillance and filming took place, the act of secretly filming another person was not criminal even if, in theory, filming someone without permission could constitute “ molestation ” , provided that the filming was noticed by the person being filmed. The penal provisions concerning “ breach of dom estic peace ” or, with regard to the handling of images, “ defamation ” could also in theory have been applicable. As mentioned above, new legislation designed to cover specific cases of covert filming has been adopted in Sweden and entered into force on 1 July 2013. However, the act of filming someone from a distance and under circumstances such as in the present case would not be covered by the new provision on offensive photographing.

Thus, while in the present case it was not possible to hold the detectives responsible under criminal law, there was a civil remedy available to the applicant of which she also made use, even if her claims for damages were rejected after they had been tried by three judicial instances, of which two tried the case on the merits. The Court finds that in the particular circumstances of the present case, where no essential aspects of the applicant ’ s private life are at issue, the level of protection offered to her through the civil remedy must be considered satisfactory. The Court further notes that the domestic courts analysed the secret surveillance, which included secretly filming the applicant for approximately three hours, and found that it could not be considered as molestation, nor was it unlawful or against any contractual obligations between the parties. Moreover, even though the domestic courts held that there was little scope to award the applicant compensation based solely on the Convention, after the Supreme Court had given a decision on this matter, it carried out an analysis of the competing interests of the insurer and the applicant. In this assessment the domestic courts found that the insurance company ’ s investigation had been proportionate, noting that the surveillance had been carried out during the daytime and that the filming had been done when the applicant was in public spaces or outside. Moreover, the filming of the applicant during her visits to the stables had been conducted only from areas where the security company had a right to be. In particular, the fact that the insurer had a need to verify whether the applicant ’ s claim for compensation was correct or fraudulent was found to be a justifiable aim. On that basis, they considered that the insurance company was entitled to conduct investigations, even without the applicant ’ s knowledge, to achieve the aim pursued (see , Verliere v. Switzerland [ dec. ], no. 41953/98, ECHR 2001-VII).

Having regard to all of the above, the Court finds that the national courts did strike a fair balance between the competing interests. It follows that this complaint is manifestly ill ‑ founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

As concerns the applicant ’ s complaint under Article 13 of the Convention, the Court notes that since the complaint under Article 8 of the Convention has been declared manifestly ill-founded, the applicant has no arguable claim under this provision. Consequently, this complaint must also be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Boštjan M. Zupančič Registrar President