Published on 28 November 2022

SECOND SECTION

Application no. 53742/21 Y and Z against North Macedonia lodged on 1 November 2021 communicated on 11 November 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicants’ complaint about a breach of their privacy by a private TV station which published their personal data without their consent.

The applicants, who are transgender persons, instituted civil proceedings for damages against a TV station and the author and editor of a TV show broadcast on that station. They alleged that their private data (namely, Y’s photographs, personal medical data and phone number, their voices, the locations of their apartments, gender identity, sexual orientation, information about their sex life, the fact that at the time they worked as sex workers, and unauthorised recordings made inside the apartment of Z) had been revealed, without their consent, during a TV show dedicated to sexual work in the respondent State, on a TV station broadcasting on the national level. The applicants claimed that their voices and faces had not been properly distorted and that the combination of all the above information made it possible to identify them. They both argued that after the show, many people, including their families, had expressed disgust, shame and disappointment towards the applicants. Z also claimed that the day after the show was broadcast, she was evicted from her apartment.

The courts dismissed the applicants’ claims on two levels of jurisdiction. They held that the applicants had not submitted an expert opinion which would examine the CD (admitted as evidence) that contained a video of the disputed TV show and would establish which personal information of the applicants was shared and whether their voices and faces were properly disguised. According to the courts, such an opinion was decisive for their claims and the content of the TV show could not be assessed without it. It was not disputed that the recordings in Z’s apartment had been made by journalists in secret. Nonetheless, the courts held that the applicants’ data (namely, their photographs, phone numbers, and the location of Y’s apartment) had already been published online by themselves, which was how the journalists preparing the show had found out about them. Moreover, according to the courts, broadcasting the TV show had been in the public interest. The courts also noted that the applicants had not initiated any proceedings before the Personal Data Protection Directorate.

The applicants complain under Article 8 of the Convention that their privacy was violated and that their personal data was published without their consent, with no contribution to any debate of public interest.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicants’ right to respect for their private life, contrary to Article 8 of the Convention? In particular, did the State discharge its positive obligation to protect the applicants from the publication of their personal data in the media without their consent? In this context, did the domestic courts strike a fair balance between the applicants’ right to respect for their private life and the other parties’ right to freedom of expression, in line with the criteria established in the Court’s case-law (see, inter alia , Hájovský v. Slovakia , no. 7796/16, § 30, 1 July 2021, and the cases cited therein)?