FOURTH SECTION

DECISION

Application no. 37466/21 José António Paula SARAIVA against Portugal

The European Court of Human Rights (Fourth Section), sitting on 19 September 2023 as a Committee composed of:

Tim Eicke, President , Branko Lubarda, Ana Maria Guerra Martins , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 37466/21) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 July 2021 by a Portuguese national, Mr José António Paula Saraiva, who was born in 1948 and lives in Algés (“the applicant”) and was represented by Mr Pinto de Abreu, a lawyer practising in Lisbon;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the alleged breach of the applicant’s right to freedom of expression on account of his conviction for statements he made in a book.

2. The applicant was director of the Portuguese weekly newspapers Expresso , between 1983 and 2005, and Sol , between 2006 and 2015. In September 2016 he published a book of memoirs entitled “ Eu e os Políticos ” (Me and the Politicians) and subtitled “ O que não pude (ou não quis) escrever até hoje ” (What I could not (or did not want to) write up to now) and “ O livro proibido ” (The forbidden book).

3. The book was divided into chapters, each telling short stories about various Portuguese politicians. In the chapter about the former prime minister, J.S., the applicant wrote the following:

“I am going to make a parenthesis to talk about F.C. I met her at the Expresso (a Portuguese weekly newspaper), where she worked as an intern before moving to Elle (a Portuguese magazine). At that time, she was dating A.L., who also worked at the Expresso as a copy desk writer and lived at a colleague’s house, where F.C. often slept.

It turns out that A.L. had a fetish for photography (incidentally, he went on to become a freelance photographer) and dedicated himself to taking pictures of himself having [sexual] relations ( relações ) with his girlfriend. And he was not careful to hide the photos, he would leave them out to develop on top of the furniture. One day, the maid who was going to do the cleaning went to show the owner of the house a bunch of photographs that she had found and that she considered inappropriate to be scattered around the room.”

4 . By 31 October 2016 at least 20,000 copies of the book had been sold at a price ranging between 10 euros (EUR) and EUR 12.30.

5 . On an unspecified date, the Lisbon Civil Court dismissed a request lodged by F.C. to have the books recalled and their sale prohibited. On 23 February 2017, following an appeal by F.C., the Lisbon Court of Appeal ordered the printer to recall all available books from the market and the applicant to eliminate the impugned passages.

6. On 8 July 2020, following a criminal complaint and a claim for damages from F.C. and A.L., the Lisbon Criminal Court decided to convict the applicant on two counts of breach of private life under sections 192 § 1 (d), 40, 47 § 2, 71 and 77 § 2 of the Criminal Code. It sentenced him to 120 day-fines for each count, cumulated in a single penalty of 180 day-fines at a daily rate of EUR 30, making a total amount of EUR 5,400. The Lisbon criminal court also awarded EUR 15,000 to each claimant in respect of non ‑ pecuniary damage under sections 483, 494 and 496 of the Civil Code.

7. On 21 January 2021, following an appeal by the applicant, the Lisbon Court of Appeal decided to uphold the first-instance decision. It nevertheless reduced the civil compensation award to EUR 8,000 for each of the claimants. In its reasoning the Court of Appeal, following the first-instance decision and quoting the Court’s case-law, took the view that although freedom of expression is a fundamental value of a democratic society, it must be balanced with the right to privacy. Furthermore, it stated that the impugned information revealed by the applicant concerned the sexual and private life of F.C. and A.L. and that, even if F.C. could be considered a public figure because of her relationship with the former prime minister mentioned in the chapter in question, A.L. was not, and there was no pressing social or political interest that could justify, under the freedom of expression, the revelation of such facts. Lastly, the Court of Appeal stated that, even supposing the presence of some public, legitimate, and relevant interest in the revelation of those facts, there was no reason to identify F.C. and A.L. in the account.

8. As regards the number of day-fines applied and their rate, the Court of Appeal considered them in accordance with the legal criteria and the nature, seriousness, and consequences of the facts. As regards the amount of compensation, the Court of Appeal concluded that the damage caused by the applicant to F.C. and A.L. would be sufficiently compensated by a lower amount, establishing in this respect the amount of EUR 8,000 for each of the claimants.

9. On 25 March 2021 the Lisbon Court of Appeal dismissed the complaint lodged by the applicant against its decision.

10. Relying on Article 10 § 1 of the Convention, the applicant alleges that the judgment given against him by the domestic courts entails a violation of his right to freedom of expression.

THE COURT’S ASSESSMENT

11. The Court considers that there is no doubt that the domestic decisions amounted to an “interference” with the applicant’s right to freedom of expression as guaranteed by Article 10 § 1 of the Convention.

12. An interference contravenes Article 10 of the Convention unless it is prescribed by law, pursues one or more of the legitimate aims set out in Article 10 § 2 and is necessary in a democratic society in order to achieve those aims.

13. In the instant case the interference referred to above was “prescribed by law”, as it was based on the relevant provisions of the Criminal and Civil Codes for the protection of personal rights (see paragraph 5 above).

14. The interference with the applicant’s freedom of expression also pursued one of the legitimate aims referred to in paragraph 2 of Article 10 of the Convention, namely the protection of the private life of F.C. and A.L.

15. It remains to be ascertained whether the interference complained of was necessary in a democratic society.

16. The general principles established for assessing whether an interference with the exercise of the right to freedom of expression is “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well settled in the Court’s case-law and were summarised in Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016).

17. It should therefore be ascertained whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the right to respect for private life enshrined in Article 8. The criteria for balancing those rights are the following: whether the impugned assertions contributed to a debate of general interest; how well known the person concerned was and the subject of the report; the prior conduct of the person concerned; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and, lastly, the severity of the sanction imposed (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-95, 7 February 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 101-13, ECHR 2012, and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, §§ 74-77 and 89 ‑ 120, 27 June 2017).

18. In the instant case, the Court has no reason to depart from the conclusion reached by the domestic courts, considering the intimate nature of the revealed facts, the absolute lack of appearance of any public interest concerning them and the circumstance that the applicant, when writing the passages in question in his memoirs, was not even describing facts that he had personally witnessed. Moreover, the fact that F.C. had a relationship with the former prime minister had no relevance in this discussion, since the situation described had nothing to do with him but concerned, on the contrary, a relationship between F.C. and a third and not public person. As in other similar cases it has examined, the Court considers that the impugned passages of the book, the sole purpose of which was to satisfy the curiosity of a particular readership regarding the details of F.C.’s private life, cannot be deemed to contribute to any debate of general interest (see, mutatis mutandis, Campmany y Diez de Revenga and Lopez Galiacho Perona v. Spain (dec.), no. 54224/00, ECHR 2000-XII; Bou Gibert and El Hogar Y La Moda J.A. v. Spain (dec.), no. 14929/02, 13 May 2003; Von Hannover , cited above , § 103 and; Rubio Dosamantes v. Spain , no. 20996/10, § 34, 21 February 2017).

19. Lastly, regarding the sanctions imposed, it is recalled that any criminal sanction is capable of having a deterrent effect (see, among other authorities, Stoll v. Switzerland [GC], no. 69698/01, § 160, 10 December 2007). In the present case, the applicant was sentenced to pay a EUR 5,400 fine and EUR 8,000 in respect of non-pecuniary damage to each of the claimants. The Court considers that the domestic authorities acted manifestly within their margin of appreciation. The single penalty - a number of day ‑ fines established for the two offences together - was moderate, being in the middle of the range allowed for by the legal framework and not disproportionate, considering the intimate content of the facts at stake, the scale of the revelations and the damage caused. The daily rate appears to be moderate, and indeed the applicant did not claim that the amount was excessive compared to his financial means (compare Almeida Leitão Bento Fernandes v. Portugal , no. 25790/11, § 59, 12 March 2015).

20. Finally, the applicant argued that the interim measure applied (paragraph 5 above) should have been considered sufficient to protect the right to private life of F.C. and A.L. The Court does not agree with the argument. The main purpose of the interim measure was only, by its nature, to put an end to the book sales and to the continuing divulgation of the facts at stake and had no repercussion upon previous sales.

21. In these circumstances, the Court considers that the fine applied and the amount the applicant was ordered to pay in damages to the claimants were not excessive or capable of having a “chilling effect” on the exercise of his freedom of expression, even less so after noting that he had sold more than 20,000 copies of the book and that sales could continue once the impugned passage was removed (paragraph 5 above).

22. In view of the foregoing, the Court is satisfied that the domestic authorities struck a fair balance between the legitimate aim of the protection of the right to private life of F.C. and A.L. They based their decisions on an assessment of the facts, in line with the criteria defined by the Court’s case ‑ law, and on reasons which were relevant and sufficient. Thus, they did not overstep their margin of appreciation in relation to the subject matter. The fine imposed on the applicant, even if of a criminal nature, was not disproportionate to the legitimate aim pursued.

23. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 October 2023.

Crina Kaufman Tim Eicke Acting Deputy Registrar President