CASE OF BOGOMOLOVA v. RUSSIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1978 and lives in Berezniki, Perm region, together with her son, born in 2001. She is a single mother. 6. At the material time the applicant was teaching physical education in a secondary school in Berenzniki. 7. In November 2007 the applicant learnt that a photograph of her son had been published on the cover page of a booklet prepared by the Centre for Psychological, Medical and Social Support of the Usolskiy District, Perm region (“the Centre”), entitled “Children need a family”. 8. The booklet consisted of six pages, including the cover page. The boy’s photograph occupied the major part of the cover page and showed his face. Above the photograph there was a slogan “Children need a family”. At the bottom of the cover page, just under the photograph were the words: “Centre for Psychological, Medical and Social Support, town of Usoliye”. The second page contained two more photographs of other children, with citations from the Convention on the Rights of the Child and the Russian Family Code. The third page was headed “Forms of replacing family care” and presented the various arrangements: adoptive family, tutorial family, foster home and others. The remaining pages informed the readers about the creation in the district of the Municipal Centre for Psychological, Medical and Social Support, the role of which was to protect orphans and assist families in adopting them. They explained what kind of support and advice families could seek in the Centre and how they could help orphans. On the last page the following was written: “If you wish to save a child from loneliness and give him a hearth and home, come to us!” 9. The applicant alleged that she had not been informed about the booklet, let alone asked for authorisation for a photograph of her son to be published. 10. In November 2007 the applicant asked the local department of the interior and the prosecutor’s office to carry out an investigation into the unauthorised publication of her son’s photograph on the booklet. 11. In December 2007 the department of the interior replied that there were no grounds to institute criminal proceedings. 12. On 9 January 2008 the district prosecutor informed the applicant that the booklet had been prepared and published by a publishing company, A., at the request of the Centre. In total, 200 copies of the booklet had been published. The photograph of the child had been placed on the booklet by Mr P., who had been engaged by that company to prepare the layout of the booklet and who had found the photograph of the applicant’s son on the Internet. It was impossible to establish from which website the photograph of the child had been taken. The prosecutor advised the applicant to bring court proceedings to protect her rights. 13. The applicant did not lodge any judicial appeal against those replies. 14. In March 2008 the applicant instituted civil proceedings against the Centre before the Usolskiy District Court, Perm Region (“the District Court”) on her own behalf and on behalf of her minor son. 15. In her statement of claim the applicant complained that her and her son’s honour, dignity and reputation had been damaged by the unlawful publication of her son’s photograph in a booklet calling for adoption. In particular, the photograph had been published without her authorisation and knowledge. The booklet had been distributed in various organisations in the town of Usoliye and in the Usolskiy District, Perm region (libraries, hospitals, police departments) and had provoked a negative attitude towards her and her son on the part of her colleagues, neighbours and those close to her. People thought that she had abandoned her son. The boy had become a victim of mockery in the kindergarten. The publication of the photograph had also affected her honour and dignity and her reputation as a schoolteacher. She requested that the court, with reference to Articles 151 and 152 of the Russian Civil Code (see Relevant domestic law and practice below), award her non-pecuniary damages and order the publishing company to apologise for the publication of the photograph. 16. On 23 April 2008 the District Court held, with the applicant’s consent, that the Centre was not a proper respondent in the case and that the claim should have been made against the publishing company and Mr P. The Centre was invited to take part in the proceedings as a third party. 17. The publishing company contested the applicant’s claims. It submitted that the material which had been presented to the court showed that a certain Mr Sh. had taken the photograph of the applicant’s son with the knowledge of the applicant. Mr Sh. had not informed the applicant of his intentions or the ways in which the photograph might be further used. Nor had he received any written authorisation from the applicant for its use. Mr P., who had been engaged by the company for the preparation of the layout of the booklet, had found the photograph on the Internet and placed it on the cover page of the booklet. 18. The publishing company considered that it had not been obliged to verify whether prior consent had been received for publication of the photograph in the booklet for two reasons. First, it was not responsible for the actions of Mr P., who had been working for the company on a contractual basis. Secondly, under Article 152.1 of the Civil Code (see Relevant domestic law below), consent to the use of a photograph was not required when the image was being used in the interests of the State, or in social or other public interests. By ordering the booklet, the Centre had been pursuing social and public interests and calling for mercy to be shown to orphans. The company concluded that the damage had been caused to the applicant by Mr Sh. and, therefore, the company should be exempted from liability for damage. 19. Mr P. submitted to the court that in 2004 he had gone travelling together with his friend Sh., who was a photographer. Sh. had openly taken photographs of other tourists, including a photograph of the applicant’s son. After their return, Sh. had sent him electronic copies of those photographs and since that time they had been saved in his computer. In 2007 he (Mr P.) had been temporarily working for the publishing company and had been asked to prepare the layout of the booklet. The text and some photographs had been provided by the Centre. He searched in his computer for more photographs to be placed in the booklet and saw the picture of the applicant’s son, which seemed to fit the booklet well. He therefore placed it on the cover page. He did not know who the boy on the photograph was. 20. The representative of the Centre, acting as a third party, submitted that the use of the photograph of the applicant’s son had not been agreed with the Centre. He also submitted that the booklet did not call for adoption; it was intended to provide information about the Centre. He replied to a question put by the court that after publication of the booklet, a number of people had called the Centre and asked whether it was possible to adopt the child whose photograph was on the cover page of the booklet. 21. It appears from the record of the court hearings that the applicant’s representative, G., submitted to the court that it had been established that the photograph of the applicant’s son had been used on the booklet without his parent’s consent, contrary to the requirements of Article 152.1 of the Civil Code. That provision was concordant with the provisions of the European Convention on Human Rights (“the Convention”) protecting private and family life. The publication of the photograph in the booklet constituted unlawful interference with the applicant’s private life and therefore the publishing company was under an obligation to pay compensation for nonpecuniary damage sustained by the applicant. 22. The publishing company contested the application of Article 152.1 of the Civil Code in the case and considered that the applicant’s consent to the publication of her son’s photograph had not been required. 23. On 20 June 2008 the District Court examined and dismissed the applicant’s claims. The judgment consisted of a summary of the submissions of the parties and the third party, a summary of the relevant domestic law, a summary of the witnesses’ submissions and other evidence examined by the court, and several paragraphs of conclusions. In particular, the District Court held as follows: “... The court has established that the honour, dignity and professional reputation of the plaintiff were not affected by the publication of the booklet with the photograph of the plaintiff’s son. Thus, all witnesses submitted that they did not have any hostile feelings towards Mrs Bogomolova, the attitude [towards Mrs Bogomolova] of all those questioned [in the court hearing] remained the same: friendly, amicable; they were not aware of any instances of insults, reproaches in respect of the plaintiff. In the subjective view of the witnesses, the booklet in itself had a positive scope. The plaintiff’s professional reputation was not affected by the publication of the booklet in any way, since the plaintiff had provided the court with positive references from her workplace, where her pedagogical competences were highly appreciated. The content of the booklet had a positive scope aimed at providing information, did not contain any defamatory details; the photograph on the booklet did not have any defects, and the text in the booklet did not contain any defamatory details either. None of the information in the booklet indicated that defamatory information had been disseminated; it did not diminish the honour, dignity and reputation of Mrs Bogomolova or of her minor son. Therefore, the evidence submitted [to the court] has demonstrated [that the booklet had] a strictly value character, and did not contain any defamatory details, diminishing the plaintiff’s and her son’s honour, dignity and reputation in the public’s opinion and the opinion of certain individuals. To make negative assumptions in respect of the booklet with the photograph of the plaintiff’s son on the front page amounts to an individual value judgment, which has not been included in the content and meaning of that information booklet. The court takes into account that on several occasions in 2004 the plaintiff authorised Mr Sh., a photographer familiar to her, to take photographs of her son. Sh. then forwarded the photographs to painter Mr P., who [in his turn] then placed [one of] the photograph[s] in the booklet. Mrs Bogomolova did not place any restrictions or conditions on the use of those photographs, did not seek to find out what had happened to those photographs. In addition, it follows from witness statements that after publication of the booklet, the plaintiff showed it to persons around her and at her workplace and annotated it in an emotionally skewed way, and thus disseminated false information about herself and her son with reference to the photograph [on the booklet]. ... Taking into account that it has not been established in the court hearing that there was any information discrediting the honour, dignity and reputation of the plaintiff and her minor son, her claims of compensation for non-pecuniary damage should be dismissed. The court also considers that the plaintiff’s claims concerning the imposition of an obligation on the defendant to provide public apologies in the SMI [mass media] ... should be dismissed ...” 24. On 25 June 2008 the applicant resigned from her job. 25. In an appeal against the judgment of 20 June 2008 the applicant submitted, in particular, that in taking its decision the District Court had not applied the provisions of Article 152.1 of the Civil Code of the Russian Federation concerning the protection of one’s image or the provisions of Article 8 of the Convention. She argued that in the absence of parental consent to the use of her son’s photograph, her claim should have been granted in accordance with the above provisions. She expanded on her position with the following arguments. 26. The booklet had been distributed in several towns in the Perm region, including Usoliye, where her parents lived, and Berezniki, where she and her son lived. She had worked for a long time in those towns and a lot of people knew her and her family. After seeing her son’s photograph on the booklet, people who knew her, including the parents of her pupils, thought that she could no longer take care of her son because she had been deprived of her parental rights. She had had to explain to her neighbours, friends and colleagues that her family was doing well and that her son was living with her. Since the publication of the booklet, children in the kindergarten had started calling her son “little vagrant” and “poor orphan”. She had been obliged to quit her job because of comments made by the parents of her pupils. The booklet provoked a feeling of pity towards children abandoned by their parents and at the same time it aroused feelings of indignation towards their parents. 27. On 19 August 2008 the Regional Court upheld the decision of 20 June 2008, finding it lawful and duly reasoned. Regarding the applicant’s argument about the District Court’s failure to examine her claims under Article 152.1 of the Civil Code, the Regional Court held that the court had taken a decision on the claims as they had been submitted by the applicant, in accordance with Article 196 § 3 of the Code of Civil Procedure (see Relevant domestic law and practice below). The applicant’s claims were based on the infringement by the defendants of her right to honour, dignity and reputation. She had not raised any claims on the grounds contained in Article 152.1 of the Civil Code. 28. By a judgment of 20 January 2009 the Justice of Peace of the Bereznikovskiy Circuit granted the Centre’s claim for recovery from the applicant of the legal costs it had incurred when it had taken part in the libel proceedings as a third party, in the amount of 5,200 Russian roubles.