CASE OF FALUDY-KOVÁCS v. HUNGARY
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Georges Ravarani
5. The applicant was born in 1975 and lives in Budapest. 6. She is the widow of a well-known Hungarian poet, György Faludy. They married in 2002, and their relationship, partly due to a significant difference in age, as well as their life and work, were constantly the subject of widespread media coverage. They often appeared in the tabloids. 7. The applicant’s husband died in 2006. 8. On an unspecified date in 2008 an article was published in a daily newspaper, Blikk, based on an interview with the applicant, revealing that she wanted to have a child who would be a blood relative of both her and her late husband and have the same intellect and attitude as him. The applicant explained that she envisaged her own sister and her late husband’s grandson being the parents of that child. 9. Following some talks with the applicant, on 26 March 2008 Helyi Téma, at the material time the biggest weekly journal, republished the same story, adding that the late poet’s grandson had dismissed the idea of having a child with the applicant’s sister. The front page of the newspaper contained a photograph of the applicant with her late husband and the headline “Trampling on the memory of Faludy. The widow does everything for the limelight”. Despite a previous request by the applicant, the article made no mention of a book to be published on the applicant’s late husband. 10. Subsequently, in reaction to a complaint by the applicant, the newspaper published an additional article on the book under publication; however, it did not appear on the front page as the applicant’s had presumably wished. The applicant asked for a further article to be published but the newspaper declined. 11. Dissatisfied, the applicant lodged a civil action against the publisher of the weekly newspaper under article 78 of the (old) Civil Code, alleging a violation of her personality rights, in particular her right to reputation. She maintained that the headline published on 26 March 2008 had negatively affected her public image. She sought an injunction against any further infringement of her right to reputation, an apology from the publisher and compensation for non-pecuniary damage in the amount of 4,000,000 Hungarian forints (HUF – approximately 13,000 euros (EUR)). 12. According to the witnesses who gave evidence before the first-instance court, the applicant had been truly saddened by the way the article had presented her family plans, especially that her statements had been hurtful to the memory of her late husband. She had also received a lot of criticism from her acquaintances. In a judgment of 5 April 2009 the Budapest Regional Court granted an injunction against any further infringement, ordered a public apology and obliged the publisher to pay the applicant HUF 600,000 (EUR 2,000) in respect of non-pecuniary damage. The remainder of the applicant’s claim for compensation was dismissed. The court established the following: “..the private life of the plaintiff and her late spouse was previously at the centre of media attention ... György Faludy and the plaintiff have already shocked public opinion with the declaration of their love. It turned out that she seduced the poet from a man ... The poet-prince (költőfejedelem) happily introduced to the world his then yet unknown lover, who became his muse and who was 65 years younger than him. The Kossuth Prize winner and internationally recognised poet had a tendency to push the boundaries, openly admitted his homosexual adventures and love affairs, and held that taboos were to be dismantled. Therefore, when the country just began to digest and accept his relationship with Fanny, the poet accepted an offer from Penthouse magazine, which has since closed down, agreeing to be presented in the magazine in high-quality erotic pictures with his lover ... [The plaintiff] had even been subject of numerous hurtful and degrading remarks and attacks during György Faludy’s life. The media echoed that opinion, doubting her true feelings towards her husband, and some of the publications stressed that theirs was a marriage of convenience ... They planned to adopt a child during the poet’s lifetime, but since that plan failed, György Faludy came up with the idea of having a child through his son, but since his son was terminally ill, that plan could not go ahead either. ... ...the plaintiff’s idea can be said to be bizarre and eccentric, nonetheless, how she has spoken about childbearing does not, following the rules of formal logic, mean that she has trampled on her husband’s memory. Based on the witness statements and the role the plaintiff’s late husband played in public life, the court concluded that the applicant’s idea about childbearing was not contrary to the thinking of György Faludy...” 13. The Regional Court added that both the applicant and her late husband had unusual, provocative personalities and ways of thinking, and the statement according to which she had infringed her late husband’s memory did not correspond to reality and was unjustifiably hurtful. According to the court, statements in a front page headline constituted journalistic opinion, and were protected by the right to freedom of expression, as long as they were not devoid of any factual basis and did not amount to a blatantly humiliating or offensive value judgment. The court concluded that the statement that the applicant did everything for the limelight had not infringed her personality rights, whereas the statement that she had trampled on her husband’s memory had infringed her right to reputation and dignity (33.P.22.472/2009/16.). 14. On 8 December 2011 the Budapest Court of Appeal reversed the previous judgment finding an infringement of the applicant’s reputation and dismissed her action in its entirety. The court reiterated the Constitutional Court’s case-law on the different fundamental rights at stake, pointing out that even shocking, disturbing or inaccurate opinions were protected by the right to freedom of expression and were not susceptible of proof. It also stressed that statements should be assessed in context and with regard to their background. The court explained in detail that the applicant and her husband had triggered controversial reactions and “everyday people with an average mindset” would have had an opinion on their relationship and marriage. It held that the headline was not a statement of fact but a value judgment expressed in connection with the applicant’s own “peculiar” statements. According to the court, the main issue at stake was whether, in the light of the applicant’s own conduct “diverging from the widelyaccepted social and ethical norms”, the statement could be regarded as unreasonably hurtful and humiliating. The court also found that the headline could not have infringed the applicant’s reputation since her own statements were irrational and undignified, putting György Faludy’s grandson in an embarrassing situation. 15. The applicant lodged a petition for review with the Kúria. In a judgment of 12 September 2012, the Kúria endorsed the finding of the second-instance court that the headline did not constitute a statement of fact but a value judgment concerning the unusual manner in which the applicant intended to start a family. Since it was not devoid of factual basis, it could not be considered humiliating, hurtful or offensive and as such had not infringed the applicant’s dignity. The court nonetheless stated that it was irrelevant whether the applicant’s previous unconventional conduct justified the value judgment (Pfv.IV.20.710/2012/5.).