Monday, 27 February 2017

Commenting on the sexual orientation of a pop singer violates Article 8 ECHR - Rubio Dosamantes v Spain

The European Court of Human Rights has issued its judgment in Rubio Dosamantes v Spain in which it held that Spanish authorities had failed in their positive obligation to protect the applicant - a pop singer who is famous in Spain - from remarks made on television about her, which amounted to a violation of her right to respect for her private life.

The facts

The case was communicated in 2013, and I wrote about it here at the time. 

Ms Rubio complained about, amongst other things, speculation in the media regarding her (homosexual) sexual orientation on the basis that this infringed her right to honour and to privacy. 

The domestic courts rejected this claim on the basis that homosexuality should no longer be considered shameful and Ms Rubio herself had tacitly consented to the debate on the subject. 

The Court's consideration

The Court, in considering Ms Rubio's complaint, noted that in various television programmes, frivolous comments had been expressed about certain aspects of her private life, mainly in respect of her sexual orientation (or her allegedly stormy relationship with a male partner, including the claim that she had humiliated him and encouraged him to take drugs).

The Court reiterated that journalists have to show "prudence and precaution" when talking about certain matters relating to private life. Therefore, the Court stated, journalists cannot spread unverified rumours or broadcast random comments on any possible aspect of a person’s life. Rather, as the Court stated, the national authorities had a duty to assess the TV programmes in question, in order to distinguish between and to weigh in the balance those matters which were intimately part of Ms Rubio’s private life and those which might have had a legitimate public interest.

The Court concluded that the national authorities had not carefully weighed those rights and interests in the balance, but had merely taken the view that the comments in question had not impugned Ms Rubio’s honour. They had not examined the criteria to be taken into account in order to make a fair assessment of the balance between the right to respect for freedom of expression and the right to respect for a person’s private life. The domestic authorities had therefore failed in their positive obligations and this amounted to a violation of Article 8.

A question...

I make no comment on the correctness of the judgment in this case. I do, however, ask a question: to what extent is it acceptable for the Court to extend the protection of the Convention to a "celebrity" who does not wish her sexual orientation to be discussed in the popular media, when it will not extend the protection of the Convention to gay asylum seekers in European states attempting to resist being forcibly returned to countries outside of Europe that criminalise same-sex sexual acts? The Court tells such asylum seekers that it is their responsibility, when returned to their country of origin, to be 'discrete' about their sexual orientation in order to avoid criminal sanction. In other words, it is for European states to protect individuals, such as Ms Rubio, from media discussion of their sexual orientations, but it is for asylum seekers to shoulder full responsibility for any interest taken in their sexual orientations by the legal systems of their countries of origin. Perhaps, to quote Judge Power-Ford, "[s]omething doesn’t fit"?
 

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