Speculating on an individual's sexual orientation - violation of private life or freedom of expression?

In my post of 28th March I detailed the case of Paulina Rubio Dosamantes v Spain which concerns the complaint that media speculations about the applicant's sexual orientation - specifically that she is bisexual or homosexual - constitute an infringement of her right to respect for private life under Article 8 of the Convention. The applicant is a well known singer in Spain. Her complaint about speculation in three television programmes regarding her sexual orientation has already been considered by the Spanish courts. The domestic courts rejected her complaint that discussion of her sexual orientation adversely affected her 'honour' because homosexuality could not currently be understood as 'disgraceful'. Her privacy claim was also rejected because the applicant was said to have tacitly consented to the controversy over her sexual orientation and 'played' with it for promotion.

While the Court ruminates on the admissibility of Paulina Rubio's Article 8 complaint, it is worth thinking about another ECHR complaint that involved a 'pop star' and discussions of sexual orientation. In Sapan v Turkey, the ECHR considered a complaint by a publisher about the seizure and suppression of a book entitled 'Tarkan - star phenomenon' ('Tarkan - Yildiz olgusu'). The book, a partial reproduction of a doctoral thesis, contained a study of the nature and meaning of 'star' in Turkey and focused in particular on the well known singer Tarkan (Tarkan Tevetoğlu). In 2001, Tarkan petitioned the High Court of Istanbul to suppress the publication of the book on the basis that it created defamation of character. To support his claim Tarkan cited a number of passages from the book, the first of which was:
'(...) a-t-il les yeux maquillés (...) est-il homosexuel (...)' ('he has eyes made-up...is gay').
The High Court of Istanbul upheld the singer's request and copies of the book were seized. Mr. Sapan, the publisher, petitioned the High Court himself, requesting a lifting of the seizure because the book was the result of scientific analysis and sociological research and, as such, its publication was protected by Article 10 of the Convention. This request was denied and, after several iterations of the case in the domestic courts, the Court of Cessation concluded that the singer had suffered damage because the book addressed the singer's 'privacy' rather than his 'artistic personality'.
The principle question before the Court was whether the interference created with the publisher's right to freedom of expression was necessary in a democratic society. In its review, the Court noted that the book was a partial reproduction of a doctoral thesis and stressed the importance of academic freedom. It stated that the book was 'scientific' rather than a 'sensational' press account designed to satisfy the curiosity of a particular readership about the details of a strictly private celebrity life. Although the Court reiterated its settled view that contracting states have a margin of appreciation to determine when it is necessary in a democratic society to restrict freedom of expression, it found that the national courts had not taken sufficient care in examining the balance between the right to freedom to impart information and the protection of the reputation of others. In other words, the Court could not find evidence that the national courts had fully considered whether there were sufficient and relevant reasons for the seizure of the book.

The Court unanimously found that Mr. Sapan had suffered a violation of his Article 10 rights.

Sapan v Turkey does not answer the question asked in Paulina Rubio Dosamantes v Spain, namely: does suggesting someone is gay violate their right to respect for private life? This is because it does not contain an analysis of the proportionality of restricting Mr. Sapan's freedom of expression but, rather, notes that the domestic court's themselves failed to carry out the consideration of proportionality required by Article 10.Therefore, it does not tell us whether the publisher's Article 10 rights 'trump' the singer's Article 8 rights. However, one telling feature of the Sapan judgment is that (in line with the Court's wider case law) it emphasised that academic publications merit greater protection than mere 'sensational' press speculation. Might this help Paulina Rubio's complaint?

These cases are interesting because, in reducing the question of public discussion about an individual's sexual orientation to a contest between freedom of expression and privacy, they tend to miss the underlying reasons why public figures bring these complaints. The foundation of Paulina Rubio's complaint is arguably a desire to disassociate herself from the 'stigma' of homosexuality. In this sense, complaints such as these are the result of a wider homophobia in society and themselves contribute to sustaining the idea that suggesting someone is homosexual is insulting or damaging (one need only remember the singer Jason Donovan's successful libel case against The Face in the early 1990s to realize the longer history of this type of action). 

In Paulina Rubio Dosamantes v Spain a good outcome would be if the Court explicitly reiterated the view of the domestic Spanish courts that a discussion of the applicant's sexual orientation cannot adversely affect her 'honour' because homosexuality can not be understood as 'disgraceful'. Although this is often the point of media speculation - because journalists seek to use allegations of homosexuality to discredit individuals - it is counter-productive to combating homophobia to uphold an Article 8 claim because it gives credence to the view that merely suggesting someone is homosexual creates damage to their private life. Just as media speculation about an individual's heterosexuality should not be considered a violation of their private life, neither should speculating on whether someone is gay be considered to violate the 'intimate and vulnerable' sphere of private life which Article 8 protects.