ICCJ - 325/10 February 2022
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| ICCJ - 325/10 February 2022 | |
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| Court: | ICCJ (Romania) |
| Jurisdiction: | Romania |
| Relevant Law: | Article 82 GDPR Article 85 GDPR Article 7, Law 190/2018 Artile 8 and 10, European Convention on Human Rights |
| Decided: | |
| Published: | 22.02.2022 |
| Parties: | |
| National Case Number/Name: | 325/10 February 2022 |
| European Case Law Identifier: | |
| Appeal from: | Tribunal of Bihor 161/C 4.12.2020 |
| Appeal to: | Appealed - Confirmed Curtea de Apel Oradea 698 of 26.05.2021 |
| Original Language(s): | Romanian |
| Original Source: | The High Court of Cassation and Justice of Romania (in Romanian) |
| Initial Contributor: | Diana Rosu |
The Romanian Supreme Court held that, pursuant to Article 85 GDPR, the freedom of expression and public interest override the individual rights of private life in the case of a publicly known person, when the data involved (name and image) are fairly neutral and have previously been made public.
English Summary
Facts
A public person (the data subject) sued two companies (the controllers) after they published an article about them without consent, including their name and a picture from their father's funeral. The data subject claimed that the controller's had to pay them €50,000 for the non-material damages that they suffered because their data was made publicly available, affecting their private and professional life.
The court of first instance dismissed the claim. The Court found that the data subject was a locally known public figure, because of their professional activity and involvement in public projects. The data subject owned, the biggest shopping centre in the area and was mentioned in several national and international articles. Therefore, the Court held that the general interest, the freedom of expression and the freedom of press and journalism overrode the data subject's right to privacy pursuant to Article 85 GDPR and Article 7 of Law 190/2018[1] (the Romanian implementation of the GDPR). As such, the case was considered to be outside the scope of GDPR.
The data subject appealed this decision, but the court of appeal rejected it and declared the appeal unfounded. The data subject then appealed the decision at the Supreme Court. The data subject argued (1) that there was a lack of concrete reasoning on their criticism of the use of their personal data without consent.
In addition, (2) that the decision was based on the fact that they were a public person, which they were not. The data subject stated that they did not make any public appearances, for over ten years, and did not have social media. They followed by stating that an entrepreneur is not the equivalent of a public person.
Last, the data subject claimed (3) that the journalistic activity carried out by the controllers did not fall within the limits of Article 7 of Law 190/2018. The Court of Appeal, therefore, misinterpreted that legal provision.
Holding
The Supreme Court held that the appeal was unfounded.
First, it noted that the Court of Appeal did address their critisism on the lack of consent. The Court of Appeal found that the photograph published was neutral, contained no privacy-sensitive elements, was small and had previously been used in the national and international press (thus in the public domain). Therefore, both the picture and the data subject's name were data which has been previously made publically available and consent was not necessary.
In addition, the Supreme Court held that the Court of Appeal rightfully confirmed that the data subject was a public figure. They were is an important businessperson who owned and managed, the largest and oldest shopping mall in the area. The company they own was also involved in various public projects. Therefore, the Supreme Court held that their protection of privacy and data protection rights were weaker.
Last, the Supreme Court confirmed the Court of Appeal's interpretation of Law 190/2018. According to Article 7, to balance the right to protection of personal data, freedom of expression and the right to information, processing for journalistic purposes may be carried out "if it concerns personal data which have been manifestly made public by the data subject or which are closely linked to the data subject's status as a public person or to the public nature of the facts in which he or she is involved." The Supreme Court held that this exception was applicable to the case at hand, since the facts presented were of a public nature, of general interest, and closely linked to the public status of the data subject. The Supreme Court noted that the data subject failed to observe that this exception is provided for not only where the data has been manifestly made public by the data subject, but also where the facts described are of a public nature and are closely linked to the data subject's status as a public person.
As such, the previous courts correctly found that the sanctions of the Regulation on the protection of individuals with regard to the processing of personal data are not applicable.
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English Machine Translation of the Decision
The decision below is a machine translation of the Romanian original. Please refer to the Romanian original for more details.
Subject content: Civil law. Obligations. Civil liability
Alphabetical index: journalist
press article
subject of public interest
public person
personal data
Law no. 190/2018, art. 7
According to EU Regulation no. 679/2016, no personal data (including the name and image of the person, according to art. 4 points 1 and 2) can be processed, i.e. brought to the public's attention, without the consent of their holder, but nevertheless, the European legislator established through the Regulation that the member states can adopt legislation at the national level that provides for such exceptions for the journalistic field.
At the national level, the Romanian legislator adopted Law no. 190/2018, which regulated the matter of personal data protection, focusing on the issue of personal data processing by journalists in art. 7, according to which in order to ensure a balance between the right to the protection of personal data, freedom of expression and the right to information, processing for journalistic purposes or for the purpose of academic, artistic or literary expression can be carried out, if it concerns personal data which have been openly made public by the person concerned or which are closely related to the quality of public person of the person concerned or to the public nature of the facts in which he is involved.
Thus, as the plaintiff has the capacity of a public person, which is important from the perspective of art. 7 of Law no. 190/2018 to analyze whether the act of using his name and image without his consent is illegal or not, from the perspective of the Regulation and how the facts presented in the incriminated article are circumscribed to a public subject of general interest, being closely related to the quality of the public person of the plaintiff, it was correctly found that the sanctions of the Regulation on the protection of natural persons with regard to the processing of personal data and on the free circulation of this data and its application law are not applicable.
I.C.C.J., Civil Section I, decision no. 325 of February 10, 2022
I. The circumstances of the case
1. The object of the case
Through the summons request, registered at the Bihor Court on 3.09.2020, the plaintiff A. requested the court, contrary to the defendants B. and SC C. SA, pursuant to art. 1349, art. 1357 et seq., art. 1373 et seq., art. 1381 et seq., art. 58, art. 71, art. 72, art. 73, art. 74, art. 77 and art. 252 et seq. Civil Code, art. 82 of EU Regulation no. 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (GDPR Regulation), the engagement of liability civil torts and obliging the defendant 1, jointly with the defendant 2, to pay moral damages, in the amount of 50,000 euros for the reparation of the non-pecuniary damage caused to the person A. through the use by the journalist B. of his name and image (photo ) in the content of an article belonging to the C. SA publication, without obtaining its prior consent.
2. Judgment of the Bihor Court, Section I civil
By sentence no. 161/C of 4.12.2020, the Bihor Court - Civil Section I rejected the action filed by the plaintiff A., in opposition to the defendants SC C. SA and B.; forced the plaintiff to pay the defendants the sum of 1190 lei, court costs.
3. Decision of the Oradea Court of Appeal, Civil Section I
By decision no. 698 of 26.05.2021, the Oradea Court of Appeal - Civil Section I rejected, as unfounded, the appeal declared by A., in contradiction with the defendants SC C. SA and B. against civil sentence no. 161/C/ 2020, pronounced by the Bihor Court and obliged the appellant A. to pay to the respondent SC C. SA the sum of 1785 lei, as court costs in the appeal.
4. The appeal formulated in the case
Against decision no. 698/2021, issued by the Oradea Court of Appeal - First Civil Section, plaintiff A declared an appeal.
In the content of the appeal memorandum, based on the provisions of art. 483 et seq. of the Civil Code, the appellant claimed that the appeal court did not rule on the criticism regarding the non-analysis of one of the illegal facts complained of in the summons request, the reason being incidental of scrapping provided by art. 488 point.5 C.proc.civ., by reference to art.477 of the same normative act, in violation of the tantum devolutum quantum apellatum principle, the court of appeal not ruling on all the criticisms with which it was vested.
Considers that the action concerned two illegal acts in connection with the use of the plaintiff's name and image in the article created/hosted by the two defendants, respectively defamation, through references to the person of the plaintiff/association of the plaintiff's person with alleged illegal acts and the use of the name and image without the plaintiff's consent.
It shows that, regarding the illegal act of using the plaintiff's name and image for the purpose of defaming him, by affecting the person's dignity, both from a professional and personal point of view, of family life, by using an image of his person from a funeral, intimate, family event, the first court did not rule at all, lacking any analysis of the violation of the defendants' obligation to respect the non-patrimonial rights of the appellant. It mentions that the defamatory information claimed in the court's preliminary application referred to the association of the appellant with facts of alleged non-compliance with administrative acts in the field of construction or of alleged pressure on an authority to modify its issued administrative acts.
He claims that the first court only analyzed the fact of using the appellant's name and image without his consent, and the criticism formulated in the grounds of appeal regarding this aspect was not analyzed in the appealed decision, the considerations of the decision exclusively referring to the application of EU Regulation no. 679/2016, without a analysis of the publication of defamatory information about the person of the appellant.
It shows that the lack of any ruling by the court of appeal on these issues leads to the prejudice of the appellant's rights, both procedural and substantive, given that they do not receive any ruling.
The appellant shows that there is a lack of concrete motivation regarding the criticism regarding his lack of acceptance for the use of the name and image.
He claims that the decision is unmotivated in the aspect of not ruling on some criticisms regarding the wrong qualification as a public person, related to the incidence of the provisions of EU Regulation no. 679/2016. Considers that through the appeal he showed that, wrongly, the first court concluded that his person has the characteristics of a public person, with the consequence that the protection offered to the appellant regarding his private life and, in particular, the right to the image, is one restricted considering that until the date of publication of the article, the year 2020, the appellant was a person who had not made any public appearance for over 10 years; it cannot be considered that the notoriety enjoyed by his father is automatically transmitted to the appellant, and the quality of an entrepreneur is not equivalent to the notion of a public person. It states that these arguments were not taken into account by the court of appeal, and the qualification given by the court to the quality of a public person, in relation to these criteria, relates to the essence of establishing a licit or illicit public communication of the respondents-defendants, by the article referred to by action, since even the court accepts that a private person is entitled to have his right to the image protected, in the sense requested by the introductory action, respectively by the need to have requested his consent.
It states that, under the aspect of the respondent's use of a photo from an intimate moment of the family, without the appellant's consent, the court is limited to affirming that it was also used in other articles, without mentioning where it was identified, without referring to the parts of the file and without offering any argumentation to support the given resolution.
It is noted in the appealed decision that the mention of the appellant's name and photo in an article, regarding the activity of a company in which he has a share in the share capital, does not affect the appellant's private life, but the fact that the modality was also criticized is not analyzed at all in which reference was made to his person, in a manner that would induce the idea of an obscure activity of the appellant, personally, not through the companies where they have the capacity of associate and the local authorities.
Subsumed to the ground of appeal provided by art. 488 paragraph 1 point 8 of the Civil Procedure Code, it criticizes the wrong inclusion in the legal norms of the factual aspects with which the court was vested, supporting the fulfillment, in the case, of the conditions of civil liability tortious. It shows that the interpretation given by the court of appeal to the provisions of art. 71 of the Civil Code, art. 8 and 10 of the ECHR and EU Regulation no. 679/2016 (GDPR) is wrong, contrary to the spirit and purpose of the rule.
Considers that the provisions of art. 488 paragraph 1 point 6 of the Civil Procedure Code are also incidents. given that the wrong interpretation of the law is also based on a lack of analysis of the conditions of the rule that the court applies.
It shows that the premise from which the appellate court started in resolving the appeal, that the appellant is a public person, is contrary to the meaning and interpretation of the provisions of art. 71 of the Civil Code, as well as of art. 8 and 10 of the ECHR. In this sense, he mentions that through the appealed decision, it was determined, with a determining role, that this quality of the appellant attracts the lack of responsibility of the defendants. The finding of the appeal court regarding the quality of the appellant as a public person is not based on a concrete analysis, the reference to the documents submitted before the first court, without a concrete reference to them, respectively the possible public appearances of the appellant, their topicality, their rhythmicity , the intentional exposure of the appellant publicly in another way, representing a lack of analysis regarding the quality of public person.
Considers that he is not a public person, having no public appearances in the media and in the press, in general, the respondent C. SA knowing the fact that the appellant wishes to be a discreet person, away from the spotlight, in relation to any subject of his private life or professional. It states that the articles submitted by the respondents to the file, in an attempt to accredit the idea that the appellant is a public figure, mostly come from the respondent C. SA, and of all the press articles cited by the respondents, most refer to the activity and public appearances of his late father. It also shows that there is no element that leads to the idea that he is a public figure, an aspect resulting from the fact that there is no public event that the appellant intentionally attends and that has reached public knowledge, he does not hold accounts on the social media pages, he is not a politician, he does not hold any executive function in public or private entities, he does not hold the capacity of administrator/authorized person in the companies in which he holds shares, so that he is granted the capacity of a public person.
He claims that the decision is also flawed due to the wrong interpretation and application of the legal limits regarding the use of the appellant's name, from the perspective of art. 71 of the Civil Code, as well as art. 8 and 10 of the ECHR, provisions according to which people benefit from protection with respect to life personal data and private personal attributes, including the person's identification attributes, such as name and image, dignity/reputation and privacy. It states that, in this case, the use of the appellant's name and image, illegal in itself, was also done in violation of the provisions and limits of the right of expression of persons active in the press/media field, by associating the appellant's name and image with alleged facts that exceed the limits legal, given that during the process neither the article in question, nor the respondents, failed to identify the appellant's personal involvement in them. It shows that the need to identify a direct link between the fact that is the subject of a press subject and a certain person is one of the requirements imposed on the proper exercise of the right to expression, provided for by art. 10 of the ECHR, but the appeal court did not identify any such element of connection between the personal life of the appellant and the facts reproduced in the journalistic article from which the litigation started, nor the criterion of the exercise by journalists, in good faith, of the right conferred by art. 10 of the ECHR.
The appellant shows that the journalistic activity carried out by the respondents did not fall within the limits of art. 7 of Law no. 190/2018 on measures to implement EU Regulation no. 679/2016 (which was adopted in order to regulate the principle of fair balance between the right to private life and freedom of expression, especially in the field of the press), the court of appeal giving a wrong interpretation to this legal provision.
He mentions that the appealed decision held that the insertion of the appellant's name and photo in the complained article complies with the legal requirements as it concerns the commercial activity of a company he manages. He claims that, from the documents in the file, it does not appear that the appellant manages the activity of the company D. SA, not being the administrator of this company, a context in which, by reference to the provisions of art. 7 of Law no. 190/2018, the publication of the appellant's name and image by the respondents it does not concern information that he has made public intentionally, it does not concern him as a public person, not being personal facts of the appellant, but of an entity with legal personality. It shows that the court of appeal wrongly considered the non-existence of an illegal act, this existing under the aspect of EU Regulation no. 679/2016, the damage resulting from the very violation of the norm by the respondents.
5. Defenses formulated in the case
The respondents SC C. SA and B. filed an objection, by which they requested the rejection of the appeal, as unfounded, arguing, in essence, that the appeal court's reasoning is rigorous and is in line with the High Court's jurisprudence, with reference to decision no. .1954/2014, as well as that it cannot be a question of an illegal act considering that the appellant was not violated, in concrete terms, of a subjective right, and the other essential conditions for incurring tortious civil liability were not developed or proven.
It also shows that, if it were assumed that his right to private life had been violated, this injury must be balanced with the journalist's right to free expression, guaranteed by art. 10 of the ECHR, which, exercised in good faith, justifies the entire publicity approach and, in accordance with art. 1353 of the Civil Code, removes the potential illegal character of the defendants' conduct.
II. The solution and considerations of the High Court of Cassation and Justice
Examining the appealed decision, through the prism of the criticisms formulated, as well as referring to the documents and works of the file and the applicable legal provisions, the High Court finds that the appeal is unfounded, for the reasons set out below.
A first reason for appeal is the fact that the court of appeal did not rule on the criticism regarding the non-analysis of one of the illegal facts complained of through the summons, the appellant considering that the reason for annulment provided for by art. 488 point.5 C.proc.civ., by reference to art.477 of the same normative act, in violation of the tantum devolutum quantum apellatum principle, the court of appeal not ruling on all the criticisms with which it was vested. It is claimed that the action concerned two illegal acts in relation to the use of the plaintiff's name and image in the article created/hosted by the two defendants, respectively defamation, through references to the person of the plaintiff/association of the plaintiff's person with alleged illegal acts and the use of the name and image without the plaintiff's consent .
The Court of Appeal analyzed with priority the appellant's criticisms regarding the lack of reasons for the decision, finding that the sentence of the first instance is sufficiently reasoned, it properly considered the factual situation, based on the assessment of the probation administered, as well as the factual and legal reasons that the pronounced solution is founded, with the application of the corresponding legal provisions, the reason for appeal formulated regarding this aspect being assessed as unfounded.
Under this aspect, the High Court of Cassation and Justice finds that, as it follows from the content of the summons, the subject of the action with which the court of first instance was vested, which remained unchanged throughout the trial before the first instance, is represented of the applicant's request for criminal civil liability for the use by the journalist B. of her name and image (photo) for defamatory purposes, in the content of an article belonging to the publication C. SA, without obtaining her prior consent.
Although in the appeal it is claimed that, in reality, the plaintiff notified the court of two illegal acts, from the content of the summons it follows that the plaintiff expressly indicated as an illegal act the unauthorized use of his name and image. The fact that he added the phrase at a given moment with a defamatory purpose, the article being obviously written with the intention of putting in a bad light the company in which the plaintiff holds shares, represents another element of the illegal act, from the way of formulating the action not resulting in the fact that the plaintiff notified the court with the analysis of a distinct illegal act, on which it would not have ruled.
From this perspective, the Court of Appeal correctly found that the first instance responded to the main arguments formulated by the plaintiff through the request for summons, the reasoning of the sentence clearly explaining the decision taken, not imposing an exhaustive response to all the arguments brought by the party, but a presentation of the fundamental arguments, those that are susceptible, through their content, to influence the decision, the requirements of art. 6 of the European Convention on Human Rights and art. 21 para. 3 of the Romanian Constitution regarding the right to a fair trial.
The appellant also shows that there is no ruling by the court of appeal on the alleged illegal act of using the name and image of the plaintiff for the purpose of defaming him, by affecting the dignity of the person, both from a professional and personal point of view, of family life, by using an image of his person from a funeral, intimate, family event and by associating the appellant with facts of alleged non-compliance with administrative acts in the matter of construction or of alleged pressure on an authority to modify the administrative acts issued. He claims that the first court only analyzed the fact of using the appellant's name and image without his consent, and the criticism formulated in the grounds of appeal regarding this aspect was not analyzed in the appealed decision, the considerations of the decision exclusively referring to the application of EU Regulation no. 679/2016, without a analysis of the publication of defamatory information about the person of the appellant.
Under this aspect, the High Court notes the fact that within the considerations of the contested decision, the appeal court analyzed the aspects with which the plaintiff understood to invest the first court and which were the object of the criticism in the appeal, respecting both the tantum devolutum quantum appellatum principle (that is, not devolves only what has been appealed), as well as the tantum devolutum quantum judicatum principle (that is, only what has been judged is devolved), respecting the provisions of art. 477 - 479 C.proc.civ., according to which the appeal court will verify, in the limits of the appeal request, the establishment of the factual situation and the application of the law by the first instance. Reasons of public order can be invoked ex officio, so the provisions of art. 488 para. 1 point 5 C.civ.proc.
As a preliminary matter, the factual situation held by the previous court, which cannot be the subject of judicial control of legality in the way of appeal, was stated in the preamble of the contested considerations, being that in the newspaper Y from June 29 to July 5 of was published the article "The new restaurant built by the company D. in the zero zone of X, on the bank (...), does not respect the project that won the competition of the mayor's office! D. makes the law!", and on 30.06.2020, the same article also appeared on the publication's website under the title "D. makes the law! The new restaurant in the center, built on the shore (...), does not comply with the project which the City Hall promised (...)". The article contains the photograph of the plaintiff, the architect, the mayor and the deputy mayor.
Although the plaintiff claims that his claim was analyzed only in terms of the defendant's use of his name and photograph, without his prior consent, and that the appealed decision does not analyze at all the use of the plaintiff's name and image for the purpose of defaming and affecting his dignity through the manner in which reference was made to his person, in a manner that induces the idea of an obscure, personal activity, it can be observed that, specifically, on pages 13, 14, 15 of the appealed decision, the elements of the act imputed to the defendants in the request for summons, by referring both to the provisions of the Regulation, especially of art. 85 regarding processing and freedom of expression and information, in conjunction with art. 7 of Law no. 190/2018 implementing the Regulation, as well as through the lens of the legal bases of tortious civil liability, as well as of art. 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Analyzing the concrete circumstances of the case, the appellate court assessed that the appellant's rights to private life, dignity, reputation or honor or self-image were not violated (page 14 paragraph 4). Also, after the theoretical analysis of the legal grounds with which it was referred and by reference to the documents and works of the file, the court showed that in this case, the subject of the analyzed article is, without a doubt, one of public interest, referring to the controversial way in which the company owned by the appellant-complainant, D., built a large restaurant, on a plot of land in the center of municipality X, following a partnership concluded with the local public authority, the name of the complainant being mentioned and his photo being published. The incriminated article did not report any details regarding the personal life of the appellant-plaintiff, but exclusively his capacity as the owner of the company D.S.A., an aspect, moreover, undisputed, so that it was correctly found that in the case the exceptional situations within the meaning of art. . 10 of the Convention and art. 30 of the Romanian Constitution, which protects freedom of expression in cases where the journalist acts in good faith for the purpose of correct and judicious information, regarding subjects of general interest.
As such, the appellant's request for the application of the reason for annulment provided for by art. 488 para. 1 point 6 C.proc.civ., in the sense that the court of appeal would not have examined the grounds of appeal from the perspective of the elements that characterize the deed complained of, defamation and damage to his dignity, but, as previously shown, it analyzed, in essence, the aspects with which it was vested, but assessed that the expression of the journalist concerned a subject of general interest and retaining his good faith, in the conditions in which no evidence to the contrary was presented in the case, assessed that the exercise of the journalist's right to free expression within the limits allowed by law cannot constitute a civil offense, and requiring him to pay compensation, in the concrete circumstances of the case, would represent an unjustified interference in the exercise of the right to free expression, disproportionate to the legitimate purpose pursued and which cannot be considered "necessary in a democratic society".
The appellant also claims that there is no concrete justification for the criticism regarding the appellant's lack of acceptance for the use of his name and image.
The Court noted on page 15 paragraphs 6-7, that as regards the published photo, it is a neutral one, which does not contain elements likely to bring any impact on private life, of small dimensions, which was previously used in other articles as well of the same publication, as well as in the international press, and the mention of the name of the appellant-complainant and the insertion of a photo of him, already public, in the content of a press article regarding the commercial company he leads, with reference to aspects of public interest related to the projects of the municipality, cannot be considered as affecting his right to private life, dignity or self-image, falling within the limits of freedom of expression, in the sense of art. 10 par.1 of the Convention.
As such, the claims according to which there is no justification regarding these aspects and that the appeal court did not examine and did not give a reasoned answer to all the factual and legal issues in the case brought to trial, are not confirmed, the appealed decision presenting, in essence, the reasons taken into account when pronouncing the adopted solution.
Since the solution given by the court of appeal to the legal issues brought to trial is fully and coherently supported by considerations that do not contradict themselves and that lead to the solution in the device, the High Court notes that the provisions of art. 488 para. 1 point 6 C.civ.proc. nor with regard to these grounds of appeal.
It is also argued in the appeal that the decision is unmotivated in terms of not pronouncing on some criticisms regarding the wrong classification of the plaintiff as a public person, related to the incidence of the provisions of EU Regulation no. 679/2016, such as the fact that until the date of publication of the article, year 2020, the appellant was a person who had not made any public appearance for over 10 years and that it cannot be considered that the notoriety enjoyed by his father is automatically transmitted to the appellant, and the quality of an entrepreneur does not equate to the notion of a person public. It is shown that, in terms of the respondent's use of a photograph from an intimate moment of the family, without the appellant's consent, the court is limited to affirming that it was also used in other articles, without mentioning where it was identified, without referring to the parts of the file and without offering any argumentation to support the given resolution.
Regarding this aspect, the Court of Appeal showed on page 15, paragraphs 4-5 that it was proved in the case, with the documents submitted to the first instance file, the quality of the appellant-plaintiff as a public person, being an important businessman, which owns and manages, among other things, the largest and oldest mall in X., the company it patronizes being involved in various public projects, so that the limits of admissible criticism are wider than in the case of individuals, which determines, correlatively, a reduced protection of it. The notoriety of the appellant-complainant was also confirmed by his multiple appearances in the national and international mass media, a fact proven by the documents submitted to the first instance file.
It is noted that the appeals court referred to the evidence that convinced it that the plaintiff can be classified as a public figure, not necessarily from the perspective of his public appearances, the notoriety of his deceased father or strictly from the quality of an entrepreneur, but from the activity his professional career, which also meant involvement in various public projects.
The reasoning of a decision must be understood as a logical syllogism, capable of intelligibly explaining the decision taken, which does not mean an exhaustive answer to all the arguments brought by the party, but an answer to the fundamental ones, which are susceptible, through their content, to influence the solution .
The removal of a defense contrary to the retained factual situation does not imply the rejection of each individual argument, if it does not correspond to the retained situation. Also, in judicial practice, including from the perspective of ECtHR judgments, it has been consistently shown that, in the economy of considerations, the court does not need to respond precisely to each argument, as they can be grouped according to the thesis to which they subscribe for to have developed unique reasoning.
Or, from the verification of the grounds of the contested decision, it follows that the appellate court judiciously motivated the solution pronounced by removing the arguments of the plaintiff appellant, it cannot be reproached for not responding concretely to some reasons for appeal, which is why the criticisms regarding the incidence of the provisions of art. 488 para. 1 point 6 C.civ.proc.
On the other hand, the appellant tries a reinterpretation of the evidence in order to retain a different factual situation than the one that the previous court has already established, aspects of groundlessness that cannot be analyzed in the way of appeal, way of appeal extraordinary which can only concern the grounds of illegality strictly and limitedly provided by art. 488 Civil Procedure Code.
Subsumed under the ground of appeal provided by art. 488 paragraph 1 point 8 of the Civil Procedure Code, the appellant criticizes the wrong classification in the legal norms of the factual aspects with which the court was vested, supporting the fulfillment, in the case, of the conditions of liability civil torts. It shows that the interpretation given by the court of appeal to the provisions of art. 71 of the Civil Code, art. 8 and 10 of the ECHR and EU Regulation no. 679/2016 (GDPR) is wrong and is based on a lack of analysis of the conditions of the norm which the court applies.
The Court of Appeal, interpreting the provisions of the Regulation, especially those of art. 85 regarding processing and freedom of expression and information, in conjunction with art. 7 of Law no. 190/2018 implementing the Regulation, found that the first court correctly held that, in this case, the conflict between the plaintiff's right to respect for private life, a right enshrined in art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the journalist's freedom of expression guaranteed by art. 10 of the Convention, but analyzing the concrete circumstances of the case, assessed that the rights to private life, dignity, reputation or honor or self-image of the applicant were not violated, as the articles under analysis pursue one of the legitimate goals shown by the text of the Convention , and their subject is one of public interest.
The appellant's criticisms in the sense that there was a wrong interpretation and application of the provisions of art. 7 of Law no. 190/2018 and that the plaintiffs' action to publish, respectively to associate his name and image with circumstances not directly related to his person, represents a violation of the provisions of EU Regulation no. 679/2016, in particular the provisions of art. 6 para. (1) lit. a) from it, are unfounded, for the reasons that will be presented next.
The High Court notes that, it is true that according to EU Regulation no. 679/2016, no personal data (including the name and image of the person, according to art. 4 points 1 and 2) can be processed, i.e. brought to the public's attention, without the consent of their holder, but nevertheless, the European legislator established through the Regulation that the member states can adopt legislation at the national level that provides for such exceptions for the journalistic field.
This happened at the national level, the Romanian legislator adopting Law no. 190/2018 on measures to implement Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and its repeal of Directive 95/46/CE (General Data Protection Regulation) through which it regulated the matter of personal data protection, focusing on the issue of personal data processing by journalists in art. 7 of the previously mentioned normative act.
According to art. 7 of Law no. 190/2018, in order to ensure a balance between the right to the protection of personal data, freedom of expression and the right to information, processing for journalistic purposes or for the purpose of academic, artistic or literary expression can be carried out, if it concerns personal data which have been openly made public by the person concerned or which are closely related to the quality of public person of the person concerned or to the public nature of the facts in which he is involved.
In accordance with the factual situation held by the previous court in the sense that it established the quality of the appellant-plaintiff as a public person, he being an important businessman, who owns and manages, among other things, the largest and oldest mall in X, the company he patronizes being involved in various public projects and that the article in question refers to the controversial way in which the company owned by the appellant-complainant, D., built a large restaurant, on a plot of land in the center of municipality X, following a partnership concluded with the local public authority, the High Court considers that the defendants were in the derogatory situation provided for by the provisions cited above, which were correctly interpreted in this way by the previous courts, since the facts presented were of a public nature, of general interest, being closely related to the public person quality of the person concerned.
The appellate court distinctly concluded that the subject of the article is one of public interest, but also that the plaintiff has the capacity of a public person, which is important from the perspective of art. 7 of Law no. 190/2018 in order to analyze whether or not the act of using the name and image of the plaintiff without his consent is illegal, from the perspective of the GDPR Regulation, but also to analyze whether or not the right balance between the right to private life enshrined in art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the journalist's freedom of expression guaranteed by art. 10 of the Convention.
The appellant, although citing the provisions of art. 7 of Law no. 190/2018, omits to notice that the derogation from the rules for the protection of personal data is provided not only in the situation where they have been made public in a manifest manner by the data subject, but also when the facts described are of a public nature and are closely related to the quality of public person of the person concerned, aspects already retained by the court of appeal as a result of the interpretation of the evidence administered in the case.
As such, the previous courts correctly found that the sanctions of the Regulation on the protection of natural persons are not applicable with regard to the processing of personal data
personal and regarding the free circulation of this data and of the law applying it.
The appellant considers that the reasoning of the court of appeal is wrong in the sense that the insertion of his name and photo in the article is in accordance with the legal requirements as it concerns the commercial activity of a company that he "leads", because in reality, the documents of the file do not result in any way the fact that the plaintiff "leads", in general, the activity of the company D.S.A., nor that, in relation to the business analyzed by the respondents in the relevant article, he would have been directly involved, not being an administrator of this company, and the premise from which the court of appeal started in the resolution of the appeal, the fact that the appellant is a public person (without a concrete analysis of the documents submitted before the first instance, of the appellant's possible public appearances, their current nature, their rhythmicity, the appellant's intentional exposure in publicly in another way), is contrary to the meaning and interpretation of the provisions of art. 71 of the Civil Code, as well as of art. 8 and 10 of the ECHR.
Or, with these claims, in reality, one tends to retain a different factual situation (that the holding of shares does not equate to the management activity of a company) than the one already established, in the sense of the plaintiff's involvement in the management activity of the company in question and which can no longer be interfered with on the occasion of judicial control. The appeals court does not have the competence to censure the factual situation established by the challenged decision and to reevaluate the evidence for this purpose, but only to verify the legality of the decision by referring to the factual situation that has already been established, because the way in which the courts of substantively, they interpreted the administered evidence and established on their basis that a certain factual situation does not constitute grounds for appeal in the regulation of art. 488 Civil Procedure Code.
A reinterpretation of the evidence administered in the case is no longer possible in the way of appeal, as previously shown, so that the High Court of Cassation and Justice can no longer reanalyze the documents submitted to the file, as requested by the appellant, in order to change the data regarding the factual situation, as it was held by the previous courts.
Another ground of appeal concerned the wrong interpretation and application of art. 71 of the Civil Code, as well as art. 8 and 10 of the European Convention on Human Rights.
Analyzing the provisions invoked regarding freedom of expression, it is found that according to art. 10 para. 1 thesis I of the European Convention on Human Rights, "every person has the right to freedom of expression. This right includes freedom of opinion and freedom to receive or communicate information or ideas without the interference of public authorities and regardless of borders".
As such, freedom of expression is the essential foundation of a democratic society and one of the primary conditions for everyone's progress and fulfillment, but it does not constitute absolute freedom, but the exercise of this freedom is subject to restrictions and limitations.
In this sense, art. 30 paragraph (6) of the Romanian Constitution provides that freedom of expression cannot prejudice the dignity, honor, private life of the person nor the right to one's own image, and art. 57 of the Constitution states that citizens must exercise their constitutional rights and freedoms in good faith, without violating the rights and freedoms of citizens.
The ECHR jurisprudence ruled, for its part, that the right to free expression is not an absolute one, this conclusion being in accordance with the provisions of art. 10 para. (2) of the Convention, according to which the exercise of these freedoms that entail duties and responsibilities may be subject to formalities, conditions, restrictions or sanctions provided by law which, in a democratic society, constitute necessary measures for national security, territorial integrity or public safety , defense of order and crime prevention, protection of health, morals, reputation or rights of others, to prevent the disclosure of confidential information or to guarantee the authority and impartiality of the judiciary.
On the other hand, art. 8 of the ECHR guarantees every person the right to respect his private and family life. Therefore, the two rights provided by the convention are not absolute, but limit each other, in the sense that the right to private life ends where the right to free expression begins, and the right to free expression ends where the right to private life begins, so that each of the two rights guaranteed by the convention must be exercised with respect for the other.
At the same time, it should be mentioned that, as far as freedom of expression is concerned, art. 70 C.civ. provides that any person has the right to free expression, the exercise of this right cannot be restricted except in the cases and limits provided for in art. 75, and the right to private life is regulated by art. 71 Civil Code, according to which every person has the right to respect his private life; no one can be subjected to any interference in his intimate, personal or family life, nor in his domicile, residence or correspondence, without his consent or without observing the limits provided for in art. 75.
From the perspective of these theoretical notions, the appellate court argued in detail why it considers that the defendants' statements do not fall within the scope of the illegal and do not exceed the limits of acceptable criticism.
Thus, the Court of Appeal considered that forcing the defendants to pay moral damages for the publication of the articles in question represents an interference with their right to free expression guaranteed by art. 10 of the Convention, in this sense the ECHR ruling in the Cumpănă si Mazăre v. Romania case, the Cârstea si Grecu v. Romania case, the Morar v. Romania case, the Barb v. Romania case, and such a limitation on the right to free expression is contrary to the Convention if it does not fulfill three cumulative conditions, namely: to be provided by law, to pursue at least one of the legitimate purposes provided by paragraph 2 of art. 10 of the Convention and be necessary in a democratic society to achieve that goal.
In this case, the High Court considers that the previous court correctly assessed that informing the public about the real estate project of the company in which the plaintiff is involved represents a subject of general interest for the community of X, and regarding this aspect the ECHR expressed since 1992, arguing in the case of Thorgeirson v. Iceland that "art. 10 defends not only the statements included in a proper political debate, but also the discussion of any topics that interest the public opinion in general or a segment of it".
Even if the plaintiff was not a public figure, it should be noted that, through the published articles, the defendant did not provide aspects of the plaintiff's private life, but submitted to debate the way in which citizens and the public budget are affected by this real estate project, and for these reasons, the Court rightly held that the aspects brought to the attention of public opinion by the defendant are of general interest and are limited to the role of the press in a democratic society.
Detailing the reason for appeal based on the provisions of art. 488 para. 1 point 8 Civil Procedure Code, the appellant claims that, in this case, the use of his name and image was also made in violation of the provisions and limits of the right of expression of persons active in the field of press/media, by associating the name and image the appellant with alleged facts that exceed the legal limits, given that during the trial neither the article in question, nor the respondents, failed to identify the appellant's personal involvement in them, nor the connection between the appellant's personal life and the facts reproduced in the journalistic article where the dispute started.
As such, it is noted that the fact that the related circumstances lacked sufficient factual basis is invoked, from the perspective of the involvement of the plaintiff as a natural person, which, in principle, would lead to a violation of the provisions of art.10 §2 ECHR.
Under this aspect, it is important to mention that the ECtHR established an important distinction between the affirmation of facts and that of value judgments, and according to the Court, the existence of facts can be demonstrated, while the truth of value judgments is not susceptible to be proven.
Or, precisely making this distinction between the category of value judgments in which the expression of one person's opinion on the professional, moral and personal qualities of another falls, and that of factual statements that express accusations of having committed certain acts, the European Court pointed out explicitly that to the extent that a person expresses value judgments, he cannot be required to prove the truth of what is stated, such an obligation being impossible and preventing people from asserting their opinion about others. (cases of Jerusalem v. Austria; Brasilier v. France).
Regarding the factual situation held by the previous court with reference to the person of the plaintiff, it was shown by the appeal court that the article states: "Two months later, the City Hall awarded the contract to company D., patronized by AA. Jr. (photo), at the price of 230 lei/sqm/year, i.e. 59,800 lei annually. There were two more offers at the auction, but only from a formal point of view, because they came from companies also controlled by A..: F. and G. The architect claims that D. requested from the very beginning that the restaurant be on two levels, something that could only be done by giving up the surface promenade. "I pushed as hard as I could to preserve the original concept. But if I continued to say that I would not make compromises, the investment would no longer be made at all. I alone could not determine an investor", he says, confirming that the City Hall did not oppose the wish to A."
Analyzing the censored text, the Court of Appeal considered that the incriminated article did not report any details regarding the personal life of the appellant-complainant, but exclusively his capacity as the owner of the company D.S.A., an aspect, moreover, undisputed.
The appellant tries to bring additional arguments that were not formulated previously, in order to expand the procedural framework with which he vested the substantive courts, which is not admissible from the perspective of the character of the extraordinary appeal, only for reasons of illegality of the appeal.
Moreover, a reinterpretation of the administered evidence, in order to draw the conclusion of the existence of certain statements within the complained of articles regarding the appellant's personal involvement in the facts reproduced in the journalistic article, is not possible in this appeal, so that the appellant's criticisms will be removed under this aspect.
In addition, regarding the statements regarding his professional activity, with involvement in the activity of SC D.S.A., it can be observed that the defendants acted in good faith in the journalistic approach and that the facts related by them were not without sufficient factual basis, referring to the data regarding the conduct of the auction in question, but also to the statements of the chief architect of the City Hall, so that their attitude, analyzed globally, demonstrates that they acted in good faith and that their statements had a sufficient factual basis and are registered in the dose of acceptable exaggeration and provocation, as defined by the ECtHR in the Barb v. Romania case.
The claims listed in the articles in question represent aspects of public information regarding which the real source of the information had to be held and presented to the public, the so-called proof of truth, which does not automatically mean the proof of the imputed facts stricto sensu, (which belongs to the competent bodies - courts, criminal investigation bodies, etc. and not the press) but the existence of the appearance of a factual basis that justifiably created the need for the press to bring to the attention of public opinion the aspects of general interest under discussion.
However, the real source of the information was identified within the articles in question, namely documents regarding the data related to the auction and the statements of the chief architect of the X City Hall.
The court of appeal notes that the jurisprudence of the European Court of Human Rights - the judgment pronounced in the Bladet Tromso and Stensaas v. Norway case, ruled that documents from state institutions should represent sources that "the press should normally, when contributing to the political debate on topics of general interest, to rely on their content, without undertaking independent checks".
Against the considerations shown above, it should be noted that in this case the defendants' approach was correctly considered legitimate by the previous courts and enjoys the protection of art. 10 of the Convention, the balance between the plaintiff's right to private life, protected by art. 8 of the Convention, and the defendants' right to free expression, enshrined in art. 10 of the Convention, so that the appellant's criticisms falling under the provisions of art. 488 para. 1 point 8 C.civ.proc.
For all these reasons, the appeals court, noting that none of the grounds for appeal formulated by the appellant are founded, based on the provisions of art. 496 paragraph 1 of the Civil Procedure Code, rejected the appeal declared by the plaintiff A. against decision no. 698/2021, pronounced by the Oradea Court of Appeal - Civil Section I.
- ↑ Article 7 regulates the fair balance between the right to privacy and freedom of expression, particularly in the field of the press.
