The European Court of Human Rights (ECHR) is a body where individuals, groups, organizations and countries can file complaints against EU Member States. The rulings of the Court are final, so there is no appeal. In this case, the ECHR was involved in the question whether the photograph of the Dutch-speaking, rapper Rex van P. (who was suspected of homicide) should have been published in the newspaper. Two fundamental Dutch civil rights were diametrically opposite to each other in this case: freedom of expression and freedom of press. The Dutch media law lawyer Thomas van Vugt explains the issue.
The reason for the proceedings before the ECHR are explained below. In 2009, the Dutch newspaper ‘Het Parool’‘ published an article about the criminal manslaughter case against rapper Rex van P. The article included a recognizable photograph of Rex van P. Het Parool had obtained this photograph from a documentary which had been broadcast a few years previously. The documentary was entirely about the life of Rex van P., particularly about the street gang culture of which Rex van P. was a proud member. Rex van P. had cooperated voluntarily with this documentary in which his face and full name had been recognisable.
Rex van P. felt that this was a breach of his privacy and took out a summons against Het Parool. On appeal, the Court agreed with the rapper. Het Parool had unlawfully breached the privacy of Rex van P. According to the Court, the freedom of press that was served with this breach was outweighed by the right to privacy of Rex van P. Het Parool could have chosen a less recognizable photo or placed “a bar over his eyes.” The fact that in the past, Rex van P. had actively participated in a documentary does not mean that in this case, he is less entitled to privacy than anyone else. This has not made him a (significant) public figure.
Moreover, Het Parool used the photograph in an entirely different context, namely in the context of a very serious offence. The Court is of the view that, in principle, restraint should be exercised in publishing photos of suspected criminal offenders. Het Parool disagreed with this decision and went to the European Court. The newspaper argued that this decision unduly restricted its freedom of expression.
The European Court, however, ruled against Het Parool. In this case, it concerned a balanced assessment between two fundamental rights: freedom of expression and right to privacy. The following criteria, developed in European law, applied in this case: the contribution to the public debate, the extent to which the person concerned was well-known, the news subject, the content, form and impact of the publications and – to the extent relevant – the circumstances in which the photograph had been taken.
The European Court considered that the article in Het Parool did affect the public interest. Moreover, Rex van P. was well-known to a certain extent. Nevertheless, these circumstances are insufficient to override the right to privacy of Rex van P. The European Court agreed with the Court that restraint should be exercised in publishing photos of serious crime suspects.