Right to Privacy v. Freedom of Expression


The European Court of Human Rights rendered its decision in the case of Jelševar and Others v. Slovenia on April 3, 2014. The Court unanimously dismissed the applicants’ claims under Article 8, the right to respect private and family life. The case revolved around the applicants’ complaint that their reputation had been affected by the publication of a book depicting the life of a fictional character whose story had been inspired by their late mother. The test the Court employed was, whether a reasonable, average reader would have perceived the story as either real or offensive?

In 1998, a writer, B.M.Z. self-published a novel describing the life of a woman from the Slovenian countryside who emigrated to the United States, married a fellow Slovenian named Brinovc and subsequently returned home to take over the family farm. The main character, Rozina, was depicted as a lively and resourceful woman who had “used sex to get her way with her husband, sold illegal alcohol during Prohibition in the United States, and valued money over her children.”

The applicants lodged a civil action against B.M.Z for violation of personality rights and emotional distress suffered on account of the publication, claiming in particular that B.M.Z. had painted a negative and defamatory portrayal of their mother. Furthermore, the applicants argued that the publication humiliated them in the eyes of their local community. The applicants called witnesses who stated, that they clearly believed the character to be inspired by the children’s late mother. The setting of the book was the area where the applicants’ family had lived, and the name Brinovc was the name under which the family was known in their local community. Judging by this evidence, it is clear that there were definitely a fair share of coincidences between what was real and what was deemed to be fiction.

The Court, however, concluded that average reader would not consider the events narrated in the book as facts about real people. The Court stated that it had balanced the applicants’ right to privacy, and the author’s right to freedom of expression in its decision. Ultimately, in April 2007, the Court dismissed the applicants’ claims.

In America, in most states, you can be sued for using someone else’s name, likeness, or other personal attributes without permission for an exploitative purpose; do you believe that this was the case here? Do you believe the Court made the right decision?

Source: HUDOC

Picture: Thetwistedvegan.com

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