Analysis of the Skopje Court of Appeal's judgment for defamation and damage to reputation and honor and violation of personal rights

Analysis by prof. Dr. Igor Kambovski of the Verdict GZ No. 3811/18 of the Skopje Court of Appeal

 

Facts about the case:

The person L. Sh. (plaintiff) from K. is a former teacher employed in Primary School K. R. in K. At her request, with the decision of the primary school K.R. K. No. 04-435 / 2 of 03.11.2015, the employment contract was terminated. The termination of employment was initiated as a result of the personal assessment of the plaintiff who considered it necessary, given the discomfort in which she found herself at that moment. Just before the termination of the employment contract, a third party committed hardware theft and unauthorized entry into the computer system, stole the plaintiff’s user data for accessing her email and her Facebook profile, thereby abusing her personal data. Because of this unlawful act, the plaintiff lost her unhindered access and possession over her email and her Facebook profile. On September 27th 2015, the plaintiff sent an electronic message to the Directorate for Personal Data Protection (defendant) on their official e-mail info@privacy.mk, requesting protection against misuse of data on her Facebook profile. In her correspondence, the plaintiff informed the defendant of her personal data, the address of her residence and complained about the misuse of personal data, stating that her e-mail with which she accessed her Facebook profile was hacked and that she no longer has possession over them. The plaintiff requested inspection and protection by the defendant. She further stated that, in the meantime, the third person who carried out the intrusion into the email and Facebook profile, manipulated her Facebook profile and personal content in an unauthorized manner, making the data and photos that were on the profile publicly available and visible, thereby violating her right to privacy. At the end of the correspondence, she asked the defendant to call her and arrange a meeting with her as soon as possible (the following day) or to put her Facebook account under protection, meaning to prevent unauthorized use and manipulation of her data and profile photos. On the basis of the submitted application by the plaintiff to the defendant, the Directorate took a decision UP 1 no. 10-397 of October 27, 2016, with which it accepted the initiative for inspection, and it found that there was violation of the right to protection of personal data.The defendant responded to the plaintiff that she was included in the monthly plan for inspection supervision. The defendant stated that the case was distributed to an inspection official and that the plaintiff will be informed in due time by the authorized person about the outcome of the procedure and the manner in which it will be decided. The authorized person employed by the defendant informed the plaintiff via electronic mail that the social network Facebook will provide instructions for access, deactivation and deletion of her abused profile. Meanwhile, the third person contacted the plaintiff and blackmailed her to do certain things in his favor, threatening to publish the contents and photos that were on the Facebook profile of the plaintiff. When the plaintiff did not respond to the requests and threats, the third person continued to perform unauthorized and unlawful activities on the private e-mail and Facebook profile of the plaintiff and made public contentious photographs of the plaintiff. As a result of the blackmail and threats, the plaintiff, aware of the danger of violating her honor, reputation and position in the society as a teacher and example for her students, asked the school principal to amicably terminate the employment contract. The photographs were published on Sitel Television on November 6th 2015 in a special report titled "The naked teacher left the school, stayed on Facebook"[i]. In a response to a journalist’s question on how the Directorate acts in such cases of abuse of Facebook profiles, an employee of the Directorate for Personal Data Protection (the defendant), among other things, gave a statement containing untrue facts that are harmful to the honor and the reputation of the plaintiff: "She has published the photos, she can remove them. We have no reason to interfere in this matter here. If it is a matter of abuse of her photos by a third party, in that case we can react. But there is no other competent authority in the Republic of Macedonia". This statement by the employee of the defendant was the reason for the plaintiff to file a lawsuit against the Directorate for Personal Data for defamation committed through media, because it was causing damage to her honor and reputation. 

 

Process actions, first instance decision:

Regarding the blackmail and other illegal acts, appropriate procedures have been initiated before the competent authorities for criminal prosecution - Theft under Article 235 paragraph 1 of the Criminal Code (CC) [ii], Misuse of personal data referred to in Article 149 paragraph 1 of the CC, Unauthorized entry into a computer system under Article 251, paragraph 1 of the Criminal Code and Blackmail under Article 259, paragraph 1 of the Criminal Code. Regarding the damage caused to her honor and reputation, the plaintiff lodged an application under Article 8 paragraph 1 of the Law on Civil Liability for Defamation (LCLD) [iii] at the Basic Court Skopje 2-Skopje (Civil Court). The lawsuit was filed against the defendant-Directorate for Personal Data Protection, for establishing civil liability for defamation and compensation. The ground of the lawsuit is the defamation contained in the statement of the defendant’s employee which publicly presented untrue facts that are harmful to her reputation and honor, and which was published through the mass media, in the news diary of Television Sitel on 06.11.2015. After the publication of the news report, the plaintiff sustained non-pecuniary damage due to a violation of her personal rights, because she was exposed to embarrassment and inconvenience not only in the family, the nearer environment, but also in the society in general, which resulted in a deterioration of her health. The first-instance civil court delivered judgment P5 no. 7/16 of 10.10.2017, which partially upheld the lawsuit, i.e. it established a civil liability for defamation, but the claim for compensation of non-pecuniary damage for violation of personal rights was rejected. The first instance court in the procedure examined the proposed evidence by the plaintiff and the defendant and applied the substantive rules that corresponded to the specific claim. The legal framework applied in the particular situation encompasses: Article 8 paragraph 1 of the Law on Civil Liability for Defamation and Insult – the person liable for defamation is the one who delivers or conveys, before a third party, untrue facts about another person with established or obvious identity that are harmful to his honor and reputation, with the intention of harming his honor and reputation, whereas he knows or must have known that they are untrue; and, in a wider context, Article 25 of the Constitution of the RNM[iv] - every citizen is guaranteed the respect and protection of the privacy of his personal and family life, his dignity and reputation; as well as Article 8 paragraph 1 of the European Convention on Human Rights[v] - everyone has the right to respect for his private and family life, his home and his correspondence.

 

Analysis of the Verdict GZ No. 3811/18 of the Skopje Court of Appeal

The second instance procedure that resulted in the Verdict GZ No. 3811/18 of the Appellate Court in Skopje from 12.09.2018, was initiated upon the appeal of the defendant against the verdict of the Basic Court Skopje II Skopje P5 No.7 / 16 from 10.10.2017. In the complaint, the defendant refers to two grounds on which an appeal can be filed in accordance with the Law on Litigation Procedure (LPP)[vi], i.e. due to incorrect or incomplete factual situation and misapplication of the substantive law, as well as the decision on costs. According to the defendant’s complaint, the disputable statement of his employee in the report published on Sitel Television does not contain elements of defamation, and therefore it cannot result with liability of the defendant for defamation in the sense of the Law on Civil Liability for insult and defamation. This is because the employee of the Directorate for Personal Data Protection, at the request of the editorial board of Sitel Television, on 6.11.2015 gave a short interview regarding the publication of the disputed photos of the plaintiff on the social network Facebook, which was neither tendentious nor with the intent to harm the honor and reputation of the plaintiff. According to the defendant, the sole purpose of the statement was to clarify what happened when photos were posted on the social network Facebook and to explain that, in the case of abuse by a third party, the Directorate for Personal Data Protection may act as the sole competent state authority for this purpose.In the procedure, the Court of Appeal examined the appealed verdict within the limits of the complaint and dismissed the appeal of the defendant as unfounded and upheld the first instance verdict P5 no. 7/16 of 10.10.2017 of the Basic Court Skopje 2, Skopje. The Court of Appeal, in accordance with Article 354 paragraph 1 of the LLP, taking into account ex officio any substantive violations of the provisions of the civil procedure referred to in Art.343 Art. 2 p. 1,2,3,5,10,11,13,14 and 15 of the LLP, concluded that the adoption of the appealed verdict did not involve any of the fundamental violations that this court is taking care of ex officio. Regarding the allegations of misapplication of the substantive law, the Court of Appeal made a brief statement in one paragraph that the substantive law was properly applied when the first instance court decided in the appealed verdict. The same conciseness is also noted in the cost section, where the Court of Appeal assessed that the first-instance court, in accordance with Art. 148 of the LLP, correctly assessed and ordered the litigation expenses charged to the defendant, with clearly elaborated reasons for the corresponding procedural actions. As to the allegations of misconduct on the wrongful and incompletely established factual situation, the Court of Appeal fully accepted the arguments of the first instance court contained in the first instance verdict and dismissed the complainant's allegations as unsubstantiated. The Court of Appeal in particular accepts the rationale of the first-instance court that the defendant did not act with sufficient precautionary level by giving the part of the statement by the authorized official referring to the plaintiff. Namely, the defendant was not allowed to give false information in public, since the plaintiff, prior to the publication of the television report, requested protection from the defendant against the misuse of data on her Facebook profile, and her request was accepted with a decision that at the same time found a violation of the right to protection of personal data of the plaintiff. Further, in the statement of the employee published in the report of TV Sitel, the accent is placed precisely on the plaintiff, i.e. it is claimed that the plaintiff herself has released the contentious photographs and that she can remove them herself. The first-instance court found that precisely in this part the witness's statement contained untrue facts that could harm the plaintiff's honor and reputation, since the plaintiff in this way is portrayed to the public as a person who publishes personal compromising materials (photos) on the social network Facebook, which can be considered as immoral behavior in the environment in which the plaintiff lives and works. It is interesting to mention that the first-instance court established, and the Court of Appeal also confirms it, that the profession of the plaintiff was emphasized in the title of the report on TV Sitel. This piece of published information that the defendant undoubtedly did not influence, nor could have influenced, in the context of the statement gives even greater importance to the severity of the violation of the plaintiff's personal rights and her honor and reputation. This could be the basis for a lawsuit against Sitel TV, i.e. against the author of the report, the editor or his replacement person in the media and against the legal entity, but the plaintiff, for reasons known only to her, did not initiate such a procedure against the TV media. In this context, the defendant tried to invoke the ground for exclusion of liability provided in Article 9, paragraph 2 and Article 8, paragraph 3 of LCLD, which lists the persons who could be liable for defamation when the delivery of the untrue factual allegations was made through the media, which refers to a circle of persons in which the defendant does not fall. The first-instance court determined correctly, and the Court of Appeal confirmed, the responsibility of the defendant for defamation towards the plaintiff committed in the manner described in accordance with Article 8 paragraph 1 of the LCLD. Regarding the part of the claim in which the plaintiff asks for a compensation for non-pecuniary damage, the first instance court, despite the established liability for defamation, found that the conditions were not met for awarding a financial compensation for non-pecuniary damage to the plaintiff due to a violation of her personal rights to honor and reputation. An explanation is given that the court awards fair financial compensation if it finds that the severity of the violation and the circumstances of the case justify it. The Court considered that the confirmation of the defendant's liability for defamation represented a sufficient and real satisfaction for the plaintiff's damage sustained as a result of the actions taken by the defendant. It is even more indicative that the plaintiff did not lodge an appeal against the first instance verdict regarding the compensation. Also, in this context, I consider that the plaintiff could have initiated a procedure and directed the lawsuit, especially regarding the compensation for damages, against the public media - Sitel TV. Although the subjective responsibility is on the side of the defendant- the Directorate, and Sitel TV is the medium through which the defamation was distributed in public, as a TV broadcaster with a national concession and with great visibility Sitel TV could be responsible for the report in which the defamation was conveyed and I believe that the court would have decided in favor of the plaintiff and would have awarded fair compensation. In that context, in our case-law, there are a number of decisions in which fair compensation for non-pecuniary damage has been awarded due to violation of personal rights and honor and reputation made by the mass media. As for the wider context of real risk and threats to privacy, personal rights and the abuse of personal data, with a potential damaging effect to the honor and reputation, every user on the social network Facebook faces such a risk. This is because all content posted on the social network platform becomes public and susceptible to abuse. The degree of publicity and availability is determined by the user himself, in accordance with the Facebook data policy[vii] and the option for technical settings (setting, modification, deletion). Facebook is often the target of attacks and lawsuits for the way it collects, stores and uses the users’ personal data, but Facebook claims to be making strong efforts to provide adequate technical and legal protection of personal data, photos and user content. Still, experience and practice show that there are problems and "leakage" of data in public, mostly for malicious or lucrative motives. 

 

Conclusion

The Skopje Court of Appeal decided in the appeal procedure in accordance with the competences arising from the Law on Litigation Procedure, as a second instance. The court carefully analyzed the allegations of the defendant, on all grounds of appeal, dismissed them as unfounded and upheld the first-instance decision with a thorough and precise explanation. The general impression is that the Court of Appeal's judgment is in accordance with domestic law and established case-law, primarily from a formal point of view. I consider that the Judicial Council that made the second instance decision did not have great dilemmas in the decision-making process, primarily because of the accuracy and clarity of the first instance verdict that was subject to review and analysis. But, in a wider context, the whole procedure gets a different dimension as it sets a precedent in the Macedonian case-law. Namely, the defendant in the procedure is a state authority with clear legal competencies for the protection of personal data. The subject of protection is a subjective civil right - the right to privacy, reputation and honor and the right to protection of personal data. But what makes the case special is that, indirectly, the violation of subjective civil rights is carried out through a modern public medium (the social network Facebook), which serves, primarily, for entertainment, but also for communicating and publicly sharing personal opinions, views, photographs, audio and video materials and other content. Such content is essentially a risky object of protection, due to threats of violations of privacy, personal rights and the misuse of personal data, with a possible negative effect on the honor and reputation of Facebook users.


[i] https://www.youtube.com/watch?v=dfYT3wEypCA
[ii] „Official Gazette of the Republic of Macedonia“ No. 37/96, 80/99, 4/2002, 43/2003, 19/2004, 81/2005, 60/2006, 73/2006, 7/2008, 139/2008, 114/2009, 51/11, 135/11, 185/11, 142/12, 166/12, 55/13, 82/13, 27/14, 28/14, 115/14, 132/14, 160/14, 199/14, 196/15, 226/15, 97/17
[iii]  „Official Gazette of the Republic of Macedonia“ No. 143/2012
[iv]https://www.sobranie.mk/the-constitution-of-the-republic-of-macedonia-ns_article-constitution-of-the-republic-of-north-macedonia.nspx
[v] https://www.echr.coe.int/Documents/Convention_ENG.pdf%23page=9
[vi] „Official Gazette of the Republic of Macedonia” No.7/2011, 124/2015
[vii] https://www.facebook.com/about/privacy/update