CAVALEIRO DA CUNHA BRAZÃO A OSTATNÍ proti Portugalsku

FOURTH SECTION

DECISION

Application no. 25484/23
Vasco CAVALEIRO DA CUNHA BRAZÃO and Others
against Portugal

The European Court of Human Rights (Fourth Section), sitting on 1 July 2025 as a Committee composed of:

Anja Seibert-Fohr, President,
Ana Maria Guerra Martins,
András Jakab, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 25484/23) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 June 2023 by the applicants listed in the appended table (“the applicants”), who were represented by Mr R. Sá Fernandes, a lawyer practising in Lisbon;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the alleged failure of the domestic authorities to protect the private and family life of the applicants and their family members, whose photographs were broadcast on the television news. The applicants relied on Article 8 of the Convention.

2. The first applicant is a major in the Portuguese army and was formerly a spokesperson for the Military Judiciary Police. The second and the third applicants are his wife and son.

3. On 1 October 2018 the private television channel “TVI – Televisão Independente” broadcast a report in its 1 p.m. news bulletin about an ongoing high-profile criminal investigation into the army. The report discussed a post that had been written by the first applicant and shared by him on his public Facebook profile page. When the camera zoomed in on what the first applicant had written, his cover picture, which was a photograph of his family, including the second and third applicants as well as minor children, was shown. In its 8 p.m. news bulletin, TVI broadcast the report again, but the photograph of the applicants had been blurred.

4. On an unspecified date the applicants lodged a criminal complaint against the television channel and its journalists. They claimed that the fact of broadcasting the photograph of their family during the news report without their consent had amounted, on the one hand, to a breach of the right to respect for their private life as set out in Article 192 of the Criminal Code and, on the other, to unlawful disclosure of images as set out in Articles 197 and 199 of the Criminal Code. They requested leave to intervene in the proceedings as auxiliary prosecutors (assistentes). That request was granted.

5. On 22 October 2021 the Oeiras public prosecutor’s office discontinued the investigation. It found that no intent to harm the applicants’ private life had been established on the journalists’ part. As for the publication of the photograph without their consent, it held that it had been shared voluntarily and publicly on the first applicant’s public Facebook profile page and was therefore accessible to everyone. The public prosecutor’s office noted that the report had focused on what the first applicant had written on his Facebook profile page and that the photograph in question had been blurred after a few seconds in order to focus on what the first applicant had written. In its decision, it also referred to well-established case-law of the Lisbon Court of Appeal, which provided that the most appropriate mechanism for protecting the right to one’s image was through liability proceedings.

6. On an unspecified date the applicants requested that a judicial investigation be opened (abertura de instrução). By a decision of 19 April 2022 the investigating judge at the Cascais Criminal Court decided not to remit the case for trial (despacho de não pronúncia). The investigating judge found that the first applicant had deliberately and publicly shared the photograph in question, which included his minor children, on a public part of his Facebook profile page, when he could instead have used an image of an object or landscape. It was also pointed out that the photograph had appeared only very briefly during the broadcast. The applicants appealed against that decision to the Lisbon Court of Appeal.

7. On 8 February 2023 the first-instance decision was confirmed by the Lisbon Court of Appeal, in so far as it concerned the breach of the right to the applicants’ private life. The court considered that from the moment that the photograph was publicly shared on the first applicant’s Facebook profile page, it had entered the public domain. It further noted that although there were ethical implications associated with broadcasting an image showing minor children, this did not in itself constitute the alleged criminal offences given that the photograph in question had been shared voluntarily.

8. Relying on Article 8 of the Convention, the applicants complained about the fact of their photograph being broadcast on the television news. They also alleged a failure by the domestic courts to protect their right to respect for private and family life.

THE COURT’S ASSESSMENT

9. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which extends to a number of aspects relating to personal identity, such as a person’s name or image, and furthermore includes a person’s physical and psychological integrity. The right to the protection of one’s image is thus one of the essential components of personal development (see Von Hannover v. Germany, no. 59320/00, §§ 50 and 53, ECHR 2004‑VI, and Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009).

10. The Court notes that, in cases such as the present one, what is in issue is not an act undertaken by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicants’ private life. It reiterates that the positive obligation inherent in Article 8 of the Convention may oblige the State to adopt measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. That also applies to the protection of a person’s picture against abuse by others. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 98 and 99, ECHR 2012, with further references).

11. The Court reiterates that the choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91 and Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003‑III).

12. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-79, 7 February 2012).

13. In cases such as the present one the Court considers that the outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the television channel who has broadcast the offending report or under Article 8 of the Convention by the person who was the subject of it seeing as these rights deserve equal respect (ibid., § 87).

14. Turning to the facts of the present case, in view of the applicants’ complaints (see paragraph 8 above), the question arises as to whether, by refusing to punish the television channel and the journalists responsible for the report in issue, the domestic authorities have failed to comply with the above-mentioned positive obligations.

15. The Court notes that the domestic courts found that the photograph in question had been posted publicly on the first applicant’s Facebook profile page and, in that way, had entered the public domain. They also took into account the fact that the photograph had been shown only very briefly (see paragraphs 6-7 above). On that basis, they dismissed the applicants’ request for judicial investigation. The Court sees no reason to depart from those findings, in so far as they were based on an assessment by the domestic courts of the conditions to be met for the acts in question to constitute a criminal offence as set out in Article 192 of the Criminal Code (see paragraph 4 above).

16. The Court further notes that in respect of the facts to which the complaint relates, the applicants chose to lodge criminal proceedings against the private television channel and its journalists responsible for the news report in question. Having been granted leave to intervene in the proceedings as auxiliary prosecutors (see paragraph 4 above), the applicants were accepted as victims in the proceedings as provided for in Article 68 of the Code of Criminal Procedure and, as such, were entitled to seek compensation under Article 71 of the Code of Criminal Procedure for the damage sustained, albeit subject to charges being brought against the defendants as provided for in Article 77 of the same Code.

17. The Court observes that the applicants were informed by the Oeiras public prosecutor’s office that, in accordance with well-established case-law, the most appropriate mechanism for protecting the right to one’s image was through liability proceedings (see paragraph 5 above). They nevertheless opted to institute exclusively criminal proceedings. The Court notes that those proceedings were unsuccessful, in that no intent on the journalists’ part to harm the applicants was established and the disputed events did not therefore constitute an offence (see paragraphs 5-7 above).

18. Having regard to the inevitable dissuasive effect the imposition of a criminal sanction may have on the freedom of the press (see, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI ), the Court is also of the view that, in the circumstances of the present case, separate liability proceedings could have been a more adequate remedy than the criminal avenue of redress used by the applicants. However, the applicants failed to explain in their application form why they believed that such proceedings would have been ineffective.

19. In view of these considerations, it cannot be said that the respondent State has failed to comply with its positive obligations under Article 8 of the Convention to secure the applicants’ right to respect for their private and family life.

20. It follows that this application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 August 2025.

Crina Kaufman Anja Seibert-Fohr
Acting Deputy Registrar President

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