The Czech Prime Minister Andrej Babiš has been investigated for alleged criminal fraud in his business dealings – farm and conference centre called “Stork Nest” (Čapí hnízdo in Czech) so that it would qualify for EU small business subsidies. The Prime Minister stated in the Parliament that at the time the funds were obtained, the centre belonged to his adult children, of whom one was Andrej Babiš Jr.
Therefore, along with the Prime Minister, his son has been charged in the long-running investigation into allegations that nearly €2m from EU funds were falsely obtained.
Andrej Babiš Jr. however disappeared and was never questioned by police. On top of it, the psychiatrist (member of Babiš party) provided psychiatrist report that he is not capable for criminal investigation due to his mental health. Two Czech journalists spent a year tracking him downand found him in the Switzerland where they found his place of living with his mother. They rang a bell at his door and told his mother they would like to speak with her son. She told them he is not well but in a few seconds he appeared and started conversation with the reporters who introduced to him as reporters but did not tell him that they are secretly filming him via hidden camera in the glasses.
On the video, taped by a hidden camera, Andrej Babis Jr told investigative reporters from the Seznam news site (Seznam zprávy) that he was taken against his will to Crimea by the driver of his father and also husband of the psychiatrist who was in charge of him. He said that he took advantage of the fact that his father wanted him to disappear because of the investigation. He further said that his father wanted him out of the way of the criminal inquiry and that he had been given the choice of “taking an extended holiday” in Crimea or being locked up in a mental hospital. In respect of the fraud he said he had been made to sign some papers on the matter but did not understand what they were.
Apart from political, criminal and ethical consequences, the media and public have been interested in legal questions of the reportage. The questions that our legal office has been often answering are these:
1) Was usage of hidden camera in accordance with law?
The Czech Civil Code states that an image or audio or video recording may, without the consent of an individual, be reasonably and not in conflict with the legitimate interests of the individual, made or used for print, radio, television or similar coverage. It is therefore necessary to know exact facts to state if the hidden camera interview was made and used reasonably.
2) Was there a public interest and what are the limits of the public interest?
Public interest, despite not defined in the Civil Code is the key criteria for evaluation of the legality or illegality of the infringement of the personal rights. It is one of the elements taken in consideration in the proportionality test when two basic constitutional rights are in conflict – freedom of speech and protection of personal rights. Is freedom of speech more than protection of privacy? Both rights are constitutional rights and are protected on EU and international level, no right has priority.
3) Would be sufficient backward consent? Can be the consent implicitly presumed from the fact that he started to communicate with the journalists?
It will be backward legitimization. In respect of his later email communication, if this presumes the consent for sharing it is impossible to answer without having exact knowledge about his state of mind and alleged illness.
4) Can Mr. Babiš Jr. sue the newspaper, if so for what?
Without verified facts, statements, opinion and position of Mr. Babiš Jr. it is not possible to answer. However, if he will state that his rights (privacy, name, honest, dignity, image right, family life) were infringed, he might be successful as the reportage itself made some mistakes at least identification of his place of living.
Author of the image – David Sedlecký