ECHR: Von Hannover v. Germany
21 Jan 2009
The Court disagreed with the test adopted by the German courts which allowed photos of the Princess of Monaco to be published in the press and found a violation with her right to private life.
5 November 1996, Application No. 59320 (European Court of Human Rights)
|Theme:||Defamation; Other content restrictions|
|Sub-Issues:||Public figures and bodies, Privacy|
|Test:||Importance of Freedom of Expression; Fair balance between the rights of freedom of expression and the right to privacy|
|Penalty:||German courts provided only minimal protection to the family and private life of the princess of Monaco|
|Decision:||Violation of the right to private life (Article 8 ECHR); unanimous decision with the concurring opinions of Mr Cabral Barreto and Mr Zupančič|
|Jurisdiction:||European Court of Human Rights: United Kingdom|
The applicant was Princess Caroline von Hannover, the eldest daughter of Prince Rainier III of Monaco. During the period from 1993 to 1997 many pictures of her were published and republished in three German flagship magazines.
The Princess sought several injunctions in order to prevent these publications. More specifically, three sets of proceedings were initiated in Germany by the applicant, concerning three sets of pictures respectively:
- The first set, featuring seven photos: one photograph showing the applicant alone on a bicycle, two doing her shopping, one accompanied by the actor, Vincent Lindon, at the far end of a restaurant's courtyard, one photograph canoeing with her daughter, one showing her son only, as well as one showing her son with the aforementioned actor.
- The second set of photographs, featuring ten photos showing her on a skiing holiday, seven photos with Prince Hannover and four photos showing her leaving her house in Paris.
- The third set being a sequence of photos showing her at the Monte Carlo Beach Club, dressed in a swimsuit, tripping over and falling down.
With respect to the first set of proceedings:
- The Hamburg Regional Court granted the applicant's injunction only for the distribution of the magazines in France. As far as the magazines in Germany were concerned, the Court held that German copyright law should apply, in accordance with the rules of the International Private Law. The Court held that the applicant had failed to establish a legitimate interest, pointed out that the applicant was a figure of contemporary society "par excellence" and all the impugned photos had been taken exclusively in public places.
- The Hamburg Court of Appeal agreed with the Regional Court and set aside the injunction against subsequent publications in France, while it added that that the general public had a legitimate desire to be informed.
- The Federal Court of Justice (FCJ) allowed the applicant's appeal in part, granting her an injunction against any further publication of the photos showing her with Vincent Lindon in the restaurant courtyard. Unlike the regional court, the judges of the FCJ held that figures of contemporary society "par excellence" were also entitled to respect for their private life, in the case they had retired to a secluded place where it was objectively clear to everyone that they wanted to be alone and where, confident of being away from prying eyes, they behaved in a given situation in a manner in which they would not behave in public.
- The German Federal Constitutional Court (FCC) in a landmark judgment, allowed the applicant's appeal in part on the ground that the publication of the three photos featuring the applicant with her children had infringed her right to the protection of her personality rights, because it found that they were reinforced by her right to family protection. Moreover, it accepted the criterion of the seclusion brought forward by the FCJ, observing however that the freedom of the press could be given priority in the case of an "overriding" public interest. Therefore, it refused the appeal in regards to the other photos in its judgment and highlighted that the press has also a function of entertainment in the forming of the public opinion and that personalisation is an important journalistic means of attracting attention.
With respect to the second and third set of proceedings:
In both sets of proceedings, the applicant's arguments were rejected, the courts referring to the aforementioned judgment related to the first set of pictures. In respect to the third set of photos in particular, the Hamburg Regional Court, the Hamburg Court of Appeal and the Federal Constitutional Court accepted that the Monte Carlo Beach Club was not a secluded place, even though the access was restricted and an entry fee was charged.
The applicant submitted to the ECHR that the German court decisions had infringed her right to respect for her private and family life, guaranteed by Article 8 of the Convention.
Before examining the case in substance, the Court noted that the application concerns all photographs except the ones showing the applicant's children and the applicant with the actor Vincent Lindon, since they were no longer subject to this application according to its admissibility decision.
The judges agreed that the protection of private life implies a negative obligation on the State to abstain from interference in private life as well as a positive obligation to protect privacy, inherent in an effective respect for private or family life. According to the Court, a fair balance should be struck between the competing interests of the individual, whose privacy may be threatened, and the community as a whole, who has the right to be informed. In this respect, the state has a certain margin of appreciation.
The Court went on formulating some principles that the State should take into account while balancing the two values, namely:
- the obligations and responsibilities of the press
- the contribution made by the photos or articles in the press to a debate of general interest
- the fact that when freedom of expression extends to the publication of photos, the protection of the rights and reputation of others takes on particular importance.
- the fact that the photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.
Applying these principles in the instant case, the Court found that, freedom of expression called "for a narrower interpretation". In the Court's view, the pictures and articles related to the applicant consisted in personal or even intimate "information" about an individual and thus made no contribution in the public debate (para 61). In the Court's opinion, the applicant was not a "public figure" but a "private individual", since she did not exercise any function within or on behalf of the State of Monaco (or any of its institutions) and therefore, details of her private life could not be in any case a matter of any political or public debate. The judges argued that there was only a commercial interest of the magazines in publishing the photos - which was less important that the protection of private life (para 77). In addition, the Court could not disregard the applicant's lack of knowledge or consent, neither the continuous harassment she had to endure in her daily life in regards to the tabloids.
The Court also took into account the challenge of the new communication technologies, calling for more vigilance in protecting private life (para 70).
In conclusion, the Court found that the domestic courts had not struck a fair balance between the competing interests between the right of the public to be informed and the protection of the private life of the applicant and noted a breach of Article 8 of the Convention.
Two judges were of the opinion that there had been a violation of the Convention, but could not however follow the entire reasoning of the majority.
The judge Barreto stressed that although the applicant does not perform any functions on behalf of the state of Monaco, she is however a public figure and the public have the right to be informed about her life. In Judge Barreto's view "the general interest does not have to be limited in political debate". He proposed a test of "legitimate expectation to be safe from the media" to be used instead. Accordingly, the Beach Club was public - no legitimate expectation, however, the tennis and the horse riding were not - legitimate expectation exists.
The Judge Zupančič adhered to judge's Barreto argument. He added that "the absolute incognito existence is the privilege of Robinson; the rest of us all attract to a greater or smaller degree the interest of other people".
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