Full case report
Axel Springer AG v Germany
Reference Application No.39954/08
Court European Court of Human Rights (Grand Chamber)
Judge Nicolas Bratza P, Costa, Tulkens, Casadevall, Garlicki, Lorenzen, Jungwiert, Jaeger, Björgvinsson, Šikuta, Villiger, Guerra, Trajkovska, Tsotsoria, Kalaydjieva, Poalelungi & Pardalos JJ
Date of Judgment 7 Feb 2012
Article 8 – Article 10 – privacy – reputation – freedom of expression
The applicant (X), a German television actor, was well-known for his role from 1998 to 2003 as Police Superintendent Y, the hero of a popular television series broadcast on a private television channel in the evening until 2005.
On 23 September 2004, X was arrested at the Munich beer festival for possession of cocaine. The applicant company, a newspaper publisher, subsequently published a front-page story detailing X’s arrest and later, on 7 July 2005, an article covering X’s trial and conviction for unlawful possession. Both articles were accompanied by photographs of X and made various references to his TV character.
X issued domestic proceedings against the applicant company and in November 2005, the Hamburg Regional Court prohibited any further publication of almost the entire first article. The court found that whilst a drugs-related offence was not a petty crime, the type of offence involved was of medium, or even minor, seriousness and that there was no particular public interest in knowing about it. The report had focused more on X’s person than on the offence, which would probably never have been reported on in the press if it had been committed by a person unknown to the public. The court held that in the present case, the right to protection of X’s personality rights under Art 823(1) of the German Civil Code prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. The judgment was upheld by the Court of Appeal and in November 2006, by the Federal Court of Justice.
In relation to the second article, the Hamburg Court of Appeal upheld the Hamburg Regional Court’s injunction in September 2006 on essentially the same grounds as those given in relation to the first article. Both the Federal Court of Justice and Federal Constitutional Court later declined to entertain appeals lodged by the applicant company.
Both parties accepted that German courts’ decisions constituted an interference with the applicant company’s right to freedom of expression as guaranteed by Article 10 of the Convention.
The parties however disagreed as to whether the interference was “necessary in a democratic society”, as permitted under Article 10 § 2.
By a majority (12 votes to 5), that there had been a violation of Article 10. On balance, the grounds advanced by the Government, although relevant, were not sufficient to establish that the interference complained of had been necessary in a democratic society.
(1) General principles
(a) The Court set out well-known general principles from its case-law concerning freedom of expression and the essential role of “watch-dog” played by the press in a democratic society. Not only does the press have the duty to impart information and ideas on all matters of public interest – including court proceedings – the public also has a right to receive them.
(b) The Court reiterated that the right to protection of reputation is a right which is protected by Article 8 as part of the right to respect for private life. In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life.
(c) The Court reiterated that Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under Article 10 is necessary. In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on.
(2) Criteria relevant for the balancing exercise
Where the right to freedom of expression is being balanced against the right to respect for private life, the criteria laid down in the case-law that were relevant to the present case were:
(a) Whether the information contributes to a debate of general interest
The initial and essential criterion to consider is the contribution by the photographs or articles to a debate of general interest. The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considered it useful to point out that it had recognised the existence of such an interest not only where the publication concerned political issues or crimes.
The articles in question concerned public judicial facts – the arrest and conviction of X – which could be considered to present a degree of general interest. The public do, in principle, have an interest in being informed and in being able to inform themselves about criminal proceedings, whilst strictly observing the presumption of innocence.
(b) The notoriety of the person concerned and the subject matter of the report
A distinction has to be made between private individuals and persons acting in a public context, as political or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures.
At the material time, X was the main actor in a very popular detective series. Accordingly, he was not, as the Regional Court had appeared to suggest, a minor actor whose renown was limited. Whilst it could be said that the public does generally make a distinction between an actor and the character he or she plays, the fact that X was mainly known for his role as Superintendent Y, whose mission was law enforcement and crime prevention, was such as to increase the public’s interest in being informed of X’s arrest for a criminal offence. Having regard to these factors, X was sufficiently well known to qualify as a public figure.
(c)The prior conduct of the person concerned
Although previous behavior would be scrutinized, the mere fact of having cooperated with the press on previous occasions could not serve as an argument for depriving a party of all protection against publication of the photograph at issue.
By revealing details about his private life in a number of interviews, X had actively sought the limelight, with the result that his “legitimate expectation” that his private life would be effectively protected was reduced.
(d) Method of obtaining the information and its veracity
Journalists must act in good faith, on an accurate factual basis and provide reliable and precise information in accordance with the ethics of journalism.
Notwithstanding the applicant’s company unfounded assertion that a press conference had been held and a press release issued prior to the publication of the first article, all of the information revealed by the applicant company had been confirmed by the prosecutor. Likewise, when the second article appeared, the facts leading to X’s conviction were already known to the public. It had not been shown that the applicant company had acted in bad faith when publishing the articles in question.
(e) Content, form and consequences of the publication
The way in which the photograph or article is published, the manner in which the person concerned is represented therein and the extent of dissemination may be important factors.
The articles did not reveal details about X’s private life, but mainly concerned the circumstances of and events following his arrest. The inclusion in the first article of certain expressions designed to attract the public’s attention did not raise an issue. The Government had not proved that the publication of the articles had resulted in serious consequences for X.
(f) Severity of the sanction imposed
Although lenient sanctions had been imposed, these were capable of having a chilling effect on the applicant company. In any event, they were not justified in the light of the factors set out above.
Finding a sufficient causal link between the violation found and the amounts claimed by the applicant company, the latter was awarded EUR 17,734.28 in damages, made up of EUR 1,000 in respect of one of three penalties it had been required to pay X, along with X’s lawyers’ fees and other legal costs. It declined to award damages for the EUR 10,000 which the applicant had had to pay by way of penalties for breaching the injunction to restrain publication of the second article.
This decision, delivered on the same day as Von Hannover (No.2), provides a useful checklist for English courts to consider when carrying out the balancing exercise between Art 8 and Art 10 rights in misuse of private information claims. No doubt it will be welcomed by the media as confirming their right to report on the activities of “public figures” when relevant to “a debate of general interest”, two concepts which appear to have been given a more generous interpretation than has sometimes been the case in the past. However, it is difficult to imagine that X’s claim would have succeeded in an English court, given the strong public interest in the reporting of judicial proceedings, and given that the articles contained no details about X’s private life and no unsubstantiated allegations.
Two further points to note from the judgment are (a) the novel and perhaps surprising finding that the fictitious role an actor or actress is famous for may have a legitimate bearing on the public’s interest in being informed of events taking place in his or her private life, and (b) the Court’s view that X’s prior revelation of details of his private life in the media meant that he could not expect the same level of protection for his privacy (cf the treatment of Princess Caroline’s argument in Von Hannover (No.2) that she had never sought to publicise details of her private life).
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