Full case report

Lillo-Stenberg v Norway

Reference Application No.13258/09, [2014] ECHR 59
Court European Court of Human Rights (First Section)

Judge Isabelle Berro- Lefèvre P, Steiner, Hajiyev, Sicilianos, Møse, Turković & Dedov JJ

Date of Judgment 16 Jan 2014


Summary

Privacy – Photographs – wedding – Article 8 – Article 10 – European Court of Human Rights


Facts

The applicants were a well-known musician and an actress in Norway. On 20 August 2005, they married in a private ceremony which took place outdoors on an islet. The wedding party was held privately at a hotel close by on the mainland, to which the islet was directly linked.

Weekly magazine Se og Hør published a two-page article about the wedding, accompanied by six photographs. The photographs, taken approximately 250 meters from the islet with a 300-400 millimeter zoom, showed the bride, her father and bridesmaids arriving at the islet in a small rowing boat; the bride being brought to the groom by her father and the bride and groom returning to the mainland on foot by crossing the lake on stepping stones. In the last photograph, the bride was barefoot with her wedding dress raised above her knees to avoid getting the dress wet.

The accompanying article described the ceremony, the applicants and some of the guests. It stated, inter alia, that the ceremony was touching and that several guests could not hold back their tears when the bride arrived at the islet to the sounds of a male voice choir singing. It also stated that the applicants’ manager had informed the magazine that the applicants did not wish to comment on their wedding.

The applicants successfully brought compensation proceedings. The magazine appealed to the Norwegian Supreme Court, which found against the applicants, by three votes to two. Accepting that the article concerned the applicants’ private life, the majority did not make any express finding as to the article’s contribution to a debate of general interest but recognised that the provisions of Article 10 had no particular weight with respect to the article in question, which clearly had a purely entertainment value.  Upon consideration of the circumstances however, it held that no unlawful violation of privacy had occurred. They stressed that a wedding, although a very personal act, also had a public side. There was nothing unlawful in the neutral description of two individuals’ wedding and the article in question had not contained photographs of the actual wedding ceremony.  The majority cited Von Hannover v Germany (no.1), seemingly to contrast with the present case the climate of harassment in which the photographs of Princess Caroline had been taken.

Notwithstanding their finding that all individuals, including celebrities, were entitled to protection against being photographed even in public places, the majority was of the view that the spectacular nature of the wedding had to be taken into account. This was such as to attract attention from third parties, taking place in an area to which the public had a right of access, easily visible and a popular holiday destination. Although the photographs had been taken at a distance with a powerful zoom, for the bridal couple, the situation would not have been any better if the photography had taken place somewhere closer, or from a place where the photographer could have been seen by the wedding party. This could have disturbed the whole wedding.  They recognised the situation would have been different if the photographs had been of events taking placed in a closed area.

The minority agreed that the information that a marriage had taken place could be published without breaching privacy rights but took issue with the article as it described in words and pictures details of the arrangements for the wedding ceremony. Unlike the majority, it found that the fact that the public had a right of access to the islet (under the ‘Outdoor Recreation Act’) did not prevent the initial part of the wedding from being no less private than the wedding party, as it took place only a relatively short walk away and its location was directly linked with the hotel’s property. Although the magazine’s desire to entertain was legitimate, this did not justify overriding the applicants’ desire to protect their privacy.


Issue

Whether the Supreme Court’s judgment breached the applicants’ right to respect for their private life under Article 8 of the Convention?


Held

No violation of Article 8. The Court noted that the Norwegian Supreme Court had carefully balanced the right of freedom of expression with the right to respect for private life, and had explicitly taken into account the criteria set out in the Court’s case law. In such circumstances, although opinions may differ on the outcome of a judgment, the Court would require strong reasons to substitute its view for that of the domestic courts.

The Court reiterated general principles relating to private life and freedom of expression and the criteria relevant to the balancing exercise between Article 8 and 10 as set out in von Hannover (No.2) and Axel Springer AG. The latter were then applied to the facts of the case.

1.    Contribution to a debate of general interest

The Court 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, but also where it concerned sporting issues or performing artists.

The Court accepted the majority’s reasoning that a wedding has a public side but went an important step further than the domestic court by stating that there was, therefore, an element of general interest in the article about the applicants’ wedding.

2.    Notoriety of the persons concerned

Although the applicants had no public community functions, they were well-known performing artists, and accordingly public figures.

3.    Prior conduct of the person concerned

There was no information available to the Court about the applicants’ conduct prior to the publication of the article. In any event, 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. The Court referred to the view of the Supreme Court that the right to protection of privacy is no weaker for well-known cultural personalities than it is for others.

4.    Method of obtaining the information and its veracity/circumstances in which the photographs were taken

It was not in dispute that the applicants had not consented to the publication of the photographs or the accompanying article, which the photographer had obtained by hiding and using a strong telephoto lens from a distance.

The Court accepted the Supreme Court’s view that the very unusual way in which the wedding was organised and the fact that the ceremony took place in an area accessible to the public were elements which should be given a certain amount of weight.

5.    Content, form and consequences of the publication

The Court appeared to endorse the Supreme Court’s finding that neither the text nor the photographs in the disputed magazine article contained anything unfavourable to the applicants. The article did not contain any criticism, nor was there anything in the content that could damage their reputation. There were no photographs of the actual marriage ceremony either. It noted however, the view of the Supreme Court that, had there been photographs of the actual wedding ceremony, such a situation would clearly have had more personal significance than photographs showing the bridal couple arriving at or leaving the place where the wedding took place.


Comment

This decision illustrates the Court’s increasingly ‘light-touch’ approach to reviewing the findings of a national court in privacy challenges brought since Von Hannover (No.2).

Considered through the prism of English law, the result is perhaps somewhat surprising. Indeed, the photographs not only (i) depicted an essentially private occasion, not akin to the applicants “popping out for some milk”, (cfJohn v Associated Newspapers Ltd [2006] EWHC 1611 applying Campbell v MGN Ltd [2004] UKHL 22) and (ii) were taken surreptitiously with a powerful zoom, arguably in breach of the PCC Code, but also (iii) formed part of what can only be described as “entertainment journalism”. Whether the English courts would adopt the Court’s reasoning if similar facts were to arise in this jurisdiction is open to question.


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