Full case report
von Hannover v Germany (No. 2)
Reference (2012) 55 E.H.R.R. 15
Court European Court of Human Rights (Grand Chamber)
Judge Nicolas Bratza P, Costa, Tulkens, Casadevall, Garlicki, Lorenzen, Jungwiert, Jaeger, Bjorgvinsson, Sikuta, Villiger, Guerra, Trajkovska, Tsotsoria, Kalaydjieva, Poalelungi & Pardalos JJ
Date of Judgment 7 Feb 2012
Privacy – Photographs – Article 8 – public figure- public interest – injunction – debate of general interest
From 2002 to 2004, the German magazines, Frau im Spiegel and Frau Aktuell, published a series of photographs showing the Applicants, Princess Caroline of Monaco and her husband, on skiing holidays in St Moritz and Zürs. Of the three photographs published in Frau im Spiegel, one was accompanied by an article describing the ill-health of Princess Caroline’s father, Prince Rainier III, the then reigning sovereign of Monaco (“the first photograph”). The photograph in Frau Aktuell was virtually identical and featured alongside a similar article.
On 26 February 2008, the Federal Constitutional Court upheld the Federal Court of Justice’s refusal to grant Princess Caroline an injunction against any further publication of the first photograph by Frau im Spiegel. It did so on the grounds that the information value of the photograph fell to be assessed in the context of the accompanying article. In relation to the second photograph, neither the article nor the photo related to an event of general interest or contemporary society. The information centered exclusively on Princess Caroline’s private life and served merely entertainment purposes. In relation to the third photograph, although the article referred to an event of contemporary society that was a matter of general interest (the Rose Ball in Monaco), there was no connection between the photograph and the event. The photographs could only be published with her consent. Regarding the first photograph however, whilst it contained no information contributing to a debate of general interest, the same was not true of the accompanying text. The illness affecting Prince Rainier constituted a matter of general interest. The press had accordingly been entitled to report on the manner in which the prince’s children reconciled their obligations of family solidarity with the legitimate needs of their private life, namely the desire to go on holiday. The photograph in question therefore had a sufficiently close link with the event described in the article.
The Applicants’ separate claim for an injunction against Frau Aktuell failed on similar grounds before the Federal Court of Justice on 6 March 2007. The Applicants applied to the ECHR alleging a breach of their Art 8 rights.
Whether the refusal by the German courts to grant an injunction against any further publication of the photographs infringed the Applicants’ right to respect for their private life under Article 8 of the Convention.
Noting the German courts’ change of approach since the first Von Hannoverjudgment and having regard to the margin of appreciation enjoyed by national courts when balancing competing interests, the Court found no violation of Article 8. The Court set out five relevant criteria for domestic courts to consider when balancing rights under Articles 8 and 10:
(1) 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 matter of general interest will depend on the circumstances of the case and is not limited to political issues or crimes but extends as well to publications concerning sporting issues or performing artists.
The German courts’ assessment of the information value of the photographs in light of the accompanying articles could not be criticised under the Convention. A sufficiently close link between the photographs and the event described in the articles had been found.
In this regard, the Court noted that the German courts had upheld an injunction forbidding the publication of the two other photographs showing the Applicants in similar circumstances, precisely on the grounds that they were being published for entertainment purposes alone. The Court accepted that the photographs in question, considered in light of the accompanying articles relating to Prince Rainier’s illness, did contribute, at least to some degree, to a debate of general interest.
In so far as the Applicants argued that the media would use any event of contemporary society as a pretext to justify the publication of photographs of them, the Court noted it was not its task to rule on the conformity of future publications. It did, however, endorse the Federal Constitutional Court’s caution that where an article was merely a pretext for publishing a photograph of a prominent person, there would be no contribution made to the formation of public opinion or grounds for allowing the media’s Article 10 rights to prevail.
(2) The notoriety of the person concerned
Reiterating its case law that public figures could not claim the same protection for their private life as ordinary individuals, the Court considered that irrespective of the question whether and to what extent the First Applicant assumed official functions on behalf of the Principality of Monaco, it could not be claimed that the Applicants, who were undeniably well known, were ordinary private individuals. The Applicants were clearly public figures.
(3) 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. The Court however did not engage with the Applicants’ alleged continuous attempts to shelter their private lives from press intrusion.
(4) The 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. Applied to the facts, the Court only noted that the photographs of the Applicants in the middle of a street in St Moritz in winter were not of themselves offensive to the point of justifying their prohibition.
(5) The circumstance in which the photos were taken
Whether the person photographed gave their consent to the taking of the photographs and subsequent publication or whether this was done without their knowledge or by subterfuge will be relevant considerations. The nature or seriousness of the intrusion and the consequences for the persons concerned must be considered.
The Applicants alleged that the photographs had been taken in a climate of general harassment, yet had not adduced specific evidence of unfavourable circumstances before the domestic courts. In light of this omission and the existing provision in German case law for consideration of the circumstances in which photographs were taken, this factor did not require a more thorough examination by the Court.
The categorisation of Princess Caroline as a “public figure”, irrespective of the question whether and to what extent she assumed official functions, is hard to reconcile with the Court’s earlier Von Hannover judgment of 2004(Von Hannover (No.1)). In that case Princes Caroline, despite “being known to the public”, was held to be a “private” individual, “in whom the interest of the general public and the press was based solely on the membership of the reigning family, whereas she herself did not exercise any official functions”. However, in Von Hannover (No.2), the Court was not willing to accept that the applicants, who were “undeniably well-known”, could be claimed to be “ordinary private individuals”. It followed that “they must, on the contrary, be regarded as public figures”. But the Court in Von Hannover (No.1) had never held Princess Caroline to be an “ordinary” private individual. Rather it held that she was a “private” individual but equally known to the public for the reasons set out above.
In any event, with a relaxation of the terms “public figure” and “debate of general interest”, the scope of what will constitute a Convention-compliant publication appears to have been widened, but also perhaps rendered less clear. At least where the photographs are anodyne in character, and there has been no subterfuge or harassment in the taking of them, “public figures” seeking to prevent the publication of photographs will encounter greater difficulty in doing so where these are featured alongside articles that could reasonably be said to meet the general interest threshold.
The court’s finding that the German court had acted within the margin of appreciation would appear to be an acceptance that the Article 8/Article 10 balance will not always be struck in the same way as the court conceived of it in the first von Hannover judgment. Given the way in which the balancing exercise would have been struck on similar facts under English law, it is debatable whether the decision affects the position here. However, it may be welcomed by publishers as a recognition that privacy across Europe is not one-size-fits-all.
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