Full case report
von Hannover v Germany (No. 3)
Reference Application No.8772/10
Court European Court of Human Rights (Fifth Section)
Judge Villiger P, Nußberger, Power-Forde, Yudkivska, Lemmens, Jäderblom & Pejchal JJ
Date of Judgment 19 Sep 2013
Privacy – human rights – public interest – public figure – debate of general interest – photographs
On 20 March 2002, the German magazine 7 Tage published an article drawing attention to the recent trend among celebrities of renting out their holiday homes. It went on to describe in detail the von Hannover family villa, located on an island off the Kenyan coast, setting out the furnishings, daily rental cost and holiday pastimes in the area. The article featured alongside several photographs of the villa, as well as one photograph showing Princess Caroline and her husband on holiday in an unidentifiable location (“the photograph”). The photograph had been taken without their knowledge, but they were in the company of other persons and it disclosed no information about the location or how they were spending their holidays.
The applicant, Princess Caroline, issued proceedings in the German courts on 29 November 2004. The Hamburg Regional Court found in favour of the applicant, but was overturned by the Court of Appeal on the ground that her rights had to yield to the fundamental rights of the press. Initially, the Federal Court of Justice found in her favour, granting an injunction against any further publication of the photograph. On 26 February 2008, however, the Federal Constitutional Court quashed the judgment and remitted the case back to the Federal Court of Justice. It emphasised that it was insufficient to state merely that a celebrity’s holidays fell within the core area of his or her protected private sphere.
On 1 July 2008, the Federal Court of Justice ruled again and dismissed the applicant’s appeal on points of law. It did so on the grounds that the applicant was a public figure and that, while the photograph did not relate to a subject of general interest, the publisher’s freedom of expression should not be overridden by the applicant’s right to respect for private life. The report was capable of stimulating discussion on a matter of general interest and could therefore legitimately be accompanied by the photograph.
The Federal Constitutional Court declined to consider a further appeal lodged by the applicant.
Did the German courts’ refusal to grant an injunction against any further publication of the photograph constitute a breach of the applicant’s privacy rights under Article 8?
Having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, Germany had not failed to comply with its positive obligations under Article 8. The German courts had given due consideration to the criteria for the balancing exercise as set out in Von Hannover v Germany (No.2) and Axel Springer AG v Germany, namely:
(1) Whether the information contributed to a debate of general interest
The Court began by recalling that the Federal Court of Justice had changed its approach following the first Von Hannover judgment and considered both whether the report in question contributed to a factual debate and whether its contents went beyond a mere desire to satisfy public curiosity.
The German courts, the Court noted, had taken the view that the purpose of the article was to relay the trend among celebrities of renting their holiday homes. This could generate reactions and a dialogue among readers, thereby contributing to a debate of general interest. The Court added that the article gave practically no details relating to the private life of the applicant and husband, but rather focused mainly on the characteristics of the von Hannover villa. It could not, consequently, be claimed that the article was a mere pretext for publishing the photograph and that the link between the two was purely artificial. The Court therefore could accept that the photograph in question, considered in light of the accompanying article, did contribute, at least to some degree, to a debate of general interest.
(2) The notoriety of the person concerned
The Court reiterated that it had previously made clear in Von Hannover v Germany (No.2) that the applicant and her husband must be regarded as public figures, unable to claim the same protection for their private life as ordinary private individuals.
(3) The prior conduct of the person concerned
The Court noted the applicant’s point that the German courts had failed to give explicit consideration to her efforts to keep her private life out of the press, as manifested by previous legal proceedings. The German courts had however considered this in substance, which was deemed by the Court to constitute sufficient consideration for the purpose of balancing the competing interests at stake.
(4) The content, form and consequences of the publication
The Court noted, without making any comment, that the German courts had designated the picture as being small in size and not of itself capable of constituting a violation of Article 8.
(5) The circumstance in which the photos were taken
As Princess Caroline had failed to adduce evidence before the German courts that the photograph had been taken surreptitiously or by equivalent means, the circumstances in which the photos were taken did not require a more thorough examination by the Court.
This decision is consistent with the Court’s earlier decision in von Hannover (No.2) insofar as it affirms that where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court will require strong reasons to substitute its view for that of the domestic courts. The Court cited as an example a situation where the link between the article and photograph in question would be considered purely arbitrary and artificial.
Where the decision appears to part company with von Hannover (No.2), however, is in the lack of any need for a link between the subject-matter of the photograph and the article it illustrates. The photograph of the applicant on holiday, considered in light of the article, was found to contribute to a debate of general interest, not because it supported and illustrated the information conveyed, as in von Hannover (No.2), but because it could not be said that the article was a mere pretext for publishing the photograph. No explanation was offered as to why the photograph showing the applicant and her husband at an unidentified location was sufficiently linked to an article which, in the Court’s own words, focused mainly on the practical details relating to the villa in Kenya. Furthermore, it appears that the boundaries of what constitutes a “debate of general interest” are continuing to expand.
Having said this, whilst it is difficult not to sympathise with the Princess, who succeeded at first instance and on her first visit to the Federal Court of Justice, only to fail in the Constitutional Court, on her second visit to the Federal Court, and then in the ECHR, her claim would very probably have failed in the English courts: the photograph itself was anodyne and, although taken without her consent, it seems unlikely that our courts would have found that she had a reasonable expectation of privacy in relation to its publication, absent circumstances constituting harassment: see eg Murray v Express Newspapers plc  Ch. 481,  EMLR 12 (CA).
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 3rd Edition of The Law of Privacy and the Media, published by OUP. Further details here.