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.