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.