Reference:  EMLR 379; (2005) 40 EHRR 1
Court: European Court of Human Rights
Judge: Cabral Barreto P, Ress, Caflisch, Turmen, Zupancic, Hedigan & Traja JJ
Date of judgment: 24 Jun 2004
Summary: Human Rights- Privacy - Paparazzi - Photographs - Reasonable Expectation of Privacy - Public Place - Freedom of Expression
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On 15 December 1999 the Federal Constitutional Court of Germany granted Princess Caroline of Monaco an injunction restraining the publication of photographs in which she appeared with her children. It did so on the ground that their need for protection of their intimacy was greater than that of adults. However, the German Court considered that the applicant, who was undeniably a contemporary “public figure”, had to tolerate the publication of photographs of herself in a public place, even if they showed her in scenes from her daily life rather than engaged in her official duties. The Court referred in that connection to the freedom of the press and to the public’s legitimate interest in knowing how such a person generally behaved in public.
Whether the decisions of the German courts infringed her right to respect for her private life under Article 8 because they failed to afford her adequate protection from the publication of photographs taken without her knowledge by paparazzi.
Although freedom of expression extended to the publication of photographs, the rights and reputation of others took on particular importance as the photographs did not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Paparazzi photographs were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution. The decisive factor in balancing Articles 8 and 10 lay in the contribution that the photographs and articles made to a debate of general interest. The general public did not have a legitimate interest in knowing the Applicant’s whereabouts or how she behaved generally in her private life even if she appeared in places that were not private. Everyone, including celebrities, had a “legitimate expectation” that his or her private life would be protected. There had been a violation of Article 8.
This is another significant decision from the ECHR on privacy. It stands as a further example of the difficulties of the English Court’s attempt to “shoe-horn” the law of privacy into the law of breach of confidence. Together with Peck, it is likely to force the English Courts (and the Press Complaints Commission) to reconsider their refusal to accept that photographs of individuals taken in public or semi-public places can be protected by the law of privacy. The PCC routinely dismisses complaints on the grounds that a person cannot have a reasonable expectation of privacy for activities that take place in public or semi-public places. Further, the ECHR’s insistence that the value of the speech must be taken into account in the balancing of Article 10 and Article 8 rights potentially further threatens the typical sort of celebrity kiss ‘n’ tell story which forms the staple diet of many tabloids and celebrity magazines.