Two cases at the European Court of Human Rights have been hailed as a victory for the press in its struggle against encroaching privacy laws – but editors would be wise to hold the order for new long lenses. Nor should footballers’ girlfriends be licking their highly glossed lips in expectation of newspaper cash taps being turned on for their kiss and tell stories.
The cases, Von Hannover v Germany (No 2) and in particular Axel Springer AG v Germany should be seen in a peculiarly German context in which “human dignity” and hence privacy, has tended to receive greater protection than in other European countries – including Britain.
It is true that the court in both cases acknowledged that readers and viewers might have a legitimate interest in public figures – but not necessarily just because they are famous. There has to be a context, described as “events of contemporary society” – a public interest reason for publication.
In the Axel Springer case reports about a TV actor arrested and prosecuted for cocaine possession had been injucted by the German courts – a situation that would be unheard of in Britain. The judgment acknowledged a public interest in legal and judicial matters where the German courts had sought to claim no one should have an interest in the actor beyond his TV role.
In Von Hannover Princess Caroline of Monaco and her husband Ernst August von Hannover complained of harassment by paparazzi and said pictures of the couple on holiday in 2004 did not contributed to a debate of public interest in a democratic society. “They served purely to satisfy the curiosity of a particular readership.” One was accompanied by text critical of some members of the family in relation to the illness of Prince Rainier of Monaco, then aged 80, who died in 2005.
Far from allowing open season on celebrities, the ECtHR acknowledges that “in certain circumstances, even where a person is known to the general public, he or she may rely on a ‘legitimate expectation’ of protection of and respect for his or her private life”. It notes that the issue is the alleged failure of the German state to protect such a right contrary to “positive obligations inherent in effective respect for private or family life” under Article 8 of the European Convention on Human Rights. “These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves” (so-called horizontality explained here).
But privacy rights must be balanced against Article 10 rights to freedom of expression “applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.
The articles did not … reveal details about X’s private life, but mainly concerned the circumstances of and events following his arrest – ECtHR in Axel Springer case
The court accepted privacy should be protected when pictures are published for entertainment only, not to illustrate an “event of contemporary society”. However it said: “The Court can therefore accept that the photos in question, considered in the light of the accompanying articles, did contribute, at least to some degree, to a debate of general interest” – on Prince Rainier’s illness (rather strained and oblique criticism in the Bild article of some family members for not being at his side at the time).
Weight is also given to the fact that the subjects of the photographs are public figures and that “the photos of the applicants in the middle of a street in St Moritz in winter were not in themselves offensive to the point of justifying their prohibition”. Publication was therefore not in violation of Article 8.
In Axel Springer AG v Germany the issue was articles about the arrest and later conviction for cocaine possession of a TV star who played a character called “Superintendent Y” for the purposes of the court proceedings. The newspaper story was based on information from the police at the scene of the arrest at the Munich beer festival in 2004. The actor had a previous cocaine conviction.
German courts had imposed injunctions on much of an article and photographs in Bild relating to the story (headlined: “Cocaine! Superintendent Y caught at the Munich beer festival.”) since they “resulted in his being pilloried and discredited in the eyes of the public”. Such reporting would have been justified only for more serious offences, the Hamburg Regional Court held. There was no great public interest in the actor as a private person as opposed to his screen persona.
In effect the argument was that there would not have been such sensational and prominent reports of an ordinary person, so there should not be such reports of a famous actor. He should be protected because he was famous.
The ECtHR rejected this view, noting that the stories were about “public judicial facts that may be considered to present a degree of general interest”. It rejected the suggestion that the actor was not very well known or that he had committed a petty offence. He had also previously sought the limelight. “The articles did not … reveal details about X’s private life, but mainly concerned the circumstances of and events following his arrest”. The German courts’ restraint on publication and penalties imposed on the publishers were a violation of Article 10 with a “chilling effect” on freedom of expression.
None of this would seem to affect the move towards “judge-made” privacy law in Britain, whether on issues such as those of model Naomi Campbell in Campbell v MGN or photographs of JK Rowling and her son. The first is an issue of confidentiality, even in a picture taken in a public space, and the latter is a matter of how far children should come under press scrutiny just because their parents are famous.
So in Von Hannover (No 1), the 2004 case in which the couple succeeded in an application regarding other photos, the European Court said it “considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest”. That position has not changed as a result of the new cases.
(Judgment delivered 7 February 2012)
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