The ruling is expected to encourage courts throughout Europe to
take a stronger line over the publishing of images of celebrities
who do not have official functions or who do not seek public
attention.
The background
Forty-seven year old Princess Caroline von Hannover has been
campaigning in various European countries for over 10 years,
fighting against the publication of photographs about her private
life.
The daughter of Prince Rainier of Monaco and film star Grace
Kelly lives mostly in France, where her prior agreement is
necessary for the publication of any photos not showing her at an
official event. However there is nothing to stop photographs being
taken and then published in another country, such as the UK or
Germany, which rely on a "public interest" requirement to justify
publication.
The Princess has on several occasions unsuccessfully applied to
the German courts for an injunction preventing any further
publication of a series of photographs that had appeared in the
1990s in the German magazines Bunte, Freizeit Revue and Neue Post.
She claimed that they infringed her right to privacy and her right
to control the use of her image.
The photos showed the Princess involved in such innocuous
activities as skiing, shopping, leaving a restaurant or simply out
walking.
In a landmark judgment in 1999 the German Federal Constitutional
Court granted the Princess an injunction regarding some of the
photographs - in which she appeared with her children - on the
ground that their need for protection of their intimacy was greater
than that of adults.
However, the Constitutional Court considered that the Princess,
who is 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 explained that her right
to privacy was overridden by the freedom of the press and the
public's legitimate interest in knowing how such a person generally
behaved in public.
The European Court of Human
Rights
The Princess took her case to the European Court of Human Rights
(ECHR) in Strasbourg, arguing that the decisions of the German
courts infringed her right to privacy and her right to respect for
her family life, both of which are protected under the
Convention.
The Court ruled that there was no doubt that the publication by
the German magazines of photographs of the Princess in her daily
life, either on her own or with other people, fell within the scope
of her private life. The Convention, it decided, was therefore
applicable.
The real issue was how and where to balance the need for
protection of the Princess's private life against freedom of
expression, which is also guaranteed under the Convention.
The Court ruled that although freedom of expression also
extended to the publication of photographs, this was an area in
which the protection of the rights and reputation of others took on
particular importance, explaining:
"The present case does not concern the dissemination of 'ideas',
but of images containing very personal or even intimate
'information' about an individual. Furthermore, photos appearing in
the tabloid press are often taken in a climate of continual
harassment which induces in the person concerned a very strong
sense of intrusion into their private life or even of
persecution."
The Court considered that the decisive factor in balancing the
protection of private life against freedom of expression should lie
in the contribution that the published photographs and articles
made to a debate of general interest.
In the case before it, said the Court, the photographs showed
Caroline von Hannover in scenes from her daily life, and thus
engaged in activities of a purely private nature. The Court noted
in that connection the circumstances in which the photographs had
been taken: without her knowledge or consent and, in some
instances, in secret. It was clear that they made no contribution
to a debate of public interest, since she exercised no official
function and the photographs and articles related exclusively to
details of her private life.
Furthermore, said the Court, while the general public might have
a right to information, including, in special circumstances, on the
private life of public figures, they did not have such a right in
this instance.
The Court considered that the general public did not have a
legitimate interest in knowing Caroline von Hannover's whereabouts
or how she behaved generally in her private life even if she
appeared in places that could not always be described as secluded
and was well known to the public.
The Court reiterated the fundamental importance of protecting
private life "from the point of view of the development of every
human being's personality" and said that everyone, including people
known to the public, had to have a "legitimate expectation" that
his or her private life would be protected.
The Court also stressed that "increased vigilance in protecting
private life is necessary to contend with new communication
technologies which make it possible to store and reproduce personal
data".
"This also applies to the systematic taking of specific photos
and their dissemination to a broad section of the public," said the
Court.
In the Court's opinion, the German courts had not struck a fair
balance between the competing interests, and there had been a
violation of the Princess's right to privacy.
Having made this ruling there was no need to consider the issue
of respect for the Princess's family life, said the Court.
Mattias Prinz, lawyer for the Princess, told Reuters: "This is
very good for my client and for all people in Europe because the
court is raising the standard of protection of private life to a
level higher than in Germany – to the level of France".
The implications
In practice, the ECHR has no authority to overrule the original
decision of the German Constitutional Court, but can fine the
German Government if the ruling is not changed. Germany has three
months to appeal.
The ruling will also have an impact on how privacy is enforced
within the UK, following the bringing into force of the 1998 Human
Rights Act. This incorporated the European Convention on Human
Rights into UK law, and means that judgments of the ECHR should now
be taken into account by UK courts.
Dr. Chris Pounder of Masons, the firm behind OUT-LAW.COM, and
Editor of Data Protection and Privacy Practice, said: "The ruling
is important as it specifies that when UK newspapers publish
pictures in future on grounds of serving the 'public interest',
there has to be some contribution towards a debate of general
interest. Pictures which depict a person's private life in the
absence of such a contribution - for instance, merely to titillate
the reader - could become actionable on human rights grounds - even
if the photos are taken in a public place."
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.
