Privacy v the right to freedom of expression ... - Farrer & Co

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Privacy v the right to freedom of expression:
Clarification from the ECHR
Harriet Brown | February 2012
The European Court of Human Rights (“ECHR”) recently delivered two judgments that explore the balancing exercise
to be carried out between the right to freedom of expression, as set out in Article 10 of the European Convention on
Human Rights (“the Convention”), and the right to respect for private life, as set out in Article 8 of the Convention.
Case 1
A person’s expectation of privacy in a public place has been given new focus in Von Hannover v Germany (no.2).
The Grand Chamber of the ECHR upheld that publication of a photograph of Princess Caroline of Monaco whilst on
holiday was justified, under Article 10 of the Convention, as contributing to a debate of general interest.
Background
In 2004 Princess Caroline sought an injunction against the further publication of photographs that had appeared in the
German magazine Frau im Spiegel. The first photograph showed Princess Caroline and her husband out for a walk
during their skiing holiday in St Moritz and was accompanied by an article about the illness of her father, Prince
Rainier III. The second and third photographs similarly depicted Princess Caroline and her husband during their skiing
holiday but the corresponding captions made no reference to Prince Rainier’s health.
The German courts originally granted an injunction against the magazine. However, on appeal, the injunction was set
aside. It was held that the publication of the first photograph was justified because the accompanying article discussed
the ill health of the reigning Prince of Monaco, and so contributed to a debate of general interest. As such, the press
were entitled to report on how the prince's children reconciled family solidarity with the legitimate needs of their private
life.
Princess Caroline and her husband subsequently applied to the ECHR, arguing that the refusal by the German courts
to uphold that the injunction infringed their right to privacy.
Judgment
The Grand Chamber considered the following factors when balancing the right to freedom of expression against the
right to respect for private life:
(i)
(ii)
(ii)
Contribution to a debate of general interest;
How well known the person is and the subject matter of the report;
Prior conduct of the person concerned;
(iv) Content, form and consequences of the publication; and
(v)
Circumstances in which photographs are taken.
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The Grand Chamber decided that:
“The Court observes that, in accordance with their case-law, the national courts carefully balanced the right of
the publishing companies to freedom of expression against the right of the applicants to respect for their private
life. In doing so, they attached fundamental importance to the question whether the photos, considered in the
light of the accompanying articles, had contributed to a debate of general interest. They also examined the
circumstances in which the photos had been taken.”
“In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when
balancing competing interests, the Court concludes that the latter had not failed to comply with their positive
obligations under Article 8 of the Convention. Accordingly, there has not been a violation of that provision.”
Accordingly, it unanimously found that the second and third photographs did not contain information related to an
event of contemporary society, nor contribute to a debate of general interest. However, the first photograph, in light of
the accompanying article on Prince Rainier’s illness, contributed to a debate of general interest.
Case 2
The interplay between Articles 8 and 10 was again considered in Axel Springer AG v Germany where the ECHR
upheld a complaint by Axel Springer, the publisher of the German tabloid newspaper Bild, that the further publication
of articles about a well-known TV actor represented a proper exercise of its freedom of expression which outweighed
the actor's right to a private life.
Background
The case concerned the publication of two articles reporting the arrest of a well-known television actor for possession
of cocaine. On 29 September 2004, Bild published an article entitled “Cocaine! Superintendent Y caught at the Munich
beer festival” and “TV series Superintendent X confesses in court to having taken cocaine. He is fined 18,000 euros!”
on 7 July 2005.
The German courts issued injunctions against further publication of the articles, on the basis that the offences were of
a minor nature and the actor's interest in protecting his right to privacy outweighed any argument of public interest.
Having exhausted domestic routes of appeal, the publisher appealed to the ECHR on the basis that the domestic
courts’ decisions represented an unwarranted interference with its rights to freedom of expression.
Judgment
The Grand Chamber stated that Articles 8 and 10 deserved “equal respect” as a matter of principle. In making the
decision, the Court considered the following factors:
(i)
(ii)
(iii)
Contribution to a debate of general interest;
How well known the person concerned is and the subject matter of the report;
Prior conduct of the person concerned;
(iv) Method of obtaining the information and its veracity;
(v)
Content, form and consequences of the publication; and
(vi) Severity of the sanction imposed.
According to the Grand Chamber there were not sufficiently strong grounds for preserving the actor’s anonymity,
having regard to the nature of the offence committed, the degree to which the actor was well-known to the public, the
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circumstances of his arrest and the veracity of the information in question. The ECHR held by twelve votes to five that
there had been a violation of the press’ right to freedom of expression.
“In conclusion, the grounds advanced by the respondent State, although relevant, are not sufficient to establish
that the interference complained of was necessary in a democratic society. Despite the margin of appreciation
enjoyed by Contracting States, the Court considers that there is no reasonable relationship of proportionality
between, on the one hand, the restrictions imposed by the national courts on the applicant company’s right to
freedom of expression and, on the other hand, the legitimate aim pursued. Accordingly, there has been a
violation of Article 10 of the Convention.”
Implications of decisions
The Grand Chamber’s decisions were welcomed by the media. They provide scope for arguing that publication of
private information is justified under freedom of expression where there is a contribution to a debate of general
interest. Additionally, both cases provide a useful re-statement of the principles to apply when balancing the rights to
privacy and freedom of expression. It will be interesting to see how the English courts apply the principles of Von
Hannover (No.2) and Axel Springer in the future.
In relation to Von Hannover (No.2), the ECHR is not saying that any publication of photographs of public figures going
about their daily lives is justified. The decision centres upon whether a contribution can be made to a debate of
general interest, rather than some radical re-defining of the rules covering publication of photographs of public figures.
However, it is a move in favour of the press, and public figures may be increasingly concerned in the wake of this
decision that the press will use an event in contemporary society as a way to justify publishing photographs.
By comparison, the result in Axel Springer is not as unexpected. It is reasonable to presume that any expectation of
privacy is likely to be outweighed by the general interest in reporting criminal proceedings.
Essentially both cases are important victories for the media. However, given that the Leveson Inquiry and Phone
Hacking claims continue to dominate headlines, the extent to which the ECHR’s decisions will assist the UK media
when publishing articles about public individuals’ private lives remains to be seen.
If you require further information on anything covered in this briefing please contact Julian Pike
(julian.pike@farrer.co.uk 020 3375 7217) or Harriet Brown (harriet.brown@farrer.co.uk 020 3375 7118) or your
usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific
circumstances.
© Farrer & Co LLP, February 2012
Telephone: +44 (0)20 3375 7000 Email: enquiries@farrer.co.uk Web: www.farrer.co.uk