On Thursday 23 May 2013, the British Institute of International and Comparative Law hosted an event entitled “The Right to Privacy and the Freedom of the Press: From the European to Domestic Perspectives … and Back“. Judge Boštjan Zupančič, the Slovenian judge at the European Court of Human Rights, gave a presentation, Sir Geoffrey Nice responded and Sir Stephen Sedley chaired the event. The recently retired English judge at the Court of Human Rights, Sir Nicholas Bratza, participated in the discussion.
Judge Zupančič began his wide ranging talk by pointing out the difference between the English tradition of rights aimed at protecting the citizen against the state and the “continental” tradition of protecting “personality rights” via private law. He traced personality rights back to their sources in Roman law and pointed out that Warren and Brandeis’ classic 1890 paper on the “Right to Privacy” drew on German conceptions of personality rights.
He formulated the issue as between privacy and expression as being that of balancing the “right to be let alone” and the “right of the public to know”. Referring to the decision of the Court of Human Rights in Tammer v Estonia (2001) 37 EHRR 43) he suggested that it was useful to bear in mind that “The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments” [62].
In relation to “personality” and privacy rights in different jurisdictions, he drew attention to the absence of a a culture of privacy rights in the United Kingdom, referring to Lady Justice Arden’s March 2013 lecture “Media Intrusion and Human Rights – Striking the Balance” [pdf]. Such rights were recognised, he pointed out, in France, Spain and Germany. They were also widely recognised in Eastern Europe (under the influence of German law).
Judge Zupančič considered the notion of “reasonable expectation of privacy” – which he described as a “very good criterion” for dealing with privacy issues. He drew attention to its origins in the US Supreme Court Fourth Amendment case, United States v Katz 389 U.S. 347 (1967) – where it was held that the Fourth Amendment was violated by eavesdropping conversations which took place in a telephone booth. An enclosed telephone booth was a place, like a home, where there was a “constitutionally protected reasonable expectation of privacy”. The criterion was taken up in Halford v United Kingdom ((1997) 24 EHRR 523). and was subsequently used by the Court in Von Hannover v Germany (No.1) (2005) 40 EHRR 1 [52]). This is an interesting reminder of the roots of Article 8 in the Fourth Amendment protection against unreasonable search and seizure.
At the conclusion of his talk, Judge Zupančič drew attention to the fact – often neglected by commentators – that the Court of Human Rights approaches its work in a very English way. Whereas the continental system is “formalistic”, with the rules set out from the top in Codes – the English judicial system involves innovation on a case by case basis. The Court of Human Rights has followed the English example, with judicial decision making being a source of law.
In the discussion which followed, Sir Nicholas Bratza expressed regret at the decision in Von Hannover (No.1), where the Court of Human Rights had not accepted the carefully constructed privacy jurisprudence of the German Constitutional Court. In relation to Von Hannover (No.2) (see the Inforrm case comment here) he expressed satisfaction that the Grand Chamber (of which he was the President) was able to accept the German Constitutional Court’s analysis of the privacy issues, based on its consideration of Von Hannover (No.1). He suggested that it was important for the Court to set out “Criteria Relevant to the Balancing Exercise” (Von Hannover (No.2) [108] to [113]) which could then be applied by the domestic courts in the member states.
He was asked about the refusal of the Grand Chamber to accept the analysis of the German Courts in the Axel Springer case (see the Inforrm case comment here). His response was that what was important was the fact that, in contrast to the domestic courts, the Grand Chamber had concluded that the claimant in the domestic proceedings, (a well known actor) was a “public figure”.
Judge Zupančič’s talk was an important and useful reminder of the importance of understanding privacy law in the wider context of the different legal traditions of the member states of the Council of Europe.
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