In this three part post Hugh Tomlinson QC looks at the development of the case law relating to Article 8 of the European Court of Human Rights, the development of the right to reputation and its potential implications for domestic law. The first part considers the effect of the “positive obligation” to protect Article 8 rights on disputes between private parties.
The approach of the European Court of Human Rights (“ECtHR”) to Articles 8 and 10 of the Convention has undergone a revolution in recent years. Developments are continuing at an increasing pace and are likely to have profound effects on domestic media law. This post sets out to survey and explain the changes so far and consider likely future developments.
In the first forty odd years of the existence of the ECtHR, the case law on Articles 8 and 10 developed on familiar and straightforward lines. Both Articles were focused on state interference:
- The Article 8 case law concerned interferences by the state with private life, home and correspondence.
- The Article 10 case law concerned interferences by the state with freedom of expression.
Freedom of expression appeared to occupy a special place among Convention rights:
“Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment … it is 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 State or any sector of the population” (Handyside v United Kingdom (1976) 1 EHRR 737 at ).
When considering whether restrictions on freedom of expression constituted a violation of Article 10, the ECtHR was not faced with a choice between two conflicting Convention rights, but rather with
“a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted.” (Sunday Times v United Kingdom (1979) 2 EHRR 245 )
The Convention right to respect for private life was invoked only against state interferences with privacy. The Convention contained no “right to reputation” and, indeed, as will be discussed in the next part of this post, at the time that Article 8 was drafted it was decided not to include a right to protection from attacks on honour and reputation.
As a result, although the protection of reputation and the protection of confidential information are expressed as “legitimate aims” for interfering with freedom of expression under Article 10(2), they were not themselves expressed as Convention rights. It is unsurprising that, in the absence of any “competing” Convention rights, that freedom of expression came to be regarded as a “trump card” that always wins .
In contrast to the importance of Article 10 freedom of expression rights, Article 8 was of little or no relevance in media cases. This was because Article 8 concerned interference with private life by the state and public authorities, not by individuals or private bodies seeking to assert the right to freedom of expression .
That understanding of the operation of Articles 8 and 10 has been revolutionised by two developments:
- The clear recognition of a “positive obligation” on the State to adopt measures “designed to secure respect for private life even in the sphere of the relations of individuals between themselves”.
- The recognition of the “right to reputation” as being a right encompassed within Article 8 , with the result that interference with freedom of expression needs to be “balanced” against another Convention right of equal value.
A significant figure in these developments has been Judge Loucaides, the recently retired Cypriot Judge and Vice-President of the First Section of the ECtHR. In a lecture in London in 2007 he expressed the view that:
“the case law on the subject of freedom of expression has on occasion shown excessive sensitivity and granted over-protection in respect of interference with freedom of expression, as compared with interference with the right to reputation. Freedom of speech has been upheld as a value of primary importance which in many cases could deprive deserving plaintiffs of an appropriate remedy for the protection of their dignity” (“Freedom of Expression and the Right to Respect Private Life”, Speech to MLRC, London 17 September 2007).
How these two developments in Strasbourg jurisprudence will affect domestic law has not yet been fully worked out. The first has, so far, led to the development of the claim for “misuse of private information”; the implications of the second, which could be very significant, have not yet been worked through. These will be considered in the third post in this series.
THE POSITIVE OBLIGATION OF THE STATE UNDER ARTICLE 8
The “negative obligation” in Article 8 requires the state to justify interferences. However, in addition to these “negative” obligations it has been established since the Court’s early case law that:
‘Article 8 does not merely compel the state to abstain from interference: in addition to this, there may be positive obligations inherent in an effective respect for private and family life even in the sphere of the relations of individuals between themselves ’ (Marckx v Belgium (1979) 2 EHRR 330 para 31)
Member States may be held responsible for the actions of private bodies if they encourage, connive in, or play an active part in activities which infringe Article 8. When considering whether a positive obligation under Article 8 arises in a particular case “regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual”. In an appropriate case Article 8 will require the state to provide positive protection to applicants who have suffered directly from its inaction.
Over the past decade, in a series of cases involving the publication of photographs and other material by the media, the ECtHr has clearly recognised the state’s positive obligation to protect individuals from media intrusion into their private lives. Article 8 has been found to be engaged as a result of this positive obligation in a number of cases, including the following:
- In Schüssel v Austria (Decision of 21 February 2002), where the applicant, the Deputy Prime Minister of Austria, complained about the use of his photograph on stickers, alongside a photograph of the right-wing politician Jörg Haider, with the slogan “The social security slashers and the education snatchers share a common face”.
- In the well-known case of Von Hannover v Germany ((2005) 40 EHRR 1) the Court was concerned with a series of photographs taken of the applicant, Princess Caroline of Monaco, going about her everyday (private) affairs in public places.
- In Minelli v Switzerland (Decision of 14 June 2005) which concerned the publication in a magazine of a photograph of the applicant, who was a public figure, taken during a televised event in which he had taken part.
- In Sciacca v. Italy ((2006) 43 EHRR 20), where the press published an identity photograph taken by the police of a person who was subject to criminal investigation for revenue offences.
- In Gourguenidze v Georgia (Judgment of 17 October 2006) which concerned the publication of a photograph of the applicant emerging from a police station after being interviewed.
- In the case of Leempoel v. Belgium (Judgment of 9 November 2006), which concerned the contents of a confidential file submitted to a parliamentary inquiry into the judicial conduct of a high profile criminal investigation.
- In Hachette Filipacchi v France ((2009) 49 EHRR 23) the complaint concerned the publication of a previously published photograph of the body of the deceased Prefect of Corsica lying in the street after his assassination.
- In Eerikäinen and Others v. Finland (Judgment of 10 February 2009) which concerned the publication of a newpaper article and a photograph about criminal proceedings pending against a business woman accused of fraud on public institutions.
- In Egeland and Hanseid v Norway (Judgment of 16 April 2009) in which the press had published photographs taken of a convicted murderer taken without her consent outside the court shortly after she had been convicted of murder and sentenced to 21 years imprisonment.
- In Standard Verlags GmbH v. Austria (Judgment of 4 June 2009) the press had published an article concerning the marriage of the then Federal President and, in particular, a rumour that his wife was about to leave him. The domestic court found that the report concerned the strictly personal sphere of the claimants’ lives.
In each of those cases, the ECtHR considered the balance between the Article 10 rights of those who had published (or wished to publish) the photographs or information and the Article 8 rights of the person photographed or the subject of the information. The ECtHR has held 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.” (See Von Hannover at ; see also Gourguenidze at .
Furthermore, the ECtHR has made it clear on a number of occasions that
“the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public” (See Von Hannover at ; see also Leempoel at ).
Following this approach, the ECtHR found:
- There had been a violation of Article 8 in the Von Hannover, Sciacca, Gourguenidze, and Leempoel cases.
- In Schüssel and Minelli the applications were “manifestly ill founded”. Each application was rejected as inadmissible. They concerned politicians or public figures and the publication of information in clear “public interest” contexts.
- The domestic judgments against the publishers in Hachette Filipacchi, Egeland and Hanseid and Standard Verlags were not breaches of Article 10, because the Article 8 rights prevailed.
- The domestic judgment against the publishers in Eerikäinen was a violation of Article 10 as the publication had been based on public facts, concerned a matter of legitimate public interest and its purpose had been to contribute to a public discussion.
The balance between Articles 8 and 10 in “photograph” and other privacy cases has been considered by the Court on a number of other occasions. The case of Craxi v Italy (No.2) ((2004) 38 EHRR 47) was a complaint by the former Italian prime minister concerning the publication of transcripts of his private telephone calls, parts (but not all) of which had been read in open court in the presence of the press in the course of a criminal hearing. The ECtHR said at that
“public figures are entitled to the enjoyment of the guarantees set out in Article 8 … on the same basis as every other person. In particular, the public interest in receiving information only covers facts which are connected with the criminal charges brought against the accused. This must be borne in mind by journalists when reporting on pending criminal proceedings and the press should abstain from publishing information which are likely to prejudice, whether intentionally or not, the right to respect for the private life and correspondence of the accused persons” ().
It was held that the publication of this material – which did not relate to the criminal charges – was a violation of Article 8 for which the state was responsible.
These cases all concerned alleged “invasions” of privacy. In the next part of this post I will consider the development by the ECtHR of an Article 8 right to reputation and the way in which the Court has “balanced” this right against the Article 10 rights of the media.