On 16 April 2010 the European Court of Human Rights announced that the case of Caroline von Hannover v Germany (no. 40660/08) had been relinquished to the Grand Chamber of the Court – a panel of 17 judges.  It will be heard along with the case of Springer v Germany (No. 39954/08).  Princess Caroline von Hannover (the daughter of Prince Rainier III of  Monaco), was of the course the successful applicant in the Court’s most famous media privacy case:  Von Hannover v Germany ((2004) 40 EHRR 1).  This new case gives the Grand Chamber of the Court of Human Rights its first opportunity to consider the developing case law on privacy and the media.

The Von Hannover Case

Princess Caroline’s new case again concerns photographs published in the German press.  There is a “Statement of Facts and Issues“, available only in French.   She complained about the publication of three photographs in the magazine Frau im Spiegel – showing Princess Caroline and her husband on skiing holidays –  one of which was also published in Frau Aktuell. She sought injunctions restraining further publication of the photographs.

The German courts rejected Princess Caroline’s claims on the basis that her Article 8 rights had to give way to the fundamental rights of the press.   The judgment of the Bundesverfassungsgericht (Federal Constitutional Court) of 26 February 2008 (1 BvR 1626/07) is available in English.  This judgment is well worth reading.  In a statement of in principle which will be of considerable interest to defendant lawyers, the Court says that

“At the core of the fundamental-rights guarantee of freedom of the press lies the right to freely determine the manner and focus, as well as contents and form of the organ of publication. This includes the decision as to whether and how a media product is to be illustrated Pictorial statements are covered by the constitutional-law protection of the report which they serve to illustrate .. The protection of freedom of the press thereby also includes the photographic representations of persons … Protection does not depend on the singularity or quality of the product of the press or the text … The press has the right to decide according to its own journalistic criteria, what it does or does not consider worthy of public interest … Irrespective of what standards are applied, the protection of freedom of the press may not be made dependent on a valuation of the printed product … Even entertaining contributions concerning prominent persons, for instance, are covered by the protection of freedom of the press … It is only where the courts are called upon to weigh competing rights of personality that the informational value and the manner in which the article shows a relevance to questions which truly concern the public becomes important” (case references omitted)[42]

The Court goes on to say

Insofar as the media concern themselves with prominent persons in their reports, the mere revelation of discrepancies between public self-portrayal and private conduct of life is not of general public interest, according to the case-law of the Federal Constitutional Court. Prominent persons can also offer orientation in shaping one’s own lifestyle, as well as fulfilling the function of role model or showing what one does not wish to imitate … The circle of legitimate general public interest would be prescribed too narrowly if one were to restrict this to behaviour that is scandalous, or morally or legally questionable. Even the normality of everyday life, as well as conduct of celebrities that is in no way objectionable, may be brought to the attention of the public if this serves to form public opinion on questions of general interest …

The entertainment value of the contents or its presentation is frequently an important requirement if public attention is to be won and thereby a contribution possibly made to the formation of public opinion. To deny an article its role as contributor to the formation of public opinion merely because of its entertaining presentation, might also violate the content of the fundamental-rights guarantee of Article 10 of the Convention.

Even “mere entertainment”, cannot per se be denied all relevance in the formation of opinions. Entertainment is an essential part of media activity which enjoys the protection of the right of freedom of the press in its subjective and objective legal aspects … The journalistic and economic success of the press which is in competition with other available media and sources of entertainment can be dependent upon having an entertaining content and corresponding photographic representations. In recent times the significance of visual portrayals for press reporting has in fact increased. (references omitted)[60-62]

It was held that the task of the courts is to examine informational value of reports and their illustrations in individual cases on the basis of their relevance to the formation of public opinion and to “weigh freedom of the press against the detriment to the protection of personality rights associated with obtaining and disseminating the photographs” [71].  The Constitutional Court held that the lower courts had applied the right tests when dismissing the claims.  It also rejected the contention that they had misunderstood the case law of the Court of Human Rights on this issue.

Princess Caroline complained that the failure of the German courts to grant her the claimed injunctions was a breach of her Article 8 rights and that the Constitutional Court had failed to take proper account of the decision of the Court of Human Rights in her original case.

The Springer Case

The case is being heard with the application in the case of Axel Springer v Germany which concerned articles  published in “Bildzeitung”.  The Statement of Facts and Issues is, again, available only in French.  The articles concerned the arrest of a well known actor “X” (who played a commissioner of police in a television series) for the possession of a small quantity of cocaine and were illustrated by photographs.   The German courts granted injunctions prohibiting the publication of the article and the photographs.  It was held that the interference with X’s personality rights constituted by the publication prevailed over the interest of the public in being informed.  The applicant contended that the Court’s order were a violation of Article 10.

Discussion

These two cases have not yet been listed for hearing before the Grand Chamber but we believe it is likely to be heard in late 2010 or early 2011 [Update: the matter is now listed to be heard on 13 October 2010].  Their determination is likely to provide substantial clarification of the relationship between Articles 8 and 10 in the context of media publication.  It will provide the Grand Chamber with an opportunity to reconsider the original Von Hannover decision – something which the German Government declined to do at the time – reportedly after a decision by the Cabinet.  The Grand Chamber judgment is likely to have a wide ranging effect on English media law and we understand that a number of media organisations are intending to intervene.