“Media Lawyers Intervene in Strasbourg Privacy Cases” – PA Media Lawyer

This post originally appeared on Media Lawyer, the Press Association’s indispensable subscription service covering all aspects of media law.  It reproduced with permission and thanks.

A group representing in-house lawyers with national news organisations and broadcasters has been given permission to intervene in two privacy cases to be dealt with by the Grand Chamber of the European Court of Human Rights.  The cases – which include a fresh one brought by Princess Caroline of Monaco – moved to the Grand Chamber after the Fifth Chamber relinquished jurisdiction on them.

The Media Lawyers Association has been given permission to intervene with a written submission for the two cases, which could lead to the Grand Chamber reviewing the confused situation which arose from the Fifth Chamber’s decision in the Princess Caroline case in June 2004.  The court has specified that the submissions

“should not include any comments on the facts or merits of the case, but address only the Media Lawyers Association’s particular interests in the matter”.

The Princess Caroline case in 2004 – Von Hannover v Germany – appeared to give celebrities and others the right to claim that they should be protected from being photographed in public places when they were on private business.  It also suggested that the range of freedom of expression had to be interpreted more restrictively when dealing with people who were not political figures or exercising some public function.

Media organisations argue that the way in which that case is being interpreted is becoming increasingly restrictive of freedom of expression.

Princess Caroline’s new application to the court appears to be something of a repeat of her previous case, as it concerns the publication, without her consent, of photographs of her and her husband, Prince Ernst August von Hannover, and stories about her private life.

The second case has been taken to Strasbourg by Germany’s Axel Springer publishing group, which publishes Bild newspaper.  This concerns a ban on publication in Germany of information about the arrested and conviction for cocaine possession of an actor who plays a police chief in a television series.  The coverage appeared in 2004, but in 2005 the German courts granted the actor’s application for order banning re-publication of any information about the entire issue, and banned the use of photographs.

At first instance, the Hamburg regional court held that in the actor’s case, his right to privacy outweighed the public interest in publication, even if the facts which had appeared about his case were true and unchallenged.  There was a public interest in the actor in his acting role, because of his frequent appearances on television in the role of a Police Commissioner, but not in the character of the actor himself.  The Court of Appeal dismissed Springer’s appeal, holding that the offences of which the actor was convicted were “everyday crime” and were of no interest if the perpetrator was a stranger.

A spokesman for the European Court of Human Rights said the decisions by the Chamber Court to relinquish jurisdiction in these two cases should be viewed in the light of Article 30 of the European Convention, which covers the issue.  It states:

“Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.“

But many observers fear that sending the cases to the Grand Chamber could lead to the imposition of even more restrictions on freedom of speech in the name of privacy.

There was considerable concern about the original decision in the Princess Caroline case because of the stress the court placed on need for media coverage to involve a contribution to a debate in a democratic society, as its interpretation seemed to rule out almost all coverage except that which might be politically important.

This contrasts strongly with the view expressed by Lord Woolf in the Garry Flitcroft case in 2002, when he said:

“The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”

Andrew Caldecott QC criticised the Princess Caroline decision at a conference in 2007, saying that the Strasbourg court had ignored the careful balancing exercise the German Constitutional Court had conducted between Article 8 and Article 10 which was “most striking for its recognition of the degree of public interest in celebrity lifestyles” and of the fact that private decisions by celebrities could illustrate moral points or bring to life what would otherwise be a colourless debate.  Entertainment, the court had said, had a role in the formation of opinion – it did not merely satisfy a desire for amusement or diversion, but also fulfilled an important social function because it could convey images of reality, propose subjects for debate, and spark a process of discussion and assimilation in relation to a philosophy of life, values, behaviour and morals.  But the European Court had rejected these ideas, and had simply drawn a sharp distinction between reporting facts “capable of contributing to a debate in a democratic society” and reporting details of the private life of an individual who exercised no official function.

Recent opinions expressed by various members of the European Court also raise fears that it is tilting the balance far more towards privacy and away from freedom of expression.   In the recent case of Jokitaipale and Others v Finland, Polish judge Lech Garlicki said in a dissenting that publicity about a woman who was having an affair with a politician and had become involved in a fight when the pair went to his home while his wife was there amounted to a breach of her right to privacy.  While the man was a politician and public figure, his mistress was a private person who only entered the realm of public matters because of her relationship with him, he said.

“But all this did not transform Ms B into a separate (autonomous) public figure. The application of the ‘public figure’ doctrine to her private life was therefore limited to the facts and events concerning her relationship with A. The very fact that she had an affair with A could not result in total forfeiture of her privacy.

“B’s arrest and conviction, while deserving press coverage, were at the same time not sufficient to deprive her of her status as a private person.”

The European Court’s Maltese judge, Giovanni Bonello, also seems to have suggested that freedom of expression should rate lower than other rights.  The Times of Malta reported in October 2008 that the judge, when accepting an award as Johnny Walker Man of the Year – it was presented by the whisky firm – had spoken of man’s fundamental freedoms, and said that it was not just a matter of freedom of expression.  There were other freedoms that were just as crucial, like freedom from poverty; freedom from retribution and freedom from hunger, he had said, adding, according to the newspaper’s website: “Imagine speaking about freedom of expression to a person who has nothing to eat.”

The Grand Chamber hearing in Von Hannover (No.2) is considered in an earlier Inforrm post