The Grand Chamber of the European Court of Human rights yesterday heard the conjoined applications in Von Hannover v Germany and Springer v Germany. At the two hour hearing a bench of 17 judges heard oral submissions from Professor Walter on behalf of the German government, Dr Börger on behalf of Axel Springer and Professor Prinz (who appeared in Von Hannover (No.1)) on behalf of the Von Hannover applicants. Judgment was reserved and is unlikely to be given for at least 3 months. There is a webcast of the hearing (best viewed using Internet Explorer).
The Springer case 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.
Princess Caroline’s case again concerned photographs published in the German press. 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. In the course of his submissions her counsel, Professor Prinz, stated that these cases had been selected precisely because they were very similar to the first Von Hannover case.
The first submissions were by Professor Walter on behalf of Germany. He began by pointing to the “dilemma” apparently faced by Germany – dealing simultaneously with a complaint that it had given too much protection to Article 8 rights (Springer) and too little (Von Hannover). His opening comments were as follows:
“Personality rights in German seem to be over protected and under protected at the same time. Today’s cases illustrate the narrow mountain range on which the German courts currently seem to move. Looking to their right, they stare down into the deepness of the craggy Article 8 cliffs, for which they have mixed memories from previous expeditions into the area. And looking to their left, they see the slippery Article 10 slopes. Due to their careful movements in the cases under consideration today, they neither stumble to the right nor did they slide down to the left. This is the first central point of the Government’s argument. However, and this is the second point, in order to meet the requirements of mountain security, the impression of a narrow ridge needs to be corrected. We are not asking for the construction of a German Autobahn where the Federal Constitutional Court and the Federal Court of Justice comfortably seated in a Mercedez Benz can proceed without any restrictions by speed limits and using three or even four lane to proceed as they please. However, in the interests of all national courts in all member states, a solid pathway is required on which a well-equipped and reasonably trained mountaineer can march determinedly and confidently. And this is also in the interests of this court which, as the responsible mountain security service, so to speak, would otherwise have to rush to rescue in too many incidents. We believe that the construction works for this pathway are already in full operation. The German courts have contributed their part and we are confident that it is the aim of this eminent court in today’s proceedings to finish the construction works with its judgments”.
He argued that in the Von Hannover case the articles concerned a matter of general interest, the illness of reigning monarch of Monaco and the way in which his family dealt with it. He contrast this with the reports in Von Hannover (No.1).
His submissions centred on the argument that the German courts had made a proper assessment in each case and the decisions were within the margin of appreciation. He mentioned a “Comparative study” of the way in which national courts dealt with Article 8 and Article 10 issues – annexed to his submissions. This was said to show a convergence between the approaches of national authorities.
He summarised the main points of the Government’s argument under five heads:
1. When confronted with cases involving the balancing of interests between the press and a more or less prominent figure the courts of the member states delimit areas of freedom of private freedom, only a broad margin of appreciation can ensure that the member states can develop and appropriate case law at the national level.
2. A broad margin of appreciation has already been explicitly acknowledged with regard to positive obligations arising from Article 8 this needs to be extended to cases presented under Article 10 which have to be balanced against a positive obligation resulting from Article 8. Otherwise the density of European supervision would depend on the outcome of the national proceedings
3. There is not yet a consensus among the member states as to the relative importance of the various factors which need to be included in the balancing exercise. In the absence of such a consensus a wide margin of appreciation is required.
4. Establishing the different factors relevant in the balancing process requires assessing detailed issues of fact and law. For this task the Courts of the members states are in a better position than the Court of Human Rights.
5. In all cases the German Court established the relevant factors and their solutions remain within the margin of appreciation.
The submissions of Dr Börger on behalf of Springer centred on arguments which English lawyers will find very familiar. He contended that private life was not in issue because X (who he named in his submissions) had talked about previous drug convictions in newspaper interviews and that, as a result, these matters were no longer private. He also argued that committing a crime is never a matter of private life and that the German Courts ignored the public’s right to know how justice was being administered. He accepted that a person who is unknown to the public may have a legitimate interest in not having his name in the press but argued that the position was different in relation to a public figure. He contended that X was clearly a public figure – having appeared in a large numbers of TV films and having talked about his drug related crimes in other media. As a result, his private life was not in issue. It was also submitted that reputation was not an Article 8 right – but was properly to be taken into account only under Article 10(2).
Professor Prinz on behalf of the applicants in Von Hannover, complained that the German courts were ignoring the 2004 Von Hannover case and that his client lacked any effective domestic remedy. He said:
“It is obvious that the photographs and articles presented here today do not make any contribution to a debate in a democratic society. Our case involves only private persons. Our case does not deal with the question of importance in a democracy. There is no informational news value in paparazzi pictures showing the applicants on a walk during her holiday. The disclosure of such personal details is most certainly not part of the function of the press as a public watchdog. The simple fact that the applicants’ skiing holiday by chance took place during an illness of the first applicant’s father who had been ill for many years cannot justify the publication of these paparazzi pictures. Of course one may report on the illness of a ruling Prince. However, this is not the object of our case. The object of all applications of paparazzi photos showing the applicants on a walk during their holiday. [??]. As the court has always stated, the publication of pictures from the private sphere seriously interferes with the right to respect for private life, particularly when compared to simple text reporting. Accordingly, there is no single valid reason which would justify the publication of these particularly intrusive paparazzi pictures. The applicants’ skiing holidays have absolutely noting to do with the illness of Prince Rainier. Moreover, it is neither unusual nor despicable that the applicants during the long term illness of a family member spend a few days on a skiing holiday just like any other family. This information is totally irrelevant. In fact particularly if a family member has been ill for years, the family needs special protection during the few days when they relax. At such a time in particular, effective protection is required. The consequences of the challenged decisions are devastating. By allowing even the most trivial information to justify paparazzi pictures, the German courts reduced the protection of privacy to a degree which is even lower than before the court’s decision. According to the reasoning of the German courts, the applicants would practically be completely deprived of their right to privacy during the whole time of the illness of the first applicant’s father as long as the media simply mention the illness with a few passing words while publishing paparazzi pictures…“
He went on to say:
“According to this court’s constant case law, Article 8 guarantees not only theoretical and illusionary rights but rights that are practical and effective. This requires legal certainty. As the court has stated, the applicants and other victim of the so-called tabloid press need to know exactly when and where they are in a protected sphere. The German decisions in front of you today demonstrate that the current legal situation leads to completely unpredictable arbitrary results and subsequently to great legal uncertainty and confusion. One must always expect that the highest German courts after years of proceedings will see sufficient informational value in a few casual words of the accompanying text to justify the publication even though all prior courts have been unable to recognise any contribution to a debate of general interest.”
Questions from the Court
In accordance with its usual practice, the Court only asked a limited number of questions of the advocates. Two of these – from Judge Bratza and the President related to the provision of documents mentioned in submissions. There was, however one interesting question from the Liechtenstein Judge, Mark Villiger as follows:
“I have a question to the representative in the Axel Springer case. Mr Börger. In your pleadings you stated: ‘There is no private life when committing a crime.’ Now, I am trying to understand your statement , trying to understand your argument and its implications for the situation of the present case amd perhaps you can help me. You see, Bildzeiting published the article on Mr X, as I shall call him, on 29 September 2004. That is six days after X was arrested on 23 September. So my question is: How did Bildzeitung know on 29 September that the applicant was committing a crime. Thank you.”
The response from Dr Börger on behalf of Springer was as follows:
“Criminal laws, the very idea of criminal laws is that certain behaviour is unacceptable. Stealing is unacceptable, fraud is unacceptable, drug dealing is unacceptable. And the idea behind criminal laws is that there is a public or a common good that needs to be protected and if someone violates those provisions, he cannot claim that this is a private matter because he violated the common good, the common good being or the general aim being that there shall be no drug possession, drug dealing, no fraud, no stealing and if you violate this provision, you cannot claim that this is purely a private matter. That is the idea behind my statement. “
Note: We would like to thank Mr Benjamin Pell for providing the transcripts of the quoted passages.