The judgments made it clear that the right to privacy has to be carefully balanced against contribution which a publication makes to a debate of general interest. In both cases, taking account of the nature of the individuals involved and the publications the right to freedom of expression prevailed over the right to privacy.
The judgments demonstrate the need for a careful balancing exercise in privacy cases. Both cases involved “popular journalism” and show that, even in this area, privacy is not a “trump card”. The judgments will be welcomed by the media as showing that the Court of Human Rights remains sensitive to the need to protect its freedom of expression.
The case of Axel Springer v Germany (App No 39954/08) concerned the publication of articles about the arrest and conviction of a well known television actor for the possession of drugs. The domestic courts held that the actor’s right to protection his personality rights prevailed over the public’s interest in being informed, even if the truth of the facts had not been disputed. It granted an injunciton against the newspaper which claimed that there was a violation of its right to freedom of expression under Article 10 of the European Convention on Human Rights.
The Grand Chamber (by a majority of 12:5) held that there was a violation. It looked at six factors in considering whether the sanctions imposed by the domestic court had been justified under Article 10(2): the contribution of the article to a debate of general interest, how well known the actor was, his prior conduct in relation to the media, the method of obtaining the information and its veracity, the content form and consequences of the articles and the severity of the sanctions. There was a degree of public interest, the actor was well known and had actively sought the limelight and the information had been published only after disclosure by the prosecuting authorities. The publication of the article had not had serious consequences for the actor. The sanctions, although not severe, were capable of having a chilling effect.
In the circumstances, the Grand Chamber held that the grounds advanced by the Goverment were not sufficient to establish that the interference with the newspapers’ rights was “necessary in a democratic society”. There was, therefore, a violation of Article 10.
The second case, Von Hannover v Germany (No.2) (App Nos. 40660/08 ; 60641/08) concerned the publication of Prince Caroline of Monaco and her husband in “Frau im Spiegel.” It showed the couple taking a walk during their skiing holiday in St. Moritz and was accompanied by an article reporting, among other issues, on the poor health of Prince Rainier of Monaco. Her claim against the magazine was dismissed and she claimed this was a breach of the positive obligation under Article 8 to protect her privacy.
The Grand Chamber noted the the photographs had not been taken in “unfavourable circumstances” and were not of themselves offensive. It held that the national courts had carefully balanced the rights of the published companies to freedom of expression against the right of the applicants to respect for their private life, considering whether the accompanying articles contributed to a debate of general interest. In all the circumstances, having regard to the national margin of appreciation, it held unanimously that there had been no violation of Article 8.
These are both important cases for their analyses of the law concerning privacy and freedom of expression and we will publish full case comments in due course.