Case Law, Strasbourg: Von Hannover v Germany (No.2) – Unclear clarification and unappreciated margins – Kirsten Sjøvoll

The decision in Von Hannover v Germany (No. 2) is the second of two given on 7 February 2012 by the Grand Chamber concerning the balancing of privacy and freedom of expression.  There was a case comment on Axel Springer here.)  In a unanimous decision, the Grand Chamber found that Germany had not failed in its obligation to respect the applicants’ Article 8 rights when it refused to grant an injunction against the publication of a photograph taken of Princess Caroline and her husband while on holiday at a ski resort in Switzerland.

Background

In the first Von Hannover v Germany case ((2005) 40 EHRR 1)(“the first Von Hannover judgment”), the Court held that Princess Caroline’s Article 8 rights had been infringed by the publication of photographs showing her with her children. On the basis of this, she, together with her husband, brought several civil actions in Germany for an injunction to prevent further publication of three photographs taken while she was on holiday with her family. The German Federal Court, relying heavily on the first Von Hannover decision granted an injunction in respect of two of the three photographs on the basis that they were wholly in the sphere of private life and satisfied nothing but the curiosity of the general public.

In respect of the first photo, showing Princess Caroline and her husband taking a walk during their skiing holiday in St. Moritz, accompanied by an article reporting, among other issues, on the poor health of Prince Rainier of Monaco, the court held that it had to be considered in the context of the article and that the subject matter was an ‘event in contemporary society’ and of general interest. The Federal Constitutional Court upheld this ruling and rejected the contention that insufficient account had been taken of Strasbourg case law, finding that “the Court had not categorically excluded the possibility that a report contributing to a debate about questions of interest to the public could be illustrated by photos showing a scene from the daily life of a political or public figure”.

Princess Caroline and her husband appealed to Strasbourg, claiming a violation of their Article 8 rights. They argued, inter alia, that the failure of Germany to implement the first Von Hannover ruling placed them in “an intolerable situation of legal insecurity and a considerable risk of litigation and costs resulting from that.” [84] They further argued that none of the photos, regardless of the accompanying articles contributed to a debate of public interest in a democratic society but were there purely to satisfy the curiosity of a particular readership.[85]

Various media groups submitted third party observations. As in Axel Springer, the Media Lawyers Association argued that Article 8 does not create an image right. It further argued that for Article 8 to be engaged at all, a minimum level of seriousness should be required. [92] The Media Legal Defence Initiative jointly submitted with the International Press Institute and the World Association of Newspapers and News Publishers that there should be a broad margin of appreciation in light of the fact that the weight given to any particular factor in balancing Article 8 and Article 10 rights varies amongst member states. [93]

Judgment

In Von Hannover (No.2) the Court unanimously held that there had not been a violation of Article 8. In doing so, the Court reiterated the broad scope of Article 8. In relation to the protection of one’s personal image, the Court confirmed that “the right to protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication.” [96] In relation to Article 10, the Court reiterated the importance of “pluralism, tolerance and broadmindedness” in a democratic society and the corresponding necessity of information that is favourably received and that which “offends, shocks, or disturbs”. [101] Photographs, however, particularly those taken for the purposes of “sensationalist” press may amount to a serious intrusion into an individual’s private life and the circumstance in which they are obtained may even invoke a feeling of harassment or persecution on the part of the individual. [103]

The Court nonetheless emphasised that Article 8 and Article 10 are of equal value and that the margin of appreciation should be the same in both cases. [106] In its supervisory role, the Court saw fit to set out relevant criteria which domestic states should consider when considering how to strike the balance between the two rights:

1. Whether the information contributes to a debate of general interest

What amounts to “general interest” will depend on the circumstances of the case. However, the Court gave some guidance based on its case law as to what it generally considers is or is not a subject of general interest (rumoured marital difficulties of a politician or financial troubles of a famous singer being amongst those not found to be matters of general interest). [109]

2. How well known the person concerned is and the subject matter of the report

The Court noted that private individuals may have a particular protection under Article 8 because there is a “fundamental distinction” between “reporting facts capable of contributing to debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions.” [110]

3. The prior conduct of the individual concerned.

In relation to this criteria, the fact that an individual has previously cooperated with the press may not serve as a trump card removing all protection against publication of the photo in question. [111]

4. Content, form, and consequences of the publication.

This may also include the scope of dissemination, the size of the publication, readership etc. [112]

5. The circumstances in which the photos were taken.

Factors such as the consent of the subject, their knowledge that the photo was being taken, whether it was taken illicitly or through subterfuge will be relevant here. In addition, regard should be had to the “nature or seriousness of the intrusion and the consequences of publication” for the individual. An unknown, private individual may suffer a greater interference through publication of their image than a well known person, for example. [113]

Applying those factors to the present case, the Court first found that Germany had changed its approach to privacy in light of the first Von Hannover judgment, particularly in the holdings by both the Federal and Constitutional Court that a public interest in being entertained generally was less important than an individual’s privacy rights. [114]

In relation to the “status” of the applicants, the Court found that whether and to what extent Princess Caroline assumed official functions had no bearing on the fact that they were both very well known and so could not be considered “private individuals”. [120] Furthermore, no evidence had been adduced below as to the circumstances in which the photographs were taken and the photos taken in a public street “were not in themselves offensive to the point of justifying their prohibition.” [123] Without making any judgment on whether the photos were of general public interest, the Court concluded that the German courts had “attached fundamental importance” to this question, taken into account the relevant Strasbourg case-law and consequently had not breached its positive obligations under Article 8. [124-126]

Comment

This judgment provides some useful guidance concerning balancing Articles 8 and 10 where photographs are published but recognizes that the way in which those criteria are applied will vary between member states. Although recognising the importance of protecting one’s image, the Court was very reluctant to impose a one-size-fits-all standard for Europe. It goes some way towards indicating what will and will not be a matter of general interest and indicates that matters related to the personal affairs of public individuals are unlikely to fall into that category.  But this approach appears to be at odds with the Court’s conclusion: on any view the image complained of – even taken with the article about the applicant’s father’s health – can hardly be said to concern official activities.

In relation to the criterion of “contribution” to a debate of general interest there is considerable room for ambiguity about the concept of “contribution”. How much of a contribution would an image have to make to general public interest? What if, for example, a newspaper publishes an article relating to the fact of public misconduct by a politician but accompanies it with a photograph showing the individual on holiday with his family? This is a question which the national courts must grapple with and, in light of Von Hannover¸ the wide margin it is afforded in doing so means that Strasbourg is unlikely to interfere with its conclusion.

The circumstances in which a photograph is taken may prove crucial in future cases. The Court did not form a view on this issue on the facts because it had not been raised by the applicants. It is express recognition that photographs, particularly of celebrities, are taken in a climate of harassment and even persecution is nonetheless significant and raises some further questions. For example, what if, as here, a photograph is taken innocuously enough in a public street but is taken as part of a more general campaign of harassment by the photographer? To what extent is the court entitled to take those other occasions into consideration?

The line between “private” and “public” individual is also not clearly drawn in this case. While in the first Von Hannover, the Court placed a great deal of emphasis on the exercise of official functions by the applicant – or lack thereof – this time, the focus was on how well known generally Princess Caroline was. This is important, as a “private” individual will be more easily able to establish a reasonable expectation of privacy than an individual in the public eye.

Von Hannover (No.2) attempts to narrow the focus when attempting to balance two equal but competing rights. Unlike Axel Springer, this judgment was unanimous and appears to place a higher value on the protection of one’s image than to the protection of one’s reputation, the latter of which must attain a certain level of seriousness in order to engage Article 8. The judgment will doubtless be a welcome contribution to the English privacy law debate and it will be interesting to see how the English courts apply these principles in future cases. Although the outcome for the media in Von Hannover was favourable, this judgment is really made on the basis of the margin of appreciation and it is questionable, in light of the guidance set out, whether this is really the Kodak Moment for press freedom that some in the media would like to believe.

Kirsten Sjøvoll is a trainee barrister at Matrix Chambers