On 7 February 2012 the Grand Chamber of the Court of Human Rights found that the Article 10 rights of the publisher of the German tabloid, “Bild” had been violated by injunctions granted by the German courts (Axel Springer v Germany, App No 39954/08).  The tabloid had been prevented from publishing articles about the arrest and conviction of a well known television actor for possession of cocaine.   By 12 votes to 5, the Grand Chamber found there was a violation and awarded the publisher “just satisfaction covering the damages and costs it had had to pay in the domestic proceedings and in Strasbourg. 

Background

In September 2004, “Bild” published a front-page article about X, a well-known television actor, being arrested for possession of cocaine. The article was illustrated by three pictures of X.  There was a detailed article on another page. It mentioned that X, who had played the role of a police superintendent in a popular TV series since 1998, had previously been given a suspended prison sentence for possession of drugs in July 2000. The newspaper published a second article in July 2005, which reported on X being convicted and fined for illegal possession of drugs after he had made a full confession.

Immediately after the first article appeared, X brought injunction proceedings against the applicant company with the Hamburg Regional Court, which granted his request and prohibited the publication of the article and the photos. The applicant company did not challenge the judgment concerning the photos, and the prohibition to publish the article.

In November 2005, Hamburg Regional Court prohibited any further publication of almost the entire first article, on pain of penalty for non-compliance, and ordered the applicant company to pay EUR 5,000 as a penalty and to reimburse the procedural expenses. The court held in particular that the right to protection of X’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. The case had not concerned a serious offence and there was no particular public interest in knowing about X’s offence.  The judgment was upheld by the Hamburg Court of Appeal and, in December 2006, by the Federal Court of Justice.

In another set of proceedings concerning the second article, about X’s conviction, the Hamburg Regional Court granted his application in August 2005 on essentially the same grounds as those set out in its judgment on the first article. The judgment was upheld by the Hamburg Court of Appeal and, in June 2007, by the Federal Court of Justice. In March 2008, the Federal Constitutional Court declined to consider constitutional appeals lodged by the applicant company against the decisions.

The applicant complained to the Strasbourg Court of a violation of its Article 10 rights.  This application was referred to the Grand Chamber and was heard on 13 October 2010 along with Von Hannover v Germany (No.2).

Judgment

In its judgment, the Grand Chamber reiterated the well known general principles governing freedom of expression and the essential role of the media [78] and [79].  It pointed out that the duty of the press extended to reporting and commenting on court proceedings – information which the public has a right to receive [80].

The Court reiterated that the “right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life”.   However, Article 8 only came into play if the attack attained a “certain level of seriousness” [83].  It cannot be relied upon in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions, for example the commission of an offence [83]

When examining the justification for an interference with freedom of expression in the interests of protection of reputation, the Court had to consider the “fair balance” between the two rights [84]. A number of criteria relevant to the balance were laid down in the case law:

  • Contribution to a debate of general interest – this covers not only political issues or crimes but sporting issues or performing artists [90].
  • How well know the person was and the subject of the report – A distinction had to be made between private individuals and persons acting in a public context, as political or public figures [91]
  • Prior conduct of the person concerned:  The conduct of the person prior to the publication was a relevant factor – although the mere fact of having cooperated with the press cannot be an argument for depriving a person of all protection [92]
  • Method of obtaining the information and its veracity:  These were important factors – the protection of Article 10 was subject to the proviso that journalists were acting in good faith, on an accurate factual basis and providing reliable and precise information in accordance with the ethics of journalism [93].
  • Content form and consequences of the publication:  The way in which the photo or report was obtained and the way in which the person was represented were factors to take into account [94].
  • Severity of the sanction imposed [95]

Looking at these factors, the article concerned “public judicial facts” which presented a degree of “general interest” [96].  The actor, X, was the main actor in a popular detective series and played a police superintendent.  As a result,

“he was sufficiently well known to qualify as a public figure.  That consideration … reinforces the public’s interest in being informed of X’s arrest and of the criminal proceedings against him” [99]

The offence was not petty but only a small quantity of drugs was involved.  He was arrested in a public place. [100]

In relation to X’s prior conduct, he had “actively sought the limelight” so his “legitimate expectation” that his private life would be effectively protected was reduced [101].   Although there was some doubt as to whether the information had come from the prosecution authorities in the first instance, confirmation of the information had come from the police and the prosecutor [104].   In the circumstances, it had not been shown that the applicant was acting in bad faith when publishing the articles.

In relation to the “Content, form and consequences” of the articles the court pointed out that

“the articles did not … reveal details of X’s private life but mainly concerned the circumstances of and events following his arrest. … They contained no disparaging expression or unsubstantiated allegation” [108]

The fact the articles contained expressions “designed to attract the public attention” did not, of itself, raise an issue under the Court’s case law [108].

In all the circumstances, the considerations advanced by the Government were not sufficient to establish that the interference was necessary in a democratic society and there was a violation of Article 10 [110].

In an opinion given by Judge Lopez Guerra five of the judges of the Grand Chamber (including the judge from Germany) dissented on grounds of “margin appreciation”.  They said that the German domestic courts had performed the relevant balancing exercise – carefully weighing the relevant facts “with the advantage of their knowledge and their continuous contact with the social and cultural reality of their country“.  As such this exercise could not be described as arbitrary or manifestly unreasonable.

Comment

The result is hardly surprising from the point of view of English law.  The articles complained of reported a public arrest and (at the Munich Beer Festival) a criminal conviction for the possession of cocaine.   Insofar as any “expectation of privacy” arose this was plainly outweighed by the general interest in reporting criminal proceedings.  The fact that X was a well known actor who had courted publicity – and played a police superintendent on television – were further factors in the “balance” favouring publication but were hardly needed in the circumstances of this case.

Nevertheless, the case provides a useful re-statement by the Grand Chamber of the principles applied when balancing privacy and freedom of expression.  The English courts will, in future, have to consider the six matters set out at [90] to [95] of the judgment when looking at the “second stage” in a misuse of private information claim.  These factors provide a “structure” for the “intense focus” on the facts which is required at this stage in a privacy claim.

It is also noteworthy that the Grand Chamber did not directly deal with the submission – in the Intervention by the UK Media Lawyers Association (see our previous post and the submission itself) – that Article 8 does not create an “image right”.  It supported the MLA view that in order for the Article 8 “right to reputation” to come into play, the attack on reputation “must attain a certain level of seriousness” and cause prejudice to the personal enjoyment of the right respect for private life [83].

The Grand Chamber also made the point that Article 8 could not be relied on if there was a “loss of reputation” as a foreseeable consequence of someone’s own actions [83].  This is an interesting qualification which would mean that Article 8 was not engaged at all in a case were the allegations made were true.  It remains to be seen how this point is developed in future Convention case law.

Both this decision and Von Hannover (No.2) are important victories for the media. However, given the facts of each case, the decisions by the Grand Chamber were not unexpected. With the Leveson Inquiry and the Phone Hacking claims still dominating the headlines, the extent to which they will provide any encouragement or support for the English media in relation to the publication of stories about the private lives of celebrities remains to be seen.