The UK is wet and chilly again, summer is over. Even London’s barristers’ chambers are showing signs of being populated in readiness for the start of Michaelmas term. Before confronting the long slog until Christmas, some reflections upon summer holidays.
Yesterday’s judgment of the European Court of Human Rights in the case of von Hannover v Germany (No 3) (application no. 8772/10) ( ECHR 835) addresses Princess Caroline’s attempt to maintain that photographs published in the magazine “7 Tage” were a violation of her privacy as established by Article 8 of the European Convention on Human Rights.
The photographs showed the Princess and her husband on holiday in an unidentifiable location together with photographs of her holiday home (located on an Island off the Kenyan coast). The accompanying article addressed the topic of celebrities’ renting out their holiday homes. The photographs were published in March 2002 and in November of the same year Princess Caroline applied successfully for an injunction in the Hamburg Regional Court. The case saw success and failure at the various appellate stages of the German court system and, having succeeded in the Federal Court of Justice once, upon returning to that Court from the Federal Constitutional Court, the application was finally dismissed.
Yesterday the European Court of Human Rights upheld this judgment. The Court repeated the criteria for balancing privacy and freedom of expression it set out in Von Hannover (No 2) which can be summarised as follows:
- The subject of the report and its contribution to a debate of general interest
- The content/form of publication
- The circumstances in which photographs were taken
- How well known the person is and his/her prior conduct
- The consequences of publication.
The European Court of Human Rights decided that the article did contribute to a debate of general interest and that it did not contain any information concerning the applicant’s private life. The article was not simply a contrived pretext for publishing the photographs and the photographs made a contribution to the debate of general interest. The Court acknowledged that the Princess was a public figure and could not expect the same degree of privacy as someone who is unknown.
David Cameron may sympathise with Princess Caroline. He was said to have been angered by the photographs that emerged this summer of him and his family on holiday in Cornwall. Having arranged a photograph to be taken of him and his wife it was said that the press had agreed to leave him alone thereafter. Photographs of a somewhat pink bare-chested prime minister on the beach were widely published by the UK newspapers, one showed him putting on his shorts with a towel precariously protecting his modesty. Whilst the photographs were clearly the main billing, accompanying articles included commentary on the number of holidays the Prime Minister had taken and his comparative wealth. Whether this debate needed these intrusive photographs rather than the staged photographs is questionable.
The beach photo issue is nothing new. The PCC have grappled with it over many years. In 2000 Anna Ford’s complaint that photos of her and a friend on a beach in Majorca were published in OK! and the Daily Mail. Both publications successfully argued that the beach was public and as such she had no legitimate expectation of privacy. In 2007 Elle Macpherson brought a PCC complaint in near identical circumstances, although she was holidaying in Mustique where the beaches, we are told, are all private. Macpherson’s complaint was upheld. J K Rowling too gave evidence at the Leveson Inquiry of having to complain about photographs published in OK! of her 8 year old daughter on holiday wearing a bikini.
Von Hannover 3 will do little to discourage the editors in their pursuit of the pictures of the holidaying celeb. Of course, courts continue to have latitude to find against a publisher or photographer if the circumstances of publication fall foul of the criteria established in Von Hannover 2 and the tenuous articles that usually accompany the bikini photos so cherished by the Mail online, OK! and others are likely to need more work to enable them to make a “contribution to a debate of general interest”.
Dominic Crossley is a Partner and Head of Defamation and Reputation Management at Collyer Bristow LLP.