The case of Von Hannover v Germany (No. 3) is the third time, since 2004, that Princess Caroline von Hannover has complained to the European Court of Human Rights (“the Court”) of failures by the German courts to prevent the publication of photographs which she claims depict her engaged in private activities.
When giving judgment in Princess Caroline’s first claim (Von Hannover v Germany ((2005) 40 EHRR 1)), Judge Zupančič, concerned that the German courts had made a “fetish of the freedom of the press”, expressed the time had come for the pendulum to swing to a different kind of balance between “what is private and secluded and what is public and unshielded”. The publication of the photographs was found to infringe the applicant’s Article 8 rights.
The status quo, heralded as a victory for the protection of public figures’ privacy rights, underwent a sea change with Von Hannover (No.2) in 2012. The photograph in question showed Princess Caroline and her husband on their skiing holiday in St.Moritz. It accompanied an article describing the ill-health of her father, Prince Rainier III, the then reigning sovereign of Monaco. This time, the Court agreed with the German courts’ analysis and held that the publication, and supporting photograph, contributed to a debate of general interest. Significantly, the judgment set out five criteria relevant to balancing competing Article 8 and Article 10 rights.
The publication at issue in Von Hannover (No. 3) dates from 20 March 2002. The German magazine 7 Tage published an article relating to the recent trend among celebrities of renting out their holiday homes. It went on to describe in detail the von Hannover family villa, located on an island of the Kenyan coast, setting out the furnishings, daily rental cost and activities in the area. The article featured alongside several photographs of the villa, as well as one photograph showing Princess Caroline and her husband on holiday in an unidentifiable location (“the photograph”). The unsuccessful challenge brought by Princess Caroline related to the latter photograph only.
The Court’s judgment on 19 September 2013 follows a six-year appeal process in the German courts. At present, the full judgment is available only in French, although there is an official press release in English.
The Court unanimously held that the German Federal Court’s refusal to grant an injunction prohibiting any further publication of the photograph did not constitute a breach of the applicant’s privacy rights as enshrined in Article 8. 
The Court applied the five considerations set out in Von Hannover (no. 2) and Axel Springer AG for balancing the right to respect for private life against the right to freedom of expression.
1. Whether the information contributes to a debate of general interest
The German courts, the Court noted, had taken the view that, while the photograph in question had not contributed to a debate of general interest, the same could not be said of the accompanying article . The purpose of the article was to relay the trend among celebrities of renting their holiday homes. This could “generate reactions and a dialogue among readers”, thereby “contributing to a debate of general interest”.  The Court concluded that the German courts’ qualification of the subject as an event of contemporary society “could therefore not be described as unreasonable”. 
The Court further remarked the text gave practically no details relating to the private life of the applicant and her husband, focusing instead of the characteristics of the von Hannover villa . It could not, consequently, be claimed that the article was a “mere pretext for publishing the photograph and that the link between the two was purely artificial”.  The Court could therefore “accept that the photograph in question, considered in light of the accompanying article, did contribute, at least to some degree, to a debate of general interest”. 
2. The notoriety of the person concerned
The Court restated that the applicant and her husband must be regarded as public figures, unable to claim the same protection for their private life as ordinary private individuals. 
3. The prior conduct of the person concerned
The Court raised the point made by the applicant that the German courts had failed to “explicitly” consider her efforts to keep her private life out of the press, as manifested by previous legal actions. The Court, however, found that the German courts’ reasoning indicated that this had been considered “in substance”. This, the Court concluded, constituted “sufficient consideration” for the purpose of balancing the competing interests at stake. 
4. Content, form and consequences of the publication
The Court noted that the German courts had designated the picture as being of “little format” and not of itself capable of constituting a violation of Article 8. 
5. The circumstances in which the photograph was taken
Finally, the Court observed that Princess Caroline had failed to adduce evidence before the German courts that the photograph had been taken “surreptitiously or by equivalent means”.  The Court concluded that the circumstances therefore did not require a more thorough examination as Princess Caroline had not put forward any “particular” circumstances before the domestic courts so as to justify prohibiting publication of the photograph. 
Overall, the Court considered that the German courts had given due consideration to the five criteria for the balancing exercise. In these circumstances, and having regard to the margin of appreciation enjoyed by Contracting States, the Court unanimously concluded that the German courts had complied with their positive obligations under Article 8. Accordingly, there had been no violation of that provision in relation to Princess Caroline. 
The judgment offers a clear example of the Court’s increasingly “light-touch” approach to reviewing privacy challenges since Von Hannover (No. 2). Where the balancing exercise has been undertaken in conformity with the criteria laid down in the Court’s case law, the Court will require “strong reasons” to substitute its view for that of the domestic courts. 
A superficial reading of the press release might lead one to think the decision does little more than restate the criteria set out in Von Hannover (No. 2). Closer consideration of the full judgment, however, suggests this may not be the case. Should Von Hannover (No. 3) become final – the Chamber judgment is subject to challenge by either party for a period of three months following its delivery – the decision will endow publishers with substantially greater protection then its predecessor did.
The distinction turns on the analysis of the criterion “contribution to a debate of general interest” at -. It is submitted that the Court’s application of this criterion to the facts is incomplete. The judgment fails to engage with the link between the photograph and the article in question, setting an uncomfortable precedent for celebrity figures.
In Von Hannover (No.2), the Court endorsed the German courts’ analysis that the subject matter of the article relating the illness affecting Prince Rainier and the conduct of his family during that illness qualified as an event of contemporary society.  It constituted a subject on which magazines were entitled to report, and to include the photographs in question “as these supported and illustrated the information being conveyed.” The Court further noted that the German courts had found a “sufficiently close link between the photo and the event described in the article”.  Two questions are essentially addressed in this passage: (1) does the article contributed to a debate of general interest and (2) was the photograph linked to the information being conveyed in the article?
The second question is not posed in Von Hannover (No. 3). Noting (a) the contribution made by the article to a debate of general interest and (b) the absence of any details relating to the applicant’s private life, the judgment then reads “Consequently, the Court could not support the contention that the article was merely a pretext for publishing the photo and that a purely artificial link exists between the two”. 
It is submitted that, in this passage, the Court conflates several principles that should have been dealt with separately. The photographs, considered in light of the article, were found to contribute to a debate of general interest, not because they supported and illustrated the information being conveyed, as in Von Hannover (No. 2), but because it could not be said the article was a mere pretext for publishing the photograph. There is no explanation offered as to why, if at all, a photograph showing Princess Caroline and her husband at an unidentified location was sufficiently linked to the article, which, by the Court’s own admission, “focused mainly on the practical details relating to the villa and its location”.  One is inclined to sympathise with the applicant’s contention that unlike the article in Von Hannover (No. 2), there was effectively no link between the article and photograph in Von Hannover (No. 3). 
By glossing over the need for a link between the photograph and the accompanying article, the Court has placed celebrities in something of a predicament. Publishers now need only show that the article contributes to a debate of general interest, not how or why the photograph in question supports such a contribution. Addressing the latter as a stand-alone question in Von Hannover (No. 3) would, it is submitted, have yielded a more balanced analysis. Instead, the judgment missed the opportunity to address the situation where the article genuinely relates to a debate of public interest, but to which the photograph in question is not sufficiently linked.
The point can be illustrated by considering a hypothetical article describing the risk of sun exposure and the example set by celebrities sporting year-long tans. The threshold for contributing to a debate of general interest would now most certainly be met. Prima facie, such an article could not be said to be merely a pretext for publishing photographs of celebrities. Applying Von Hannover (No.3), editors could conceivably have carte blanche to publish, alongside such an article, photographs of tanned celebrities on holiday, which might satisfy public curiosity but would not actually support the information being conveyed as to the risk of sun exposure. If publishers are able to ensure celebrity photographs are repeatedly accompanied by legitimate stories, where does the remit of Von Hannover (No. 3) end and the protection of privacy begin?
The outcome in Von Hannover (No. 3) follows the momentum of the pendulum swinging back towards freedom of the press in Von Hannover (No. 2). Little is left of the comparatively austere legacy of the first Von Hannover ruling, in which Princess Caroline was held to be a private figure and her daily business not to contribute to an event of contemporary society. The Court’s deference to national courts in Von Hannover (No. 3) and the manner in which it glossed over the need for a link between articles of general interest and the photographs which accompany them highlight this shift. A referral to the Grand Chamber, dealing with the uncertainties posed by Von Hannover (No. 3), would certainly be of interest, not least to those celebrities seeking to protect their private lives from photographic intrusion.
Alexia Bedat is qualifying as a barrister, and will shortly be working as a legal assistant at the French media law practice Bauer & Bigot in Paris
This post was originally written for the ACK Media Law Blog