The right to privacy for a European head of state has hardly been more topical. Just as we (perhaps more so than the French) are transfixed by the surreptitious scooter-shenanigans of President Francois Hollande, the European Court of Human Rights publishes its judgment in a case concerning the privacy of the Finnish ex-Prime-Minister Matti Vanhanen, Ruusunen v Finland.
Although President Hollande indicated that he was considering legal action on the day that Closer magazine published its exposé, it appears that it is his alleged girlfriend Gayet who will be pursuing the first action. Her lawyers would be well advised to study the Ruusunen Judgment carefully, as will those working for Closer magazine.
Susan Ruusunen was a girlfriend of the then Prime Minister Vanhanen for a period of approximately nine months. Vanhanen was divorced and unlike Hollande, there was no question that he was in a relationship with anyone else at the time of his relationship with Ruusunen. Ruusunen wrote a book detailing her relationship with Vanhanen and published it whilst he was still Prime Minister in 2007. As described in the Judgment, the book contained information including:
- The fact of the relationship and his family habits (largely already in the public domain)
- How they met and how quickly their relationship had developed
- The different lifestyles of Ruusunen, a single mother, and Vanhanen the Prime Minister and her experience of a relationship in this context
- Her account of his children’s views and behaviour
- Their sex life at the beginning of their relationship and descriptions of their “brief and intimate moments as well as giving massages to each other, and accounts of their sexual intercourse”.
Upon publication the public prosecutor (the action was not initiated by Vanhanen) brought charges under Chapter 24 section 8 of the Finnish Penal Code for having breached the privacy of the Prime Minister. The prosecutor failed at first instance, but succeeded on appeal insofar as the Court found that the book’s references to the views of the Prime-Minister’s children and the information upon the “intimate” aspects of the relationship had unlawfully violated their right to privacy notwithstanding that the Helsinki Appeal Court acknowledged that as Prime-Minister’s he should expect more limited protection than a normal citizen.
Ruusunen was fined €300 and forfeited €4,270 in respect of the proceeds of the crime. Ruusunen appealed to the Supreme Court which upheld the decision of the Appeal Court save as to find the book’s references to the views of the Prime Minister’s children was not a violation of privacy given that they only amounted to her interpretation of their views. Only 7 extracts from the book concerning their sex-life contravened the Prime-Minister’s core area of private-life and would be likely to cause him suffering and contempt such as would justify the need to restrict Ruusunen’s freedom of expression. The Supreme Court acknowledged that the book did contain areas that contributed to legitimate public discussion including how the couple met, how quickly their relationship developed and the accounts of the differences of their standards of living.
The Fourth Section of the European Court of Human Rights (“ECHR”) in its judgment of 14 January 2014 came to the same conclusion. Referring to the test set out in Von Hannover (No 2) the Court commented
“the Court notes that it was equally clear that the former Prime Minister had been a public figure at the time when the book was published. He was thus expected to tolerate a greater degree of public scrutiny which may have a negative impact upon his honour and reputation than a completely private person.”
It went on to agree with the judgment in the Supreme Court as to those elements of the book that from “the point of view of the general public’s right to receive information about matters of public interest” Ruusunen was entitled to publish. Ruusunen argued that she was entitled disclose information pertaining to her private life and that her accounts of their sexual encounters would simply be assumed if omitted given that they were two adults in a relationship, and as such their disclosure could not be construed as exposing private information. However the ECHR did not think that there were sufficiently strong grounds to overturn the Supreme Court’s conclusions that the balance between freedom of expression of the author and the ex Prime-Minister’s rights, where it came to the extracts of the book relating to the couple’s sex life, the balance weighed in favour of the protection of privacy.
The Ruusunen case supports the contention that there is a line in the sand beyond which a publisher cannot go. Intimate accounts of sexual encounters will need a compelling public interest to justify publication, in the absence of consent, and simply because the subject is the Head of State will not be enough.
In so far as it assists the protagonists in the Hollande affair, this case did not concern the revelation of the relationship itself, which was in the public domain prior to the publication of the book. Ruusunen’s account of how her relationship started and developed was acknowledged in the Finnish Courts and ECHR to be capable of contributing to legitimate public debate upon the Finnish Prime Minister’s judgment. But Closer should be forewarned that by straying into any detailed accounts of his sex-life they are likely to be found to have exceeded the considerable latitude afforded by Article 10 and will justify judicial sanction (albeit the sanction Ruusunen received from the Finnish Court appears to be modest to say the least).
Our Prime-Minister’s privacy considerations seem decidedly mundane in comparison.
Dominic Crossley is a Partner and Head of Defamation and Reputation Management at Collyer Bristow