In case of Lillo-Stenberg and Sæther v. Norway ([2014) ECHR 59) the Court of Human Rights held that the publication of long lens “paparazzi” photographs of a private wedding taken from a public place did not violate the privacy rights of the couple. The Court held that the rejection of the couple’s claim by the majority of the Norwegian Supreme Court within the State’s “margin of appreciation” and that, as a result, there was no violation of Article 8.
Background
The applicants are well-known musician and actress in Norway. On 20 August 2005, they married in a private ceremony which took place outdoors on an islet in the municipality of Tjøme in the Oslo fjord, approximately 100 km south of the capital.
The bride arrived at the islet in a rowing boat, with six bridesmaids on board. There she was greeted by her future husband and by a men’s choir singing a hymn. After the ceremony the bride and groom had to step from rock to rock in order to reach the shore, which the bride accomplished in bare feet.
Without the couple’s consent, the weekly magazine Se og Hor subsequently published a two-page article about the wedding accompanied by six photographs. They showed the bride, her father and bridesmaids arriving at the islet in a small rowing boat, the bride being brought to the groom by her father and the bride and groom returning to the mainland on foot by crossing the lake on stepping stones. In the last photograph, the bride was barefoot with her wedding dress raised above her knees to avoid getting the dress wet.
The photographs were taken from about 250 meters away with a 300 to 400 mm zoom lens.
The article described the ceremony, the applicants and some of the guests. It stated, inter alia, that the ceremony was touching; that several guests could not hold back their tears when the bride arrived at the islet. It also stated that the applicants’ manager had informed the magazine that the applicants did not wish to comment on their wedding. The couple brought compensation proceedings against the magazine and won before Oslo District Court and the Borgarting High Court.
However, on 2 September 2008, by a majority of 3:2, the Supreme Court found against the couple.
The Court of Human Rights sets out the relevant parts of the majority ([13] – Mr Justice Utgård) and minority ([14] – Mr Justice Tønder) judgments. The full decision can be found here [pdf] (in Norwegian) (Curiously the domestic judges are identified only by initials by Court of Human Rights).
The majority held that there was no violation of the applicants’ privacy for a number of reasons. The text and the photos contained nothing offensive or damaging to the applicants’ reputation. The wedding was in a place which was accessible to the public. The photographs did not show the most personal part of the wedding, the actual ceremony.
It appears that the majority were strongly influenced by the “spectacular” nature of the wedding – in particular the open boat and the men’s choir. They were of the view that this attracted public attention. As a result, although they were of the view that all individuals, including celebrities, are entitled to protection against being photographed in public places, there was no unlawful violation of privacy. They were not of the view that the article contributed to a debate of general interest – describing it as having “a purely entertainment value”.
The minority in the Supreme Court pointed out that the place were the weeding took place was linked to a hotel where a private wedding party had taken place. They were of the view that the wedding was a private event and the couple were entitled to protect themselves from publicity. They regarded the question of contribution to a debate of general interest as being the “main question” and agreed with the majority that the publication was a “celebrity article written for the sole purpose entertainment”.
On 5 March 2009, the applicants lodged an application in the Court of Human Rights relying on Article 8. They complained that their right to respect for private life had been breached by the Supreme Court’s judgment. The application was communicated on 26 May 2010.
Judgment
In its judgment of 16 January 2014, the First Section began from the premise that a fair balance had to be struck between the applicants’ right to protection of their private life under Article 8 and the publishers right to freedom of expression under Article 10 [25].
After reiterating some general principles relating to private life ([26] and [27]) and freedom of expression ([28] to [32]), the Court repeated the guidance on balancing Articles 8 and 10 set out by the Grand Chamber in two privacy decisions handed down on the same day (Axel Springer v Germany [2012] ECHR 227,[89] to [95], Von Hannover v. Germany (No. 2) [2012] ECHR 228, [108] to [113]). The Court then considered the application of the Axel Springer criteria to the facts of the case.
(i) contribution to a debate of general interest: The Court said that it was useful to recall that it has
“recognised the existence of such an interest not only where the publication concerned political issues or crimes, but also where it concerned sporting issues or performing artists” [36]
The Court accepted that a wedding has a public side and that there was, therefore, an element of general interest about in the applicant’s wedding [37].
(ii) how well known is the person concerned and what is the subject of the report? The Court pointed out that although the applicants had no public community functions “they were well known performing artists and accordingly public figures.” [37] The subject matter of the report was their wedding – which had an element of general interest.
(iii) prior conduct of the person concerned. The Court noted that
“the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the party concerned of all protection against publication of the article and the photographs at issue”. [38]
It endorsed the view of the Supreme Court that “the protection of privacy is no weaker for well-known cultural personalities than it is for others”
(iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken: The applicants did not consent to the taking of the photographs which were obtained by a photographer who was “hiding and using a strong telephoto lens” [39]. It was however relevant that “the ceremony took place in an area that was accessible to the public, easily visible, and a popular holiday location, it was likely to attract attention by third parties“. [43]
(v) content, form and consequences of the publication. The article was not unfavourable to the applicants and did not photograph the actual ceremony.
The First Section concluded that
“both the majority and the minority of the Norwegian Supreme Court carefully balanced the right of freedom of expression with the right to respect for private life, and explicitly took into account the criteria set out in the Court’s case‑law which existed at the relevant time” [44]
As a result, although opinions might differ as to the outcome, having regard to the margin of appreciation, the Court conclude that there was no violation of Article 8.
Comment
This is an interesting and finely balanced decision which turned on the “margin of appreciation” which Strasbourg properly accords to the domestic courts when they carry out “balancing” exercises of this kind. Nevertheless, there are serious problems with the reasoning of both the majority of the Supreme Court and the Court of Human Rights.
The domestic court concluded that the article made not contribution to a debate of general interest (in contrast, for example, to the articles in both the Axel Springer and Von Hannover (No.2) cases – see our posts here and here). In other words factor (i) favoured striking the balance on the side of Article 8.
Factors (ii) and (iii) were, at best, neutral between Articles 8 and 10. Factor (iv) favoured striking the balance in favour of Article 8 – as this was a classic case of “surreptitious photography” and the public accessibility of the land was not a decisive factor.
In relation to factor (v). although the article was not “unfavourable” (in the sense of critical or unpleasant), this is obviously not decisive in the privacy context. There is nothing under this heading which points in favour of publication. In particular, none of the judges involved were of the view that the “public accessibility” of the wedding was a decisive factor.
In short, on the First Section’s own analysis, they should have held that the Norwegian courts should have struck the balance in favour of Article 8 and dismissed the domestic appeal. This was a case involving “entertainment journalism” and surreptitiously taken photographs by hidden photographers in which the publication of the photographs had no proper justification.
There is, therefore, a strong argument that the Court of Human Rights should have held that the reasoning of the minority in the Norwegian Supreme Court was persuasive. As Mr Justice Tønder put it
“Although the desire to entertain is in itself legitimate, its nature does not justify overriding the affected parties’ desire to protect their privacy. In this connection I place special emphasis on the fact that getting married is a very significant occasion in a person’s life, and that therefore the activities celebrating it ‒ the marriage ceremony and the wedding party ‒ will for most people be one of the most important events of their lives, and will often be associated with strong emotions“.
A number of the judges in this case were sceptical about the the private nature of spectacular celebrity weddings. Nevertheless, celebrities are – as the Courts accepted in this case – entitled to protect their private lives as much as everyone else. It seems likely that, should a similar case arise in the English Courts, it would be held that the publication of this kind of photograph constituted a misuse of private information.
Hugh Tomlinson QC is the joint author of The Law of Human Rights, 2nd Edn, OUP, 2009, and an editor of Inforrm
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