Out-Law News | 08 Feb 2012 | 10:39 am | 4 min. read
In two landmark rulings by the Court involving an unnamed German actor and Princess Caroline of Monaco the Court determined in each case that the media's right to free speech was more pressing than the actor and Princess's privacy rights.
If the publication of information contributes to a debate of general interest, if the individual is a public figure and the subject of the report about them has a legitimate reason to detail information about that person's private life, then the media can publish that information, the Court said.
"A fundamental distinction needs to be made between reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions for example, and reporting details of the private life of an individual who does not exercise such functions," the Court said.
"Although in certain special circumstances the public’s right to be informed can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this will not be the case – despite the person concerned being well known to the public – where the published photos and accompanying commentaries relate exclusively to details of the person’s private life and have the sole aim of satisfying public curiosity in that respect," it said.
Whether the individual has already appeared in the media will also have a bearing on the right to publish information about them, although this does not deprive that person "of all protection" to their privacy, the Court said.
Other factors the media must consider when weighing up their rights to publish information is the "way in which the photo or report are published and the manner in which the person concerned is represented in the photo or report" and the consequences of that publication, such as how widely the information will be "disseminated". The circumstances in which photos are taken also "cannot be disregarded".
"Regard must also be had to the nature or seriousness of the intrusion and the consequences of publication of the photo for the person concerned. For a private individual, unknown to the public, the publication of a photo may amount to a more substantial interference than a written article," the Court said.
The Court ruled that the media had a legitimate right to publish a photograph of Princess Caroline of Monaco alongside a story reporting the ill-health of her father, Prince Rainier of Monaco. The media's right to publish the photo outweighed the Princess' right to a private life in that circumstance, the Court said. German courts, which had refused the Princess an injunction banning the publication of the photograph, had not infringed the Princess' privacy rights as a result, it said.
Two German magazines had published three separate photos of the Princess on holiday in 2002, 2003 and 2004. Princess Caroline and her husband complained about the publications and sought injunctions against future publications of the photos through the German court system. In 2008, following a protracted legal battle, the German Federal Constitutional Court determined that whilst two of the photos were intrusive of her privacy, one photo of the Princess and her husband out for a walk during their skiing holiday was legitimately published alongside a report of her father's ill health.
The Grand Chamber at the European Court of Human Rights said the German courts had balanced the competing rights of the media and the Princess correctly and taken account of all the determining factors in doing so.
"The Court observes that, in accordance with their case-law, the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest. They also examined the circumstances in which the photos had been taken," the Court's ruling said.
"The Court also observes that the national courts explicitly took account of the Court’s relevant case-law ... In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the latter have not failed to comply with their positive obligations [to protect the fundamental rights of individuals to privacy and to a private family life] under Article 8 of the [European] Convention [on Human Rights]. Accordingly, there has not been a violation of that provision," it said.
Under the European Convention on Human Rights individuals have a general fundamental right to a private life whilst there is also an equal right of the media to freedom of expression. The European Court of Human Rights applies the Convention and is tasked with ensuring countries in the Council of Europe (CoE) respect the rights and guarantees set out in it.
The CoE is made up of 47 member countries and is Europe's human rights watchdog. The CoE is separate from the European Union and creates and recommends collaborative legal measures on human rights issues. It is the body behind the European Convention on Human Rights and the Court.
In a second judgment the Court also found that a German court's decision to fine a daily newspaper when it reported that an unnamed German actor faced drugs charges was not justified. The German court had given too much weight to the rights of the actor to the protection his image and the decision to issue a fine risked "having a chilling effect" on the newspaper, the Court ruled.