Case Watch: Balancing Privacy and Public Interest on the Slopes of St. Moritz

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

On February 7, the Grand Chamber of the European Court of Human Rights (ECHR) delivered a much-anticipated judgment in the case of von Hannover v. Germany (no.2), which was brought before the court by Princess Caroline of Monaco. The princess had won an earlier case brought in 2000, von Hannover v. Germany, to prevent the publication of photographs of herself in the German press. That earlier judgment was considered a major victory for the protection of her and other public figures’ privacy rights, but at the same time it was seen by media freedom advocates as a blow to freedom of expression in Europe. This time around, however, the press emerged victorious. Has the court changed its mind about where the right balance between the protection of private life and the protection of the freedom of expression should be struck?

The earlier case had concerned photos of the Princess in public places showing scenes from her daily life. The German courts had found that Princess Caroline was undeniably a contemporary “public figure par excellence”, and therefore had to tolerate the publication of such photographs even when they were not related to her official duties. But the ECHR found that the photos and articles had not made a contribution to a debate of general interest, and that the means of taking the photos were harassing and involved a strong sense of intrusion into private life. Moreover, it concluded that the criteria that had been established by the domestic courts to distinguish a figure of contemporary society “par excellence” from “a relatively public figure” were not sufficient to ensure the effective protection of her private life.

The second Hannover case revolved around a photo of the Princess and her husband taking a walk on their skiing holiday in St. Moritz, the Swiss luxury ski resort, accompanied by an article discussing the poor health of her father Prince Rainier. Relying on the first Hannover case, the Princess and her husband had sought an injunction in the German courts against the publication of further photos. While providing an injunction against the publication of the further disputed photos, the German courts found the publication of this particular one, in the context of the deteriorating health of the Prince, to be of public interest.

The Princess and her husband complained that the refusal by the German courts to grant an injunction against any further publication of the photo had violated their right to respect for their private life under Article 8 of the European Convention of Human Rights. This time the ECHR agreed with the German courts and accepted the position that the publication was justified by the public interest. It reiterated the general principles and its previous case law concerning private life and freedom of expression, including its judgment in the earlier Hannover case. It also relied heavily on the decision of the German Federal Court of Justice, and emphasized member states’ broad margin of appreciation in matters like this.

In light of these factors, the ECHR derived five criteria for balancing private life and freedom of expression in its landmark decision:

1. There needs to be consideration of the degree to which the publication (be it a photo or an article) contributes to a debate of general interest, which is to be judged on a case-by-case basis.
2. The status of the person concerned as a private individual or a public figure is also determinative, since reporting on details of the lives of private individuals is less likely to contribute to “a debate in a democratic society,” and thus, the press’ role as a “public watchdog” also diminishes in this case. Even though in certain cases the public has the right to be informed of “aspects of the private life of public figures,” the reason for this must be more than mere “public curiosity.”
3. Prior conduct of the person with the press needs to be taken into account.
4. The way of publication of the photo or report as well as the manner of representation of the person concerned need to form part of the consideration.
5. Whether the photo was taken with the consent of the persons concerned or was done “without their knowledge or by subterfuge or other illicit means” is to be weighed.

Striking a markedly deferential tone, the ECHR took the view that the German court’s interpretation that the illness of Prince Rainer qualified as an event of contemporary society “cannot be considered unreasonable.” The ECHR also applauded the German Federal Court of Justice’s assessment of the information value of the photo in the given context and acknowledged its contribution to a debate of general interest. The ECHR found that Princess Caroline and her husband are to be regarded as public figures; and concluded that “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.” The decision is yet another proof of the commitment of the ECHR in the maintenance of the freedom of expression in Europe.

Despite the fact that this time the ECHR handed down a decision unfavorable to the Princess, its approach in this case is consistent with that in the former von Hannover decision. At the same time, the new, more concise expression of the ECHR’s previously expressed views on the issue of finding a balance between the right to private life and freedom of expression is a welcome development.