JURIST Guest Columnist Ansgar Ohly of the University of Bayreuth says that two recent decisions by the European Court of Human Rights offer clarity on the boundaries of the right to privacy and the freedom of expression under the European Convention on Human Rights…

In two judgments, handed down on the same day, the European Court of Human Rights (ECHR) clarifies its position on the balance between the right of celebrities to protect their privacy and the freedom of expression (Articles 8 & 10 of the European Convention on Human Rights). The ECHR consists of five sections, which function as a court of first instance, and the Grand Chamber, which hears appeals. These cases were decided by the Grand Chamber, giving them particular weight.

Both cases show fact patterns that are typical of many other privacy cases. The first case, Von Hannover v. Germany (No. 2), represents the “doing private things in public” category: when can photos of celebrities, taken in public places, be published? Before 2004, the German courts held that the private sphere was territorially restricted: it only extended to a person’s home and to places secluded from the public eye such as a hotel rooms or the back room of a restaurant. In Von Hannover v. Germany (No. 1), which many commentators regarded as an extremely celebrity-friendly judgment, the Third Section of the Court censured Germany for not granting sufficient protection to the private sphere of individuals who do not hold political offices. It further enjoined the courts to distinguish press reports which contribute to a public debate from those which “only satisfy the curiosity of a certain readership.” The German courts reacted by adopting a new approach under which the newsworthiness of a photo had to be determined in every single instance (this development of German case law is described in the ECHR’s judgment in Von Hannover v. Germany (No. 2)). The present case is a borderline case. A magazine published a picture of Caroline, Princess of Hanover, and her husband while on a skiing holiday in St. Moritz. The picture as such was not newsworthy. However, it illustrated a story about Prince Rainier’s medical condition. In particular, it served as evidence that the Princess was on holiday while her father was terminally ill. For this reason, the German Federal Supreme Court and the Federal Constitutional Court allowed the publication. The Princess complained, alleging a violation of her right to privacy.

The second case, Axel Springer AG v. Germany, represents the category of “celebrities misbehaving.” The leading German tabloid broke the news that a well-known television actor had been arrested for possession of drugs at the Munich Oktoberfest. The article was illustrated by portrait photos of the actor. The actor successfully applied for an injunction in Germany. This time, the publisher of the newspaper brought the complaint, alleging an undue restriction of the freedom of expression. The case is strongly reminiscent of the English case of Campbell v. Mirror Group Newspapers Ltd, in which the House of Lords prohibited the publication of a press report which showed photos of Naomi Campbell attending a Narcotics Anonymous meeting.

In its judgments for Von Hannover (No. 2) and Springer, the ECHR stresses the importance of both the right to privacy and the freedom of expression, which is “one of the essential foundations of a democratic society.” While both rights were initially seen as rights of the individual against the state, they also create an obligation for the member states to protect individuals from intrusion by others. Whereas in Von Hannover (No. 1) the Third Section mainly stressed the need for a strict protection of privacy, the ECHR now holds that the result of the balancing exercise should be the same regardless of whether the complainant claims a violation of privacy (as in the Von Hannover cases) or an undue restriction of the freedom of expression (as in Springer). In both cases, the ECHR sets up criteria for the balancing exercise. First, the article must contribute to a debate of general interest. Unlike in Von Hannover (No. 1), the ECHR now stresses that the public is not only interested in political or criminal issues. Second, it matters how well the person is known. Whereas in Von Hannover (No. 1) the judgment was unsatisfactory in that it only drew a distinction between politicians and private persons, leaving no room for media celebrities in between, the ECHR now distinguishes between private persons and persons acting in a public context. Third and fourth, the courts are called upon to look at the prior conduct of the person concerned and at the content and consequences of the publication. Fifth, the circumstances under which photos were taken are to be considered: were they taken with the person’s consent, openly or surreptitiously, or even by illicit means?

Applying these criteria, the ECHR, in a careful analysis of the German cases, upheld the decision by the German courts to allow publication of the photos taken of the Princess in St. Moritz. The ECHR noted that the German courts changed their approach after Von Hannover (No. 1) and that they now distinguish carefully between articles of public interest and mere gossip. The skiing photos “did contribute, at least to some degree, to a debate of general interest.” In Springer, the ECHR adds two criteria: the reliability of the journalistic information and the severity of the sanction imposed by the courts. Again, the ECHR adopted a press friendly position, which in this case means that the Federal Republic of Germany is condemned for having unduly restricted the freedom of expression: the public had a right to be informed about criminal cases, the complainant was a popular actor, the information was reliable and neither the article nor the photos went beyond what was necessary to inform the public.

The ECHR also took the opportunity to clarify the margin of appreciation which the member states enjoy. Europe is not a federal state; European societies vary significantly. What is more, the territorial scope of the European Convention on Human Rights is not limited to the EU, but extends to almost all European states, including eastern and south-eastern European countries. While all states must respect the right of privacy and the freedom of expression, there is a difference between, for example, the French tradition of protecting personal reputation rather intensively, and the British liberal tradition, where even the yellow press and tabloid papers enjoy considerable freedom. One of the criticisms which commentators rightly voiced against the Von Hannover (No. 1) judgment was that the Third Section implicitly adopted the strict French approach without commenting on the margin of appreciation. In the present judgments, the ECHR does better. The ECHR stressed that “there are different ways of ensuring respect for private life” and that “the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression … is necessary.” The ECHR defined its function as supervisory: it does not take the place of the national courts, but instead reviews whether the national decisions are compatible with the convention. Hence, the national courts are under an obligation to identify the human rights at stake and to balance them in accordance with the criteria set up by the European Court of Human Rights. But whether the story of a terminally ill monarch is sufficient to justify the publication of a photo which shows his daughter enjoying herself on the slopes of Switzerland is a matter on which even courts which subscribe to a high standard of human rights protection can legitimately disagree. In Von Hannover (No. 2), the ECHR takes its own attitude of judicial self-restraint seriously. In Springer, however, five judges dissent: they think that the German court’s decision about whether the story of an actor taking drugs is of public interest should not have been overturned.

To conclude: the Grand Chamber has corrected several mistakes made by the Third Section in Von Hannover v. Germany (No. 1). First, while the Third Section was evidently driven by the intention to protect the Princess in one individual case, the ECHR now sets up a general list of criteria which add rationality to the difficult and sometimes subjective balancing exercise between privacy and the freedom of expression. Second, the ECHR rejected the rather broadbrush and simultaneously elitist distinction drawn in Von Hannover (No. 1) between political issues which can be legitimately discussed and stories about private persons, which merely serve to “satisfy the curiosity of a certain readership.” Rather, the ECHR acknowledged that the public may legitimately be interested in whether Princess Caroline takes care of her father or whether a well-known television actor is arrested for the possession of drugs. This does not mean that celebrities would be free game for the press: a celebrity could still prohibit photos showing her while shopping. Third, the ECHR acknowledged more clearly than before that the contracting states enjoy a margin of appreciation. Human rights reflect fundamental values of societies and communities. While there is a common European set of values, it would be wrong to ignore the fact that courts in London, Paris, Istanbul or Moscow may strike the balance between competing rights differently.

However, the ECHR cannot be spared two critical remarks. First, the necessity to judge the newsworthiness of an article in every single instance creates legal uncertainty and may have a chilling effect, particularly on smaller newspapers which do not have their own legal department. As Lord Hoffmann remarked in the British Campbell case: “Judges are not newspaper editors,” and, one may add, newspaper editors are not judges. The former German approach to the publication of photos may have sometimes resulted in rough justice, but it was much easier to apply for journalists in their everyday business and it made sure that the decision about newsworthiness is made by the press, not by judges. Second, the ECHR does not take its own position of self-restraint seriously: in Springer, the German decision to ban the photos was probably within the boundaries set by the convention. Arguably it should have been respected. That the balance struck by the ECHR in Springer is more convincing in substance is a different matter.

Ansgar Ohly is the Chair for Civil Law and Intellectual Property Law at the University of Bayreuth. He is also a Visiting Professor at the University of Oxford. Ohly’s research interests include intellectual property law, the law of publicity and privacy, and unfair competition law, with a focus on the comparison of civil and common law systems running through all areas of his work.

Suggested citation: Ansgar Ohly, Privacy v. Freedom of Expression in the ECHR, JURIST – Forum, Apr. 3, 2012, http://jurist.org/forum/2012/03/ansgar-ohly-privacy-rights.php.