ECHR: It's those human rights again... or: Princess Caroline and her quest for privacy

Yes, it's those human rights again.... but no Max Mosley is not involved - this time.

Since the early 1990s Princess Caroline of Monaco (now Princess Caroline of Hanover, left) has been trying – often through the (German) courts – to prevent the publication of photos about her private life in the media (see IPKat reports here) and this Kat very fondly remembers some of the initial court cases from Germany involving the glamorous Princess which this Kat commented on in her doctoral thesis. Well, Princess Caroline's quest for privacy is still going on and this time we have news from the European Court of Human Rights in Strasbourg.

The Strasbourg court had to decide two cases from Germany and both cases relate to the delicate balance between freedom of expression of the media and a celebrity's right to privacy: Article 10 vs Article 8 of the European Convention on Human Rights. Interestingly and potentially also important for the Leveson inquiry in the UK, the court in both cases decided to shift the balance from privacy rights towards freedom of expression.

Now what had happened?

The first case (Axel Springer v Germany (App No 39954/08)) concerned media reports about a famous German TV personality who had been arrested for allegedly having used cocaine. This famous German TV personality successfully obtained a ban on the publication of further photos and articles regarding his cocaine arrest case arguing that these infringed his right to a private life as guaranteed by Article 8. The German courts agreed. However, this was appealed all the way to Strasbourg by the publisher of the media reports, German publishing house Axel Springer, who in turn argued that the German judgements infringed its right to freedom of expression under Article 10 of the European Convention on Human Rights.

In this case, the court assessed six points to establish whether the sanctions imposed by the German courts had been justified under Article 10(2): "Contribution to a debate of general interest"; "how well known is the person concerned and what is the subject of the report?"; "the method of obtaining the information and its veracity"; the" content, form and consequences of the impugned article" and the "severity of the sanctions".

The court found that report contributed to a debate of public interest. Secondly, the TV personality was well known. Regarding the subject of the publication, the Strasbourg court agreed with the German court ("The Court can broadly agree with that assessment"):

"... X was arrested in public, in a tent at the beer festival in Munich. In the Court of Appeal’s opinion, that fact was a matter of important public interest in this case, even if that interest did not extend to the description and characterisation of the offence in question as it had been committed out of public view."

The TV personality had further actively sought the limelight since...

"(he) had himself revealed details about his private life in a number of interviews (...). In the Court’s view, he had therefore actively sought the limelight, so that, having regard to the degree to which he was known to the public, his “legitimate expectation” that his private life would be effectively protected was henceforth reduced (see, mutatis mutandis, Hachette Filipacchi Associés (ICI PARIS), cited above, § 53, and, by converse implication, Eerikäinen and Others, cited above, § 66)." (... ) it should also be pointed out that all the information revealed by the applicant company on the day on which the first article appeared was confirmed by the prosecutor W. to other magazines and to television channels. "

Finally, the publication did not have serious consequences for the TV personality:

"The severity of the sanctions imposed on the applicant company, the Court considers that, although these were lenient, they were capable of having a chilling effect on the applicant company. In any event, they were not justified in the light of the factors set out above."

On balance, court held the interference with publisher's rights was not “necessary in a democratic society” and thus infringed its rights of freedom of expression, Article 10.

"Despite the margin of appreciation enjoyed by the Contracting States, the Court considers that there is no reasonable relationship of proportionality between, on the one hand, the restrictions imposed by the national courts on the applicant company’s right to freedom of expression and, on the other hand, the legitimate aim pursued."

The second case (von Hannover v Germany (No.2) (App Nos. 40660/08 ; 60641/08)) concerned Princess Caroline and involved the publication of a photograph showing Princess Caroline and her husband Ernst August von Hannover during a skiing holiday in St Moritz in 2002. The photo was accompanied by an article on Caroline's father's, Prince Rainier of Monaco, frail health. In essence, the German courts had held that the report concerned a topic of general interest. The German courts further found that the public had a legitimate interest to learn about how Prince Rainier's children were behaving during the time of his illness. Princess Caroline and her husband alleged that the refusal by the German courts to grant an injunct

ion against any further publication of the photos infringed their right to respect for their private life as guaranteed by Article 8 of the European Convention on Human Rights.

Here, the Strasbourg court upheld the German courts' decisions stressing that the photographs had neither been taken in “unfavourable circumstances” nor were they offensive in themselves. The court confirmed that the German courts had properly balanced the rights of the publisher's right to freedom of expression against the Princess's and her husbands rights under Article 8, since the accompanying article had contributed to a debate of general interest.

"120. ... that irrespective of the question whether and to what extent the first applicant (the Princess) assumes official functions on behalf of the Principality of Monaco, it cannot be claimed that the applicants, who are undeniably very well known, are ordinary private individuals. They must, on the contrary, be regarded as public figures... ."

"122. The Court observes that the Federal Court of Justice concluded that the applicants had not adduced evidence of unfavourable circumstances in that connection and that there was nothing to indicate that the photos had been taken surreptitiously or by equivalent secret means such as to render their publication illegal. The Federal Constitutional Court, for its part, stated that the publishing company concerned had provided details of how the photo that had appeared in the Frau im Spiegel magazine had been taken, but that the first applicant had neither complained before the civil courts that those details were inadequate nor submitted that the photo in question had been taken in conditions that were unfavourable to her.

123. The Court observes that, according to the case-law of the German courts, the circumstances in which photos have been taken constitutes one of the factors that are normally examined when the competing interests are balanced against each other. In the present case it can be seen from the decisions of the national courts that this factor did not require a more thorough examination as the applicants did not put forward any relevant arguments and there were no particular circumstances justifying an injunction against publishing the photos. The Court notes, moreover, as pointed out by the Federal Court of Justice, that the photos of the applicants in the middle of a street in St. Moritz in winter were not in themselves offensive to the point of justifying their prohibition."

The Strasbourg "court concludes that the [national courts] have not failed to comply with their positive obligations under Article 8 of the Convention. Accordingly, there has not been a violation of [Article 8]". The magazine had not therefore infringed Princess Caroline's privacy rights under Article 8.

Both decisions are well worth a much, much closer read, in particular since they summarise the case law very well and are properly reasoned. This Kat will also be interested to see whether the reasoning of these two judgments will be discussed in the Leveson inquiry in the UK. There is one thing this Kat is quite convinced of: Princess Caroline will continue her quest for privacy and the next generation is following in her footsteps. Her daughter, the beautiful Charlotte Casiraghi, has herself already filed several high profile privacy law suits in Germany, see here (in German). This litigious family might indeed provide this Kat with interesting case law until her retirement....