Case Summary and Outcome

The European Court of Human Rights found that Germany had not violated the right to respect for the private life of Ernst August von Hannover, a public figure of German royal lineage. The case concerned the refusal by the German domestic courts to prioritize the personality rights of the applicant over British American Tobacco (Germany) GmbH’s right to freedom of expression. The tobacco company launched a satirical cigarette advertising campaign featuring the applicant’s two forenames without his consent and alluding to his  physical altercations, which had been reported in the media. The Court held that the German Federal Court of Justice had struck a fair balance between the competing interests at issue by according priority to the company’s right to freedom of expression, even though the advertisement was commercial in nature and sought to make profit from unauthorized use of the applicant’s forename. Further, the Court found that the advertisement was capable of contributing to a public debate as a form of artistic expression and social commentary and, given the applicant (and his prior conduct) was well known to the general public, his “legitimate expectation” to effective protection of his private life was reduced.

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Facts

On 27 March 2000, British American Tobacco (Germany) GmbH (BAT) launched a ten-day advertising campaign for Lucky Strike cigarettes. The top half of the advertisement read “Was it Ernst? Or August?”, while the lower half depicted a crumpled pack of Lucky Strike cigarettes alongside the slogan “Lucky Strike. Nothing else.” Spanning thousands of billboards, full-page magazine advertisements, and posters at bus stops and other busy locations in 18 towns and cities across Germany, the campaign had potential to reach approximately 2.97 million people.

This Lucky Strike advertisement was an allusion to Ernst August von Hannover (the applicant), formally titled His Royal Highness the Prince of Hanover, and his two public physical altercations in 1998 and 2000 (the latter of which resulted in an assault conviction). Whilst the agency that designed the advertisement agreed to discontinue the campaign at the applicant’s request, BAT refused. The applicant thus made an urgent application the Hamburg Regional Court and was granted an interim injunction against any further distribution of the advertisement on March 31, 2000. BAT discontinued the Lucky Strike campaign but refused to reimburse the applicant for costs incurred and did not respond to his subsequent request for damages of EUR 250,000.

In December 2003, the applicant sought an order from the Hamburg Regional Court requiring BAT and the advertising agency to pay him: EUR 100,000 for a “notional licence” for their usage of his personality; the sum of the previous legal costs incurred; and upwards of EUR 500 in non-pecuniary damages (that is, compensation for damage that cannot be easily measured in monetary terms) for their infringement of his right to protection of personality rights. In January 2005, the Hamburg Regional Court awarded the applicant EUR 60,000 in pecuniary (financial) damages to compensate for the notional licence and legal costs but dismissed his application for non-pecuniary damages.

The Regional Court reasoned that the right to protection of personality rights and the right to freedom of expression in advertising (so far as it contributes to the shaping of public opinion) are both protected under German law and, ‘in principle, they deserved equal respect’ [para. 13]. Nevertheless, the right to protection of personality rights generally prevails in cases such as the one before it, where a person is used for advertising purposes without their consent. However, the Court emphasized that there had been no serious interference with the protection of the applicant’s personality rights because the events alluded to in BAT’s advertisement took place in a public place, had been caused by himself, and had already been reported in the press. As such, the Court refused to award the applicant compensation for the infringement of this right. The Hamburg Court of Appeal also upheld the Regional Court’s judgment in May 2007, simply adjusting the order reimbursing the previous legal costs incurred. An appeal was then granted to the Federal Court of Justice, on the ground that the Court had not as yet determined whether the use of a famous person’s name in an advertisement was justified when it made reference to a contemporary event which was of no or very little interest to the public (other than for entertainment purposes).

The Federal Court of Justice quashed the Hamburg Court of Appeal’s judgment in June 2008. Crucially, the Court observed that the German constitution expressly protected freedom of expression (per Article 5§1 of the Basic Law), while the pecuniary components of the right to protection of personality rights and to one’s name were only protected by civil law. The Court clarified that the non-pecuniary elements of personality rights were protected under the German constitution, but that this component had already been dismissed by the Regional Court. As such, the Federal Court was only dealing with the pecuniary component of this right to protection of personality rights, and when compared to the constitutional right to freedom of expression, the former could not prevail.

Further, the Federal Court found that advertisements, including those with references purely for entertainment or general interest purposes, could still assist in shaping public opinion, or even “stimulate or influence the shaping of public opinion more effectively than strictly factual information” [para. 23]. The Court thus found BAT’s satirical references to the applicant’s violent conduct to be part of a wider public debate about his “aggressive attitude” [para. 26] — even if it was mainly intended to increase sales of Lucky Strike cigarettes — and as such it was not offensive or hugely degrading to him.

The Federal Constitutional Court declined to accept a constitutional complaint on the case by the applicant in April 2009. In October that same year, the applicant lodged an application with the European Court of Human Rights (ECtHR).

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Decision Overview

The ECtHR delivered a majority judgment, with Judge Zupancic dissenting.

The main issue before the Court was whether the Federal Court of Justice had unfairly balanced the competing rights of freedom of expression with the protection of personality rights by refusing to grant the applicant a notional licence to compensate for the unauthorized use of his name in BAT’s advertisement campaign. This, the applicant contended, constituted a violation of his right to respect of his private life per Article 8 of the European Convention on Human Rights.

The applicant submitted that the Federal Court of Justice’s differentiation between the pecuniary and non-pecuniary components of the right of protection to personality rights was artificial, and by finding the law protecting those pecuniary components to be deferential to German constitutional law, the Federal Court of Justice had “disregarded that Article 8 of the Convention conferred on an individual the right to decide to whom and the extent to which he or she wished to disclose personal information to others” [para. 40]. The applicant asserted that the Court had “automatically prioritized” BAT’s commercial interests over his right to protection of personality rights when conducting its balancing exercise, by protecting freedom of expression that is purely consumer and sales-driven instead of considering that the advertisement did not contribute to the formation of public opinion or “transmit to the general public any kind of information on a significant event in contemporary history” [para. 41]. Further, the applicant argued that the German courts had deprived his injunctive relief of any real effect by finding the advertisement to be lawful and thus allowing BAT the option to apply to have the Regional Court’s injunction lifted.

The Government raised the defence that applicant “had not suffered any pecuniary damage or any physical or psychological consequences” [para. 36] from the advertisement in issue, and as such, the requisite level of severity to prove unjustified interference to the applicant’s right to respect for his private life had not been met. Further, even if there had been unjustified interference, the Government argued that the German legal system provided the applicant with sufficient protection by the possibility to apply for an injunction. In terms of financial (pecuniary) compensation, the Government maintained that the Federal Court of Justice had rightly concluded that the interference had not been serious enough to justify the granting of a notional licence (and thus financial compensation for that licence), and that its constitutionally-enshrined right to freedom of expression should prevail – even if such statements were made in a commercial context and for the purpose of entertainment. BAT also intervened as a third party, arguing that the Court’s case law nowhere suggested that statements made in advertisements enjoyed lesser protection than those made elsewhere, and that an entity such as itself had the right to make reference to current events or the conduct of the applicant involved in such events, much like the press is entitled to do so.

 The balance between the right to respect for private life under Article 8, and the right to freedom of expression under Article 10 of the Convention

First, the Court first recalled that the concept of a “private life” cannot be exhaustively defined. With reference to the ECtHR cases of Flinkkilä and Others v. Finland ECHR [2010] 25576/04 and Saaristo and Others v. Finland ECHR [2010] 184/06, the Court noted that it spans both the physical and the psychological integrity of an individual and “therefore can embrace multiple aspects of a person’s identity, such as the name, including the forename… [and] covers personal information which individuals can legitimately expect not to be published without their consent” [para. 44]. Conversely, citing the ECtHR cases of Intern Verlag GmbH and Klaus Beermann v. Germany [1989] 10572/83 and Neij and Sunde Kolmisoppi v. Sweden [2013] 40397/12, the Court maintained that freedom of expression applies to statements made in the commercial field, even if the aim pursued by those communications is profit-making.

The Court noted that is the wide margin of appreciation enjoyed by domestic courts in weighing the competing interests of Articles 8 and 10. Nevertheless, with reference to Von Hannover v. Germany (No. 2) [2012] 40660/08 and 60641/08 and Axel Springer AG v. Germany [2012] 39954/08, the Court reiterated the following criteria in which domestic courts should balance the competing rights of respect for private life and freedom of expression: “contribution to a  debate of general interest; how well known the person concerned is the subject of the report; the prior conduct of the person concerned; and the content, form and consequences of the publication” [para. 48].

The Court accepted that BAT’s advertisement contributed to a debate of general interest, given its context as a satirical take on contemporary events. Indeed, satire has been recognized previously in the Court as “a form of artistic expression and social commentary” [para. 49] (Alves da Silva v. Portugal [2009] 41665/07 and Eon v. France [2013] 26118/10). Importantly, given the applicant’s status as a royal figure and the fact his prior physical altercations were well known to the public, the Court stipulated that the “legitimate expectation” that the applicant could claim “protection of [his] right to respect for [his] private life in the same way as private individuals unknown to the public” had to be reduced [paras. 50-52]. As such, the advertisement’s reference to the applicant’s previous scuffles did not interfere with the applicant’s private life — rather it “merely drew attention to the existence of those incidents” which had already been commented on in the German media [para. 51].  Interestingly, the Court acknowledged that linking a public figure to a commercial product without their authorization could theoretically infringe on Article 8, particularly if that product “is not socially accepted or raises serious ethical or moral questions” [para. 54]. However, in this case, the Court noted that the satirical advertisement was framed in such a way that it could not be seen as degrading or offensive to the applicant, nor did it suggest in any way that the applicant identified with nor had any personal links to BAT or the Lucky Strike products.

Finally, the Court noted it could not review the relevant domestic law and practice that led the Federal Court of Justice to prioritize freedom of expression over the applicant’s personal rights and protection of non-pecuniary interests, simply because the former was enshrined in the German constitution and the latter was not. Rather, the Court maintained that the domestic courts had sufficiently balanced the competing rights in a way that was consistent with the criteria the Court had applied above, and in a way that took all the circumstances of the applicant’s case into consideration. On the basis of the foregoing, the Court held that the Federal Court of Justice had struck a fair balance between the competing rights, and that priority had been correctly accorded by to BAT’s right to freedom of expression.

In light of the applicant’s stature as a public figure, the humorous and non-degrading nature of the advertisement, and the wide margin of appreciation enjoyed by domestic courts in weighing competing interests, the Court held that there had been no violation of Article 8 of the Convention.

Dissenting Opinion of Judge Zupančič

In his dissent, Judge Zupančič sided with the reasoning of the lower German courts, the decisions of which the Federal Court of Justice had reversed. Although the subordination of the applicant’s personality rights to the right to freedom of expression might make sense due to the latter’s constitutional status in German domestic law, he opined that a similar hierarchy cannot stand in the international legal framework. Crucially, he found the legal distinction between pecuniary and non-pecuniary components within the applicant’s personality difficult to conceive, asking, “how can the remedy (damages for the violation of personality rights) be divorced from the right? The right and the remedy are two sides of the same coin” [p. 17]. He noted that these German provisions governing personality rights had their international counterpart in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that there can be no “a priori predominance of the freedom of expression over the personality rights protected by Article 8 of the Convention.” [p. 17] Further, Judge Zupančič stated that he found the advertisement to be mocking and understandably offensive to the applicant, with no redeeming value. Finally, he stated that tobacco advertising was not “a field in which the freedom of expression should be protected” given the present global efforts to prevent smoking [p. 17].

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