Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
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The European Court of Human Rights (“ECtHR”) found that two photographs depicting a royal family on holiday and published in two German newspapers violated the right to privacy pursuant to Article 8 of the European Convention on Human Rights (“ECHR”) because they did not reflect any matter of public interest detailed in the accompanying text. However, a third photograph depicted a Prince in poor health, and since the health of the Prince was a matter of public concern the ECtHR found no violation of Article 8. In reaching its ruling the ECtHR set out the criteria which domestic courts should follow when balancing the right to privacy pursuant to Article 8 against the right to freedom of expression under Article 10. Firstly, whether the information contributes to a debate of general interest; second, how well known is the person concerned and the subject matter of the report; thirdly, the prior conduct of the person concerned; fourthly, content, form and consequences of the publication; and fifth, the circumstances in which the photos were taken.
The applicants in this case, Princess Caroline von Hannover, daughter of the late Prince Rainier III of Monaco, and her husband Prince Ernst August von Hannover, are members of the Monaco royal family. Between 2002 to 2004, the German magazines, Frau im Spiegel and Frau Aktuell, published a series of photographs showing the applicants on a skiing holiday without their consent. In one of the photographs, Princess Caroline’s father appeared, and the accompanying article commented on his apparent ill health. In fact, Princess Caroline had previously initiated three sets of proceedings with respect to two series of photos, published in 1993 and 1997 respectively in those German magazines, which had led to judgments of the Federal Court of Justice of 1995 and of the Federal Constitutional Court of 1999 dismissing her claims. In 2004, such proceedings were subject to the ECtHR decision in Caroline von Hannover v. Germany (no. 59320/00) (“Von Hannover I“) in which the Court held that the aforementioned court decisions had infringed her right to respect for her private life under Article 8.
As a result of the original Von Hannover I, in 2005, Princess Caroline and Prince Ernst August had sought and obtained injunctions against further publication of some of the photographs. After the success of that ruling, the Princess sought several other injunctions against publication, including the injunction in the present case.
With respect to these injunctions, in a judgment of 6 March 2007 (no. VI ZR 51/06), the Federal Court of Justice found that two of the three photographs in question violated Princess Caroline’s right to privacy as enshrined in Article 8 of the ECHR. In relation to the third photograph, however, which depicted the poor health of the reigning Prince Rainier of Monaco, the Court found that this was a matter of public interest and that the press was entitled to report on the manner in which his children reconciled their obligations of family solidarity with the legitimate needs of their private life, among which was the desire to go on holiday. The photograph in question, therefore, had a sufficiently close link with the event described in the article. On this basis, by a judgment of June 16, 2008, the Federal Constitutional Court rejected the claim against Frau im Spiegel. The applicants’ separate claim for an injunction against Frau Aktuell failed on similar grounds before the Federal Court of Justice. Subsequently, they applied to the ECtHR alleging a breach of their Article 8 rights.
The Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered the judgment of the Court. The underlying issue in the case was whether the refusal by the German courts to grant an injunction against any further publication of the photographs infringed the spplicants’ right to respect for their private life under Article 8 of the ECHR. The ECtHR also discussed how the balancing needs to be undertaken in cases where eminent public figures are involved and the press publishes photos of them, by distinguishing this class of cases from the cases involving any general member of the public.
While discussing the scope and nature of Article 8 of ECHR, the Court noted that private life should be understood to include aspects of a person’s personal identity (Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; Von Hannover v. Germany, no. 59320/00, §§ 50 and 53, ECHR 2004-VI; Sciacca, § 29; and Petrina v. Romania, no. 78060/01, § 27, 14 October 2008), such as a person’s name, photo or physical and moral integrity. The publication of photos of an individual may, therefore, lead to intruding the personal space of an individual. The individual should be able to control the use of photo, including the right to refuse its publication (Reklos and Davourlis v. Greece, § 40). The State has both positive and negative obligations under Article 8 to secure respect for private life and to safeguard individuals against arbitrary interferences into it (X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, and Armonienė, § 36).
At the same time, it also observed that Article 10 of the ECHR guaranteed right to freedom of expression and formed an essential part of the democratic society, which requires publication of the information to have an informed citizenry. It, therefore, may include information which may tend to offend, shock or disturb. Importantly, the Court declared that any constraints that may be placed upon it should be construed narrowly and its need should be established convincingly (Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Editions Plon v. France, no. 58148/00, § 42, ECHR 2004-IV; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-IV).
Based on the above, ECtHR concluded that the press, as the public watchdog, had the duty to disseminate information and ideas on all matters of public interest and the public had the right to receive them (Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004-XI). The freedom of expression includes the publication of photos (Österreichischer Rundfunk v. Austria (dec.), no. 57597/00, 25 May 2004, and Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, §§ 29 and 40, 14 December 2006). However, this should not be done to satisfy public curiosity regarding a person’s private life; nor should the photo be taken in a climate of continued harassment (Société Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003, and Hachette Filipacchi Associés (ICI PARIS), § 40).
Notably, the ECtHR drew a balance between the rights available under Article 8 and Article 10 of the ECHR, holding that both rights deserved equal respect (Hachette Filipacchi Associés (ICI PARIS), cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). The outcome of any conflict between these rights should, therefore, not depend on the Article under which or upon the party which brings the case. Any conflict between these rights should be resolved through an act of balancing. The margin of appreciation that the national courts undertake in resolving the conflict is subject to the review of the ECtHR to ensure that the decision undertaken is in conformity with the provision of ECHR.
In undertaking the balancing exercise, the Court, by relying on the previous case-law gave the following relevant criteria:
1. Contribution to a debate of general interest
Contribution to a debate of general interest forms an essential criterion in the balancing task (Von Hannover, § 60; Leempoel & S.A. ED. Ciné Revue, § 68; and Standard Verlags GmbH, § 46). However, the determination of such a contribution depends on the facts of the case. The Court pointed out that such an interest is not restricted to publication of political issues and crimes (White, § 29; Egeland and Hanseid v. Norway, no. 34438/04, § 58, 16 April 2009; and Leempoel & S.A. ED. Ciné Revue, § 72) but can also include sporting issues and performing artists (Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007; Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal, nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan v. Turkey, no. 44102/04, § 34, 8 June 2010), but this does include any rumours about a President or the financial hardships of a public figure (Standard Verlags GmbH, cited above, § 52, and Hachette Filipacchi Associés (ICI PARIS), cited above, § 43).
The Court held that the assessment of the informational value of the photo through the accompanying text by the domestic courts is in conformity with the ECHR. Accordingly, the photo (one among the three) and the accompanying text giving information on the reigning Prince of Monaco’s illness can be said to be an event of contemporary society adding to the debate of a general interest.
2. How well known is the person concerned and what is the subject of the report?
Under this criterion, the Court discusses the role or the function carried out by the person concerned whose photo(s) has been published and the nature of the activities captured by the photo(s) in question. The Court differentiated between private individual, unknown to the public, and well-known public figures. While the former can claim particular protection of their private life, the same cannot be assured in case of the latter (Minelli v. Switzerland). However, public figures need to be protected against publication of details of their private life where there is no public interest involved but merely to satisfy public curiosity (Von Hannover, § 63, and Standard Verlags GmbH, § 47). Such cases require that the right to freedom of expression is given a narrower interpretation.
The Court observed that the applicants, irrespective of official functions held by them in the Principality of Monaco, are well-known public personalities and must be regarded as public figures and the domestic courts did not err in this finding. The Court by looking into the photos in question agreed with the findings of the domestic courts. One of the three photos gave information on the illness of the reigning Prince of Monaco and had picture accompanying it. It was held to be in public interest since it gave information to the public on the royal family. The other two photos which contained details of vacation of the applicants, however, did not contribute to any public debate and were published to satisfy the mere curiosity of the public or for entertainment purpose alone.
3. Prior conduct of the person concerned
The conduct of the applicants prior to the publication and whether the photos have already been published elsewhere earlier can be another factor that the courts need to undertake in the balancing act (Hachette Filipacchi Associés (ICI PARIS), §§ 52-53, and Sapan, § 34). However, the cooperation with the press on prior instances cannot be a ground for denying the party of the protections available to it (Egeland and Hanseid, § 62).
4. Content, form and consequences of the publication
Another important criterion is the way in which the photo is published and the manner in which the person is represented in such photo (Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria (no. 3), nos. 66298/01 and 15653/02, § 47, 13 December 2005; Reklos and Davourlis, § 42; and Jokitaipale and Others v. Finland, no. 43349/05, § 68, 6 April 2010). The extent of dissemination of such publication must also be accounted for by the courts (Karhuvaara and Iltalehti, § 47, and Gurguenidze, § 55).
5. Circumstances in which the photos were taken
The Court should look into the circumstances in which the photos were taken. The Court should also analyse whether the person concerned has given his/her consent to take the photo and its publication (Gurguenidze, § 56, and Reklos and Davourlis, § 41) or whether such photo was taken without the person’s knowledge, subterfuge or iilicit means (Hachette Filipacchi Associés (ICI PARIS), § 47, and Flinkkilä and Others v. Finland, no. 25576/04, § 81, 6 April 2010). If there has been an intrusion, the seriousness of the intrusion and the consequences of such publication need to be analysed (Egeland and Hanseid, § 61, and Timciuc, § 150).
The Court found that the circumstances under which the photos were taken were not objected to by the applicants; nor have they adduced any evidence or arguments against it. The Court also observed that, in and of themselves, the photographs were not offensive in nature to justify their prohibition.
In conclusion, the Court found that the domestic courts of Germany had carefully balanced the rights of the competing parties by adhering to the case laws. It is worth underlining that the domestic courts had granted the injunction prohibiting the publication of two other photos showing the applicants in similar circumstances, precisely on the grounds that they were being published for entertainment purposes alone. However, in regards to the third photo, while balancing the competing rights, the domestic courts gave primary importance to whether the publication in question contributed to a general interest. Thus, the Court held that, in that respect, there was no violation of Article 8 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this case, the ECtHR upheld its previous decisions linking the content of articles to the content of accompanying texts, and allowing a broad definition of “public interest” where accompanying texts concern public officials. However, the decision narrowed allowable publications of photographs by requiring that the texts linked to articles concern the events or individuals appearing in the photographs.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This decision further clarifies the ECtHR’s previous holdings – including but not limited to the original Von Hannover case – concerning allowable publications of photographs depicting the private lives of public officials.
Let us know if you notice errors or if the case analysis needs revision.