Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
Closed Mixed Outcome
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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 are members of the Monaco royal family. The Respondent is Germany. Two third-party German magazines, Frau im Spiegel and Frau Aktuell, provided the circumstances that gave rise to the controversy.
From 2002 to 2004, the German magazines, Frau im Spiegel and Frau Aktuell, published a series of photographs showing the Applicants, Princess Caroline of Monaco and her husband, on holidays. In one of the photographs, Princess Caroline’s father appeared, and the accompanying article commented on his apparent ill health.
Princess Caroline sought and obtained injunctions against further publication of some of the photographs as a result of the original Von Hannover case decided by the European Court of Human Rights (“ECtHR”) in 2005. After the success of that ruling, the Princess sought several other injunctions against publication, including the injunction in the present case.
The German courts in this case found that two of the three photographs in question violated Princess Caroline’s right to privacy as enshrined in Article 8 of the European Convention on Human Rights (“ECHR”). The third, however, which depicted the poor health of the Princess’s father, involved a matter of public concern, i.e. the father’s (the Prince’s) health. The photograph in question therefore had a sufficiently close link with the event described in the article. Thus, the claim against Frau im Spiegel failed.
The applicants’ separate claim for an injunction against Frau Aktuell failed on similar grounds before the Federal Court of Justice on March 6, 2007. The applicants applied to the ECtHR alleging a breach of their Article 8 rights.
In reaching its decision, the ECtHR followed the 5-point analysis it set out in the original Von Hannover case in 2005. This test required the evaluation of the publication according to five criteria: (1) whether the information contributes to a debate of general interest; (2) the notoriety of the person or people concerned; (3) the prior conduct of the person concerned; (4) the content, form, and consequences of the publication; (5) the circumstances in which the photos were taken.
First, the ECtHR found that, although the photos involved a public figure, the content of the articles did not reflect the content of the photographs. Thus, while the content of the articles contributed to a matter of public interest, the content of two of the three photographs in the article did not, and accordingly, the domestic courts did not err in suppressing further publication of those two photographs.
Second, the ECtHR found that, given the political position of the individuals concerned, they were undoubtedly public figures. Thus, the domestic courts did not err in this finding.
Third, the ECtHR found that, although the applicants had cooperated with the press in the past, this mere fact was not sufficient to demonstrate consent for publication of the photographs in question.
Fourth, the ECtHR found that, in and of themselves, the photographs were not offensive in nature.
Finally, the ECtHR found that the domestic courts did not err in their application of the German law on the circumstances constituting harassment or other illegal circumstances under which a photograph may be taken. Thus, the domestic courts did not err in this part of their decision.
In sum, the ECtHR found no fault with the German courts’ application of the requirements set out by the previous Von Hannover case. Accordingly, the ECtHR unanimously found no violation of the Article 8 right to privacy as articulated in 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.