Press Freedom, Privacy, Data Protection and Retention
Sidis v. F-R Pub. Corp.
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The European Court of Human Rights (ECtHR) held that the publication by tabloid magazines of a series of photos of Princess Caroline of Monaco, taken without her knowledge and showing scenes from her daily life, violated her right to privacy and family life as enshrined in Article 8 of the European Convention on Human Rights (ECHR). The Court was presented with a conflict between the freedom of the press and the right to protect private life, particularly of public figures. The Court rejected the German Courts’ decisions, which had found that the applicant was undeniably a contemporary public figure par excellence and thus, had to tolerate the publication of such photographs even when they were not related to her official duties. The Court held that the press reporting details about the applicant’s personal life, notably as she did not exercise an official State function, did not fall under the watchdog role of the press and did not contribute to a debate of general interest.
The applicant, Caroline von Hannover, eldest daughter of Prince Rainier III of Monaco, was the president of humanitarian and cultural foundations and represented the Grimaldi family at certain events such as the Red Cross Ball. However, she did not perform any official function on behalf of the State of Monaco or its institutions.
The photos subject of the proceedings were published by the Burda publishing company in the German magazines Bunte and Freizeit Revue and by the Heinrich Bauer publishing company in the German magazine Neue Post.
The first series of photos consisted of three publications from two different magazines. In July 1993, Freizeit Revue printed five pictures that showed Princess Caroline with actor Vincent Lindon at a restaurant in France. The second and third sets of photographs were published by Bunte magazine on August 5 and August 19, 1993, correspondingly. The publications included photos of the applicant canoeing with her daughter Charlotte, dining with Vincent Lindon in a restaurant, riding a bicycle alone, shopping at the market, among others.
The second series consisted of 28 photos published in three different issues of Bunte in 1997. Among them were pictures of the applicant on a skiing holiday in Zürs and on a horse show in Saint-Rémy-de-Provence with Prince Ernst August von Hannover.
The third series of photos were published under an article entitled “Prince Ernst August played fisticuffs, and Princess Caroline fell flat on her face” on Neue Post magazine in 1997. The publication included pictures, taken from a distance, that portrayed the applicant at the exclusive Monte Carlo Beach Club, dressed in a swimsuit and wrapped up in a bathing towel, tripping over an obstacle and falling.
On August 13, 1993, the applicant sought an injunction in the Hamburg Regional Court against any further publication by the Burda publishing company of the first series of photos. The applicant claimed that her right to protection of her personality rights guaranteed by Articles 2 (1) and 1 (1) of the German Basic Law, and her right to protection of her private life and the control of the use of her image, guaranteed by sections 22 et seq. of the Copyright Act were infringed.
On February 4, 1993, the Regional Court granted the application only regarding the distribution of the magazines in France, per the rules of Private International Law in conjunction with Article 9 of the French Civil Code. However, concerning the distribution of the magazines in Germany, the Regional Court held that German Laws were applicable. Therefore, under Section 23 of the German Copyright Act, the Court held that the applicant was a figure of contemporary society par excellence, which meant she had to tolerate the publication of the photos in question without her consent. Further, the Court determined that even if the constant hounding by photographers made her daily life difficult, it arose from a legitimate desire to inform the general public. As a result, the applicant appealed against the judgment.
On December 8, 1994, the Hamburg Court of Appeal dismissed the applicant’s appeal and disregarded the injunction against subsequent publications in France. Princess Caroline appealed on points of law against the decision.
On December 19, 1995, the German Federal Court of Justice allowed the applicant’s appeal in part, granting her an injunction against any further publication of the photos in Freizeit Revue magazine specifically for the picture portraying her with Vincent Lindon in a restaurant. According to the Federal Court, even figures of contemporary society par excellence were entitled to the respect of their private life. However, they could not rely on such protection outside their home unless they had retired to a secluded place, away from the public eye where they behaved in a manner they would not behave in public. In the instant case, the Federal Court considered that the applicant as a figure of contemporary society par excellence, had to tolerate the publication of photos in which she appeared in a public place even if they illustrated scenes from her daily life.
The applicant appealed to the German Federal Constitutional Court. On December 15, 1999, the Constitutional Court partly allowed the request, against publication of the three photos featuring the applicant with her children as it infringed her right to the protection of her personality rights guaranteed by Articles 2 (1) and 1 (1) of the German Basic Law, reinforced by her right to family protection under Article 6 of the Basic Law.
Regarding the second set of photos, on May 14, 1997, the applicant reapplied to the Hamburg Regional Court, seeking an injunction preventing the republishing of the pictures on the same grounds as her 1993 claim. In a judgment of September 26, 1997, the Hamburg Regional Court rejected the application, particularly to the grounds of the Federal Court of Justice’s previous ruling. Princess Caroline appealed against the judgment. However, the Hamburg Court of Appeal dismissed the appeal for the same reasons. The applicant lodged a constitutional appeal directly with the Federal Constitutional Court, relying on her earlier submissions. On April 4, 2000, the Federal Constitutional Court refused to entertain the request and referred in particular to its judgment of December 1999.
With respect to the third series of photographs, Princess Caroline reapplied to the Hamburg Regional Court on November 5, 1997, seeking an injunction preventing the Heinrich Bauer publishing company from republishing the series on the same grounds as her previous applications. Additionally, she included, among other things, a sworn attestation by the director of the Monte Carlo Beach Club to demonstrate it was a private establishment with a high entry fee and controlled access and that journalists and photographers were debarred unless they had the express permission of the owner of the Club. Hence, according to the applicant, the fact that the photos were very blurred showed that they had been taken secretly from the window or roof of a neighboring house at a distance of several hundred meters.
On April 24, 1998, the Hamburg Regional Court rejected the application, referring to the Federal Court of Justice’s judgment of 1995. Further, the Regional Court stated that the Monte Carlo Beach Club had to be considered an open-air swimming pool open to the public, even if an entry fee was charged and access restricted. The applicant appealed against the judgment, and in October of the same year, the Court of Appeal dismissed the applicant’s appeal for the same reasons. The Court of Appeal found that a swimming pool or beach was not a secluded place and that the photos showing the applicant tripping over an obstacle and falling were not such as to denigrate or demean her in the public’s eyes.
Since the Court of Appeal failed to grant the applicant leave to appeal on points of law, Princess Caroline lodged a constitutional appeal directly to the Federal Constitutional Court, relying on her earlier submissions. As a result, on April 13, 2000, the German Federal Constitutional Court refused to entertain the appeal and again referred to its decision of 1999. Further, the Constitutional Court held that the ordinary courts had correctly found that the Monte Carlo Beach Club was not secluded. Thus, the photos of the applicant wearing a swimsuit and falling were not capable of constituting an infringement of her right to respect for her private life.
On June 6, 2000, Princess Caroline presented an application before the ECtHR against the Federal Republic of Germany on the grounds that the German court decisions had infringed her right to respect for her private and family life as guaranteed by Article 8 of the Convention.
The main issue for consideration before the ECtHR was whether the German courts had achieved a fair balance between the right to privacy of the applicant and the right to freedom of expression of the media under Article 8 and 10 of the ECHR.
The Court noted that Article 8 of the ECHR is intended to safeguard people’s undisturbed development and relationships with others. Relying on Peck v. United Kingdom, App no. 44647/98 (January 28, 2003) among other cases, the court held that “(t)here is a zone of social interaction, even in a public context, which may fall within the scope of what is considered private life” [para. 50]. The purpose of Article 8 extends beyond the State’s negative obligation to not interfere with a person’s private life and includes positive obligations such as “adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves” [para. 57]. Relying on Schüssel v. Austria, App no. 42409/98 (February 21, 2002), the court held that this extends to the protection of a person’s pictures against abuse by others.
Referring to Article 10 of the ECHR, the Court held that the press should disseminate information on matters of public interest. However, in relation to the publication of photos, the rights and reputation of others takes precedence. “Publication of photos in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution” [para. 59]. In the present case, the Court considered that the photos related exclusively to intimate details of the applicants private life. They did not contribute to public interest and were solely published to “satisfy the curiosity of a particular readership” [para. 65].
The Court cited News Verlags GmbH & Co. KG v. Austria, App no. 31457/96 (January 11, 2000) among other cases to hold that in balancing the right to a private life against freedom of expression, the contribution of the photos or articles to a debate of public interest holds relevance. “(A) fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions” [para. 63]. In the former case, the press plays the role of a watchdog.
According to the Court, in these conditions, Article 10 has to be given a narrower interpretation. The fact that the photos were taken without the applicant’s knowledge or consent is significant and could be illustrated by the photos taken of Princess Caroline at the Monte Carlo Beach Club tripping over an obstacle and falling, where it appeared that the pictures were taken secretly at a distance.
Any person, including public figures have a “legitimate expectation of protection of and respect for their private life” [para. 69]. This extends beyond the intimate family circle and includes a social dimension. The Court disagreed with the German Courts’ interpretation of the German copyright legislation to include the applicant as a person of contemporary society par excellence since she did not exercise any official functions, unlike a politician. To comply with its positive obligation to protect private life, the national legislation had to be interpreted narrowly. The distinction between figures of contemporary society ‘par excellence’ and ‘relatively’ public figures has to be clear and obvious so that individuals have precise indications of the behavior they should adopt in public. In the Court’s view, the national courts requirement of the applicant being in a secluded place out of public eye was vague and challenging for the applicant to determine in advance. Therefore merely classifying the applicant as a figure of contemporary society par excellence did not justify such an intrusion into her private life.
Moreover, the majority highlighted that the public does not hold a legitimate interest in knowing where the applicant is and how she behaves in her private life even if she appears in places that cannot always be described as secluded, and even if she was a well-known public figure.
Taking all of this into account, and despite the margin of appreciation afforded to the State, the ECtHR held that the German courts were unsuccessful in striking a fair balance between the competing interests and therefore infringed Article 8 of the ECHR.
Dissenting Opinions of Judges Barreto and Judge Zupančič:
Judge Carbajal Barreto presented a concurring vote. He disagreed that there should be a reasonable expectation of not being exposed to public view or the media. Based on the media attention the applicant garnered, he disagreed with the majority to hold that the applicant was a public figure, even though she did not perform any function on behalf of the State of Monaco. However, where a person has a “legitimate expectation of being safe from media”, the right to privacy prevails over the right to being informed [p. 31]. He concluded that apart from the photos taken at public places like Monte Carlo Club, the applicant had a reasonable expectation of privacy in relation to the other published photos.
Judge Zupančič, also presented a concurring vote. He stated that while he agreed with the outcome of the case, he suggested it would have been best to employ the test established in the case of Halford v. United Kingdom, which relies upon a “reasonable expectation of privacy.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR contracted freedom of expression, in favor of privacy. The court held that as a public watchdog, the right of the press to publish information is limited to information of public interest. Any information or photos that do not contribute to any debate of general public interest are not protected by Article 10. Under Article 8, everyone, including public figures, has a legitimate expectation of protection and respect for their private life. In such circumstances, according to the Court, privacy rights under Article 8 will outweigh those of the press under Article 10 of the ECHR.
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