Von Hannover v Germany (No. 2)  ECHR 228 (7 February 2012) Summary
This case is an application to the European Court of Human Rights by Princess Caroline of Monaco and her husband, Prince Ernst August von Hannover, following the refusal by German courts to prohibit further publication of photos taken of them while on holiday. The Court’s task was to determine whether the manner in which the relevant domestic laws were applied to the applicants infringed their right to respect for their private and family life (guaranteed under article 8 of the Convention). This required an examination of the balance struck between the right to privacy and the right to freedom of expression (guaranteed under article 10).
During the 1990s Princess Caroline initiated three sets of proceedings in the German courts to prevent publication by the German press of photos depicting her private life. She was unsuccessful and ultimately made a complaint to the Court. In the Von Hannover v Germany judgment of June 2004, the Court looked closely at the domestic courts’ interpretation of the relevant legislation, and particularly the Copyright (Arts Domain) Act, which provided that consent is a necessary precondition to dissemination of a photo except if it is an image from contemporary society which does not interfere with a legitimate interest of the person photographed. The Court determined that this law ought to have been interpreted more narrowly to ensure that the State complied with its positive obligation under the Convention to protect private life. The Court did not agree that the applicant, simply because she is a member of the royal Monegasque family, should be described as a “figure of contemporary society par excellence”, being a definition which affords a person very limited protection of their private life and is more appropriately used to describe politicians exercising official functions.
In this case, relying on the Court’s decision in Von Hannover v Germany, the applicants sought an injunction against publication of photos that had already appeared in some magazines. The photos contained images of the applicants when they were on a skiing holiday and accompanied articles generally concerning the Princess’s relationship with her father, the late Prince Rainier, and his ill health at the time.
The Federal Court of Justice and the Federal Constitutional Court held that a concept of “graduated protection” had developed in domestic case law following the Von Hannover v Germany decision, according to which it became necessary to take into account the public’s interest in being informed and of the freedom of the press. The fact that the Princess was well known to the public, and the fact that she had not been in a secluded place out of the public eye when the photos were taken, was insufficient to deprive her of her private sphere. The content of the articles accompanying the photos and the extent to which publication contributed to a public debate were relevant factors to be taken into account: the greater the information value, the more the right to protection had to give way. The applicants argued that these domestic judgments in effect circumvented the Von Hannover v Germany decision.
The European Court of Human Rights determined that the national courts had not failed to comply with their positive obligations under article 8, having properly balanced the publishers’ rights to freedom of expression against the applicants’ rights to privacy. The Court reiterated that the concept of private life extends to “aspects relating to personal identity, such as a person’s name, photo, or physical or moral integrity”. It was held that there were no particular circumstances justifying an injunction as the photos had not been taken in “unfavourable circumstances” and were not offensive in themselves.
The Court found that, in balancing the competing interests in issue, the following criteria laid down in the domestic case law were relevant:
- contribution made by the photos and articles to debate of general interest;
- the role or function of the person concerned and the subject of the report;
- prior conduct of the person concerned;
- content, form and consequences of the publication; and
- circumstances in which the photos were taken.
The Court also observed that the new concept of graduated protection explicitly took account of the Court’s own case law.
Relevance to Victorian Charter
Section 13 of the Victorian Charter protects a person’s right: (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to have his or her reputation unlawfully attacked. This broadens privacy protection in Victoria beyond that of mere information privacy. The reasoning of the ECHR may provide some guidance in approaching the application of section 13, while reminding us that our rights are not absolute.
Section 15 of the Charter guarantees the right to freedom of expression, which includes the “freedom to seek, receive and impart information and ideas of all kinds”. Subsection 15(3) specifically states that special duties and responsibilities are attached and the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons. Adequately balancing the competing rights of privacy and freedom of expression is becoming increasingly important in today’s world. The tension between the two rights is not just felt by celebrities but also the ordinary person who lives in an age where images and information can be uploaded onto the Internet and become public in the blink of an eye.
This decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2012/228.html
Isabel Waters is a Solicitor with the Mallesons Stephen Jaques Human Rights Law Group