If you are a public figure and a celebrity, how much privacy can you expect? How far can a journalist probe into a celebrity’s private life to get news in order to fulfill ‘the right to know’ factor for the public interest? In recent years the balance between the media’s right to expression and an individual’s right to privacy has always been tricky and has therefore given rise to much debate. This blog will discuss two judgments of the European Court of Human Rights (ECHR) on Februari 7th 2012.
There could be a number of specific reasons why the media has the right to probe the private lives of public figures. Where a person's character is an essential part of performing their public role, the public has the right to know any facts which reveal special aspects of their character, especially faults. However, there is a dividing line between those things which the public has a right to know and those which individuals have a right to keep private, no matter how interesting they might be to other people. If a public figure's strange behaviour in the privacy of his own home has no possible effect on his public role, the media cannot claim they have a duty to report it. They would simply be invading the person's privacy. In recent years the balance between the media’s right to expression and an individual’s right to privacy has always been tricky and has therefore given rise to much debate. On February 7th 2012, the European Court of Human Rights (ECHR) has delivered two final Grand Chamber judgments, concerning the right of the media to report on celebrities and limiting celebrities' right to privacy for publication in the media.
Case Axel Springer AG v. Germany
The applicant company, Springer published in the Bild (a national daily newspaper), a front-page article about X, a well-known television actor, being arrested in a tent at the Munich beer festival for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted the actor an injunction to prohibit the publication of the article and the photos in the newspaper. Springer did not challenge the judgment concerning the photos. The Bild published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession. The German courts held that the right to protection of X.’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. Springer complained that the injunction preventing it from publishing the articles was a breach of its Article 10 of the European Convention on Human Rights.
The ECHR examined whether a German actor's right to privacy was violated when a paper published a newspaper article and photos of his arrest for illegal drug possession at a public festival. The Strasbourg Court held, by a majority, decided that there had been, a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The court looked at six factors in considering whether the sanctions imposed by the German court had been justified under Article 10(2): the contribution of the article to a debate of general interest, how well known the actor was, his prior conduct in relation to the media, the method of obtaining the information and its veracity, the content form and consequences of the articles and the severity of the sanctions. The Court decided that there was a degree of public interest. The actor was sufficiently well known to qualify as a public figure, which gives the public a greater interest in being informed about his arrest and the proceedings against him. The actor had a decreased expectation of privacy due to the fact that his arrest occurred at a public event and because he previously actively released details of his private life through the media. Thus the Court concluded that the publication of the article had not had serious consequences for the actor.
Case Von Hannover v. Germany (no. 2)
Princess Caroline has always been trying to prevent the publication of photos of her private life in the press.
The first Hannover case in 24 June 2004 concerned photos of the Princess in public places showing scenes from her daily life. The German courts had found that Princess Caroline was undeniably a contemporary “public figure par excellence”, and therefore had to tolerate the publication of such photographs even when they were not related to her official duties. But the ECHR found that the photos and articles had not made a contribution to a debate of general interest, and that the means of taking the photos were harassing and involved a strong sense of intrusion into private life. Moreover, the Court concluded that the criteria that had been established by the domestic courts to distinguish a figure of contemporary society “par excellence” from “a relatively public figure” were not sufficient to ensure the effective protection of Princess private life.
The second Hannover case revolved around a photo of the Princess and her husband taking a walk on their skiing holiday in St. Moritz, the Swiss luxury ski resort, accompanied by an article discussing the poor health of her father Prince Rainier. Relying on the first Hannover case, the Princess and her husband had sought an injunction in the German courts against the publication of further photos. While providing an injunction against the publication of the further disputed photos, the German courts found the publication of this particular one, in the context of the deteriorating health of the Prince, to be of public interest.
The Princess and her husband complained that the refusal by the German courts to grant an injunction against any further publication of the photo had violated their right to respect for their private life under Article 8 of the European Convention of Human Rights. This time the ECHR agreed with the German courts and accepted the position that the publication was justified by the public interest. It reiterated the general principles and its previous case law concerning private life and freedom of expression, including its judgment in the earlier Hannover case. It also relied heavily on the decision of the German Federal Court of Justice, and emphasized member states’ broad margin of appreciation in matters like this.
In light of these factors, the ECHR derived five criteria for balancing private life and freedom of expression in its landmark decision:
1. There needs to be consideration of the degree to which the publication (be it a photo or an article) contributes to a debate of general interest, which is to be judged on a case-by-case basis.
2. The status of the person concerned as a private individual or a public figure is also determinative, since reporting on details of the lives of private individuals is less likely to contribute to “a debate in a democratic society,” and thus, the press’ role as a “public watchdog” also diminishes in this case. Even though in certain cases the public has the right to be informed of “aspects of the private life of public figures,” the reason for this must be more than mere “public curiosity.”
3. Prior conduct of the person with the press needs to be taken into account.
4. The way of publication of the photo or report as well as the manner of representation of the person concerned need to form part of the consideration.
5. Whether the photo was taken with the consent of the persons concerned or was done “without their knowledge or by subterfuge or other illicit means” is to be weighed.
As well in the Axel Springer case as the Von Hannover 2 case, the EHCR acknowledged the need to balance the right to privacy against the right of the media to freedom of expression, but also indicated that privacy rights are diminished when individuals can be considered public figures. This judgment provides some useful guidance concerning balancing Articles 8 and 10 where photographs are published but recognizes that the way in which those criteria are applied will vary between member states. Although recognizing the importance of protecting one’s image, the Court was very reluctant to impose a one-size-fits-all standard for Europe. It goes some way towards indicating what will and will not be a matter of general interest and indicates that matters related to the personal affairs of public individuals are unlikely to fall into that category.
In the Netherlands the Dutch media is bound by a 2005 "Media code" enforced by the government to leave the royals alone except during "media moments" organized by the Government Information Service (GIS) or on official functions. This Media code was inspired on the judgment by the ECHR in the first Hannover case. In this case the ECHR made a distinction between reporting facts capable of contributing to a public or political debate of general interest, and reporting details of the private life of an individual who does not exercise official functions. This distinction was later not only used to prevent each and every publication of photographs of famous Dutch people that did not serve the public interest but also for the Dutch Royal Family.
The Media Code stipulates, amongst others:
1. The GIS takes care of the organization, announcement and possible pooling arrangements for the benefit of
media moments. (...)
3. The privacy of members of the Royal House is respected, that is to say that they may rely on being left in
peace at those moments at which they do not come forward in their official functions. Consequently, this also
applies to the under-aged members of the Royal House (...).
Not complying to this Media Code will mean exclusion from these special media moments of the Royal family.
The question is if the Von Hannover II case has any consequences for the Dutch Media code? The main difference between the two Von Hannover cases is that in the second case, the need to report of celebrities private lives for public interest purposes is stretched and therefore more acceptable. But even if the Media Code is not conform with European law, it still could have the status of a ‘gentleman agreement’ between the Government Information Service and the media. In exchange of special media moments, the media should further respect the privacy of the Dutch Royal Family.