27 June 2004


On Thursday, the European Court of Human Rights handed down an interesting judgment on rights of publicity and rights of privacy. Princess Caroline of Monaco objected to papparazzi taking pictures of her in her private life and then publishing them. In Von Hannover v. Germany (MS Word, 154kb), the ECHR held that under Article 8, Princess Caroline has the right to prevent publication of photographs such as those depicting her at dinner with an actor, visiting horse shows, shopping (with her bodyguard carrying the bags!), skiing, playing tennis, bicycling, and tripping over her own feet at the beach.

59. Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of "ideas", but of images containing very personal or even intimate "information" about an individual. Furthermore, photos appearing 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.

60. In the cases in which the Court has had to balance the protection of private life against the freedom of expression it has always stressed the contribution made by photos or articles in the press to a debate of general interest. The Court thus found, in one case, that the use of certain terms in relation to an individual's private life was not "justified by considerations of public concern" and that those terms did not "[bear] on a matter of general importance" and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of "major public concern" and that the published photographs "did not disclose any details of [the] private life" of the person in question and held that there had been a violation of Article 10. Similarly, in a recent case concerning the publication by President Mitterand's former private doctor of a book containing revelations about the President's state of health, the Court held that "the more time passed the more the public interest in President Mitterand's two seven-year presidential terms prevailed over the requirements of the protection of his rights with regard to medical confidentiality" and held that there had been a breach of Article 10.

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63. The Court considers that 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. While in the former case the press exercises its vital role of "watchdog" in a democracy by contributing to "impart[ing] information and ideas on matters of public interest it does not do so in the latter case.

64. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life.

Id. (citations omitted).

This would be an astounding decision under US law, but the European context almost requires it. For example, German copyright law treats photographs rather differently than textual materials; the subject of a photograph must explicitly approve dissemination of the photograph unless it depicts aus dem Bereich der Zeitgeschichte (a significant aspect of contemporary society or culture) without interfering with the subject's berechtigtes Interesse (legitimate preexisting interests). Copyright Act (Arts & Design) § 22, 23 (Germany) (trans. CEP, similar in ECHR decision).

All of this, of course, only masks the real question: What really is a matter of public interest, and who gets to determine it (and when)? Putting all of the legal provisions together, a German publication must ask a political celebrity's explicit approval for a photograph that is not clearly depicting something clearly within the official duties of that celebrity prior to publication. If the celebrity does not approve, the publication may then, and only then, balance its perception of the centrality of the photograph to the inchoate public interest with the rights of privacy granted under the Basic Law (which are far more extensive than those under US law).

The ECHR does not discuss the most obvious loophole. The German copyright statute implies that the subject's interests predate the publication, although the ECHR's translation omits the temporal qualifier. What if the photograph, by its publication, would have a tendency to alter the scope of those interests? Consider, for example, a hypothetical photograph of Tony Blair necking with Gro Harlem Brundtland (former prime minister of Norway and now Director General of WHO), taken with a 500mm telephoto lens through the window of a Frankfurt hotel room. One might look at the ECHR decision and say that this doesn't overcome either's privacy rights. What if they were in Frankfurt for a UN conference on family planning? What if Blair had just introduced the Defense of Extramarital Affairs Act in Parliament? Or, more to the point, what if he introduced the Act the week after the photograph had been (unknown to them) taken? Is a personal stake in pending legislation a significant aspect of contemporary society? In a slightly less outrageous context, consider a photograph of Prince Charles tending his polo ponies at a tournament in Hamburg. Does this potentially concern a matter of public interest because the public pays for the ponies and their upkeep through the Civil List? What about Prince William shopping for disco-wear on Berlin's Kurfürstendamm?

Perhaps more to the point, is Page Three a "significant aspect of contemporary culture"? If not, do Page Three girls have the right to block republication of photographs from the Sun in Stern?

In the end, I think the ECHR has just moved the goalposts. It used an "easy" case to make some questionable law, whether judged in the abstract or in the direct context of European law. It is extraordinarily difficult to draw a line that is clear enough between "private" and "public" interests, and the context of both seems much more important than the decision in Von Hannover contemplates.