The princess and the P (P is for privacy)


Von Hannover v Germany (ECHR application number 59320/00)



When we in the UK are not going through our annual fortnight love affair with tennis and our addiction to our first love of football, for some reason we are obsessed with celebrity and royalty.


We like nothing better than to read about their private lives and to ogle pictures of them in newspapers and gossip magazines. So news of a court finding that photographs of a very public and contemporaneous princess invaded her privacy come as somewhat of a shock to avid celebrity-philes and the media alike.


Any momentary relief at learning that the decision was not in the UK but was a decision of the European Court of Human Rights against Germany over the publication of images of the Monaco princess, Caroline, should be short-lived. The tremors of any such European decision may well be felt throughout all signatory countries to the ECHR.


Princess Caroline Von Hannover is the eldest daughter of Prince Rainier III of Monaco. Over the past ten years she has brought a number of actions over the publication in Germany of photographs that she has said invaded her privacy and which, contrary to German law, infringed her right to the protection of her personality rights guaranteed under the basic law.


While the pictures - of the princess as she went about her private life - were taken in France and would have breached the stricter French privacy laws, they were published in Germany and her various actions were in the main, unsuccessful. She was successful in one landmark decision in the Constitutional Court in 1999 with the court finding that photographs of her and her children had breached her rights to a private and family life and her right to protection of her personality rights. But in the main, photographs of her in public, carrying out the normal day-to-day activities such as shopping, were not actionable.


This was on the grounds that, as a public figure 'par excellence', to prevent the publication of such photographs she would have to show that she was in a secluded place out of the public eye.


Unless she could do that, she would have to put up with what apparently was a life of constant harassment from photographers cataloguing virtually her every movement.


After numerous hearings and applications throughout the various German courts, a claim eventually came before the ECHR. The judgment was made on 24 June 2004 when the court, in summary, ruled that the German court had not provided her with sufficient protection for her private and family life guaranteed under article 8 of the convention.


'The court... considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant's private life effectively. As a figure of contemporary society "par excellence" she cannot - in the name of freedom of the press and the public interest - reply on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult).


'Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life.'


This was the majority decision of the court. The decisive factor in balancing the protection of private life against the right to freedom of expression was the contribution that the publication of the photographs made to a debate of general interest. As those photographs published did not refer to any public function but merely to her private life - albeit that she is a public figure and the public is entertained to see them - they did not contribute to any such debate.


'The court considers that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant's private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public'.


There were no special circumstances to justify the publication. While accepting that freedom of expression, guaranteed under article 10 of the convention 'constitutes one of the essential foundations of a democratic society', it did not find that the balance with the article 8 right to private life had been properly achieved by German law.



The Law Lords in Campbell - the most recent senior court decision on privacy issues in the in the UK - noted that everyone, even a public figure, is entitled to some degree of privacy.



'It is not enough to deprive Miss Campbell of her right to privacy that she is a celebrity and that her private life is newsworthy.'


The EHCR said in this case that 'anyone, even if they are known to the general public, must be able to enjoy a "legitimate expectation" of protection of and respect for their private life'.


However, it should be noted that while agreeing with the general decision, Judge Zupancic made a suggestion that may well be of assistance to media organisations finding themselves in similar arguments.


He suggested that the reasonableness of the expectation of privacy is a matter of common sense: 'He who lives in a glass house,' he warned, 'may not have the right to throw stones.'


While the debate in the UK of a statutory privacy law continues to gather force, the media has to look at each one of these decisions - be they in the highest court of the UK or the ECHR - to gauge just what they can get away with.



Any slight sense of satisfaction that it is another European country found wanting this time, and not the UK - particularly in light of England's defeat by Portugal in the European football cup and little Timmy Henman's Wimbledon kicking by the Croatian Mario Ancic - should be shortlived. Every decision made in Europe is in effect a refinement and a restatement of the ECHR's stance on the parameters of convention rights and should not be ignored.


It's certainly worth our while peeping over the fence into the back gardens of our European neighbours. For while the Euro-sceptics may for the time being be keeping a European convention at bay, the ECHR, casting a judgmental eye over all signatory states, is here to stay.



By Amber Melville-Brown, David Price Solicitors & Advocates, London