The European Court of Human Rights delivered on Febraury, 7, two Grand Chamber judgments, in the cases of Axel Springer AG v. Germany (application no. 39954/08) and Von Hannover v. Germany (no. 2) (application nos. 40660/08 and 60641/08),which are both final.
In the case Axel Springer AG, the Court held, by a majority, that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. In the case Von Hannover (no. 2), the Court held, unanimously, that there had been no violation of Article 8 (right to respect for private and family life) of the Convention.
Both cases concerned the publication in the media of articles and, in the second case, of
photos depicting the private life of well-known people.
In the case Axel Springer AG, the daily newspaper Bild, which is owned by the applicant company, in 2004 published 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 supplemented by a more detailed article on another page and was illustrated by three pictures of X. It mentioned that X, who had played the role of a police superintendent in a popular TV series since 1998, had previously been given a suspended prison sentence for possession of drugs in July 2000. The newspaper published a second article in July 2005, which reported on X being convicted and fined for illegal possession of drugs after he had made a full confession. Immediately after the first article appeared, X brought injunction proceedings against Springer with the Hamburg Regional Court, which granted his request and prohibited any further publication of the article and the photos. This decision was upheld by the Court of Appeal.
In November 2005, Hamburg Regional Court prohibited any further publication of almost the entire article, on pain of penalty for non-compliance, and ordered Springer to pay an agreed penalty. The court held in particular 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. The case had not concerned a serious offence and there was no particular public interest in knowing about X’s offence. The judgment was upheld by the Hamburg Court of Appeal and, in December 2006, by the Federal Court of Justice. In another set of proceedings concerning the second article, about X’s conviction, the Hamburg Regional Court granted his application on essentially the same grounds as those set out in its judgment on the first article. The judgment was upheld by the Hamburg Court of Appeal and, in June 2007, by the Federal Court of Justice. In March 2008, the Federal Constitutional Court declined to consider constitutional appeals lodged by the applicant company against the decisions.
Subsequently, Axel Springer AG complained to the ECHR, under Article 10, about the injunction prohibiting any further publication of the articles.
In its judgement, the ECHR held that the restrictions imposed on the company had not been reasonably proportionate to the legitimate aim of protecting the actor’s private life and that there had accordingly been a violation of Article 10.
The Court based its decision on the consideration that Springer’s interest in publishing the articles was solely due precisely to the fact that it was a wellknown actor who had committed an offence – which would not have been reported on if committed by a person unknown to the public – it underlined that the actor had been arrested in public at the Munich beer festival. The actor’s expectation that his private life would be effectively protected had furthermore been reduced by the fact that he had previously revealed details about his private life in a number of interviews.
Furthermore, it noted that nothing suggested that Springer had not undertaken a balancing exercise between its interest in publishing the information and the actor’s right to respect for his private life. Given that Springer had obtained confirmation of the information conveyed by the prosecuting authorities, it did not have sufficiently strong grounds for believing that it should preserve the actor’s anonymity. It could therefore not be said to have acted in bad faith. In that context, the Court also noted that all the information revealed by Springer on the day on which the first article appeared was confirmed by the prosecutor to other magazines and to television channels. It also noted that the articles had not revealed details about the actor’s private life, but had mainly concerned the circumstances of his arrest and the outcome of the criminal proceedings against him.
In the case of Von Hannover (no. 2), Princess Caroline has been trying to prevent the publication of photos of her private life in the press since the early 1990s. Two series of photos, published in 1993 and 1997 respectively in German magazines had been the subject of three sets of proceedings before the German courts. In particular, leading judgments of the Federal Court of Justice of 1995 and of the Federal Constitutional Court of 1999 dismissed her claims. Those proceedings were the subject of the European Court of Human Rights’ judgment in Caroline von Hannover v. Germany (no. 59320/00) of 24.06.2004, in which the Court held that the court decisions had infringed Princess Caroline’s right to respect for her private life under Article 8.
Relying on that judgment, Princess Caroline and Prince Ernst August subsequently brought several sets of proceedings before the civil courts seeking an injunction against the publication of further photos, showing them during a skiing holiday and taken without their consent, which had appeared in the German magazines Frau im Spiegel and Frau Aktuell between 2002 and 2004.
The Federal Court of Justice granted Princess Caroline’s claim as regards the
publication of two of the photos in dispute in a judgment of 6 March 2007 (no. VI ZR
51/06) – stating that they did not contribute to a debate of general interest - it
dismissed her claim as regards another photo which had appeared in February 2002 in
Frau im Spiegel. Further, the Federal Constitutional Court dismissed Princess Caroline’s constitutional complaint, rejecting in particular the allegation that the German courts had disregarded or taken insufficient account of the Court’s case-law. On 16 June 2008, the Federal Constitutional Court declined, without giving reasons, to consider further constitutional complaints brought by the applicants concerning the same photo and a similar photo published in Frau aktuell.
The ECHR held that the German courts had carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they had explicitly taken into account the Court’s case law, including its 2004 judgment in Caroline von Hannover v. Germany. There had accordingly been no violation of Article 8.
The Court helda that the fact that the German Federal Court of Justice had assessed the information value of the photo in question – the only one against which it had not granted an injunction – in the light of the article that was published together with it could not be criticised under the Convention. The Court could accept that the photo, in the context of the article, did at least to some degree contribute to a debate of general interest. The German courts’ characterisation of Prince Rainier’s illness as an event of contemporary society could not be considered unreasonable. It was worth underlining that the German courts had granted the injunction prohibiting the publication of two other photos showing the applicants in similar circumstances, precisely on the grounds that they were being published for entertainment purposes alone.
Furthermore, irrespective of the question to what extent Caroline von Hannover assumed official functions on behalf of the Principality of Monaco, it could not be claimed that the applicants, who were undeniably very well known, were ordinary private individuals. They had to be regarded as public figures. The German courts had concluded that the applicants had not provided any evidence that the photos had been taken in a climate of general harassment, as they had alleged, or that they had been taken secretly. In the circumstances of the case, the question as to how the pictures had been taken had required no more detailed examination by the courts, as the applicants had not put forward any relevant arguments in that regard.
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