Private Photos In Press
The right to privacy and private life must often be balanced with the right to free expression. In Von Hannover v. Germany, the applicant was Princess Caroline of Monaco, who complained about the publication in a magazine of pictures of her children eating in restaurants. She was refused an injunction in the German courts.
The court indicated that although freedom of expression also extends to the publication of photos, this is an area where the protection of the rights and reputations of others takes on a particular importance. The present case does not concern the dissemination of ideas but of images containing personal and intimate information about an individual.
Furthermore, photos appearing in a tabloid press are often taken in a climate of continual harassment, which induces in the persons concerned a very strong sense of intrusion into their private lives. The court distinguished between the reporting of facts capable of contributing to debate in a democratic society relating to politicians, where the press played an important role, and reporting details of a person’s private life.
In MGM v. United Kingdom, the court held there was no violation of the protection where the domestic courts had found a breach of confidentiality regarding printed stories concerning a model, the use of drugs, d drug treatment and drug addiction. Although the drug addiction and treatment were in the public domain, additional information was an unwarranted interference with her privacy.
Hoon v. the United Kingdom 2014 (admissibility) concerned the investigation by parliamentary authorities into the applicant, a former government minister, after he had been involved in an undercover “sting” operation by a journalist posing as a prospective business associate. During the sting operation the applicant was recorded as stating that he was willing to use knowledge and contacts gained during his period as a minister and as a special advisor to the Secretary General of NATO for financial reward. Details were subsequently published by a newspaper and broadcast in a television documentary. The applicant complained in particular about the widely publicised decisions of the Commissioner against him as approved by the Standards and Privileges Committee and the House of Commons.
The Court declared the application inadmissible. As regards the applicant’s complaint under Article 8 (right to respect for private life) of the Convention, it was satisfied that the interference with the applicant’s private life, that is the damage caused to his reputation by the investigation and report, had been proportionate to the interests of the public in being aware of such proceedings and their outcome. In particular the Court noted in this case that the reduced level of legal protection of the right to reputation resulting from the rule of parliamentary immunity under British law was consistent with and reflected generally recognised rules within Contracting States, the Council of Europe and the European Union and could not in principle be regarded as a disproportionate restriction on the right to respect for private life.
In any event, the facts relative to the interference were already in the public domain as a result of the newspaper article and the television programme and the applicant could have challenged the factual allegation by bringing proceedings against the newspaper or the broadcaster. The Court also rejected the applicant’s complaint under Article 6 (right to a fair trial) of the Convention, finding that the parliamentary proceedings in question did not attract the application of the right to a fair hearing because they did not determine or give rise to a dispute as to the applicant’s civil rights.
Algirdas Butkevičius v. Lithuania 2022 concerned a telephone conversation between the applicant – who, at the time, was the Prime Minister of Lithuania – and a mayor that was secretly recorded during a pre-trial investigation into possible corruption in connection with territorial planning and was made public at a hearing of the Lithuanian Parliament’s (Seima’s) Anti-Corruption Commission.
The Court held that there had been no violation of Article 8 (right to respect for private life and correspondence) of the Convention in respect of the applicant, finding that, even if his reputation among his colleagues had been dinted by the disclosure of his telephone conversation, there were no factual grounds, let alone evidence, to indicate that it had been affected to a disproportionate degree. The Court noted in particular that the applicant had not pointed to any concrete and tangible repercussions which the media’s disclosure of the telephone conversation had had on his private life, all the more so as he had not been convicted of anything and the Chief Official Ethics Commission had established nothing untoward in the conversation. It also reiterated the importance of public scrutiny in cases of possible political corruption.
Rubio Dosamantes v. Spain 2017 The applicant, a Mexican pop singer who is very well known in Spain under the name of Paulina Rubio, complained of remarks made during various television programmes on her private life. She submitted that her reputation and private life had been harmed by these remarks.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that, having regard to the margin of appreciation afforded to the authorities when it came to weighing up the various interests, they had failed in their positive obligations to ensure the protection of the applicant’s privacy. The Court noted in particular that the applicant’s fame as a singer did not mean that her activities or conduct in her private life should be regarded as necessarily falling within the public interest. The fact that she could have benefitted from media attention did not authorise TV channels to broadcast unchecked comments about her private life.
In this judgment the Court also reiterated that certain events of private and family life were given particularly careful protection under Article 8 of the Convention, meaning that journalists had to show prudence and precaution when talking about them. Thus the spreading of unverified rumours or the limitless broadcasting of random comments on any possible aspect of a person’s daily life could not be seen as harmless. Lastly, the Court found that the national authorities should have assessed the TV programmes in question, to distinguish between and to weigh in the balance those matters which were intimately part of the applicant’s private life and those which might have had a legitimate public interest.
In Axel Springer AG v. Germany, newspapers printed details about a TV actor who played a police officer being arrested for possession of drugs. The court indicated that the following factors were important when balancing the right of privacy against the right of freedom of expression.
- prior conduct of the person concerned
- contribution to a debate of public interest
- how well-known the person is and the subject of the report
- content form and consequences of the publication,
- the severity of the sanction,
It was held that the injunctions against publication breached the protection. They did not make any unsubstantiated allegations and the applicant had previously released details of his life into the public sphere.
Haupt v. Austria 2017 (admissibility) In an episode of the satirical comedy show Das Letze der Woche (which aired in September 2003), the host suggested that the applicant – who was Chairperson of the Austrian Freedom Party between 2002 and 2004 and Vice Chancellor of the Federal Government between February and October 2003 – was “usually surrounded by little brown rats”. This was regarded as an allusion to neo-Nazis. Though his claim had been initially successful in 2004-5, his case was ultimately rejected after the Supreme Court re-opened proceedings in 2009. The Court declared this complaint inadmissible as being manifestly ill-founded.
The Austrian courts had struck a fair balance between the applicant’s right to protection of reputation and ATV’s right to freedom of expression. In particular, the Court noted that the reference to “brown rats” around the applicant had not been a personal criticism of him. Instead, it had been a political criticism of his attitude towards other members of his party. This satirical value judgment had had a sufficient factual basis, given the various problematic statements made by politicians of the Austrian Freedom Party which had been recorded by the Austrian courts.
The courts had further not provided a sufficient explanation in the context of the case for their justification for finding that the word “rapist” could be used as a value judgment. The Court also underlined that Article 8 of the Convention had to be interpreted to mean that even public persons who had begun a heated debate did not have to tolerate being accused of violent criminal acts without such statements being supported by facts.
Văcean v. Romania 2021 The applicant, a music professor, complained of a breach of his right to reputation on account of the publication in 2011, on a number of newspapers’ websites, of an interview with video and several articles alleging that he had committed a theft in 2008. The material in question was circulating on the Internet at a time when the applicant was due to be appointed as director of the Philharmonic Orchestra, having obtained first place in the competitive examination. The police subsequently confirmed to the municipal authorities that the applicant had not been investigated for theft, and he was appointed as director of the orchestra. The applicant alleged that the national authorities had failed in their obligation to protect his right to respect for his private life.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the national authorities had failed in their positive obligations under that provision. It noted, In particular, that the County Court, which had dismissed the applicant’s action in full, had not adequately examined either whether the interview and the articles complained of made a genuine contribution to a debate of public interest, or the issue of the nature of the remarks made during the interview.
In the Court’s view, the County Court had not weighed the journalists’ right to freedom of expression against the applicant’s right to respect for his reputation in accordance with the criteria set forth in the Court’s case-law. It noted, among other points, that the articles in question had been intended to convey an unequivocal message to the public, namely that the applicant, future director of a public institution, had been or should have been the subject of a criminal investigation for theft. In such circumstances the County Court should have sought to ascertain whether the articles had had an objective and sufficient factual basis.
Investigation & Acquittal
Egill Einarsson v. Iceland 2017 concerned the complaint by a well-known blogger about a Supreme Court ruling, which found that he had not been defamed by the words “Fuck you rapist bastard” used in an Instagram post about him. Prosecutors had just before dismissed rape and sexual offence accusations against him. The applicant complained that the Supreme Court judgment meant that he could be called a rapist without being charged or convicted of such a crime and without being able to defend himself.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention finding that, overall, the domestic courts had not struck a fair balance between the applicant’s right to respect for his private life under Article 8 and the right to freedom of expression under Article 10 (freedom of expression) of the Convention of the person who had posted the remark. It considered in particular that the domestic courts had not taken sufficient account of the fact that the remarks, notably the word “rapist”, had been posted just a week after prosecutors had discontinued sexual offence proceedings against the applicant.
McCann and Healy v. Portugal 2022 concerned statements made by a former detective inspector – in a book, a documentary and a newspaper interview – about the applicants’ alleged involvement in the disappearance of their daughter, Madeleine McCann, who went missing on 3 May 2007 in southern Portugal. Before the Court, the applicants alleged that there had been a violation of their right to reputation and to their right to be presumed innocent.
The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, finding that it could not be stated that the national authorities had failed in their positive obligation to protect the applicants’ right to respect for their private life. It considered in particular that, even assuming that the applicants’ reputation had been damaged, this was not on account of the argument put forward by the book’s author but rather as a result of the suspicions expressed against them, which had led to their being placed under investigation in the course of the criminal investigation (the prosecutor’s office decided to take no further action in July 2008) and had led to intense media attention and much controversy. The information had thus been brought to the public’s attention in some detail even before the investigation file was made available to the media and the book in question was published.
In Mosley v UK the applicant complained of the insufficiency of UK court procedures for prior restraint by way of injunction of the publication of materials claimed to violate the guarantee of protection for private life. There was no legal obligation on a tabloid newspaper to go prone notice of publication of material. The court considered in view of the right of freedom of expression that such a requirement would be unduly onerous on the press and disrupt political and investigative journalism. In particular circumstances there was held to be some element of public interest in the story
Mas Gavarró v. Spain 2022 (admissibility) e concerned the publication of a number of articles in the daily newspaper El Mundo which according to the applicant, who was President of the Government of the Autonomous Community of Catalonia (Generalitat de Catalunya) from December 2010 to January 2016, had damaged his reputation. The applicant complained in particular of the inaction of the police, the prosecution service and the domestic courts in failing to investigate the alleged interference with his right to the protection of his personal reputation.
The Court declared the application inadmissible, as being manifestly ill-founded, finding that the applicant had failed to show that the State had offered him insufficient protection and that there had been an infringement of his right to respect for his reputation. It noted in particular that, as the Spanish Government had pointed out, the applicant could have brought an action for the publication of a correction in the newspaper within three days, or could have initiated the special procedure for the protection of the right to one’s honour in order to obtain redress for the alleged damage to his reputation.
However, by choosing only to use the criminal-law avenue, the applicant had deprived himself of the possibility of securing redress for the alleged infringement of his rights through the civil procedure available to him. He had thus limited the scope of the examination by the domestic courts, which had been able only to rule on the lack of gravity of the alleged damage for the purposes of the criminal law