Princess Caroline Takes Another Privacy Case to the ECHR
The struggle of Princess Caroline of Monaco against the
paparazzi chasing her led to the most important portrait right case
in Europe. Caroline lodged a complaint against the State of
Germany, which in her view did not enough to protect her privacy.
Anodyne photographs were constantly appearing in German magazines,
showing her on private occasions (but in public), with headlines
like “Caroline …. a woman returning to life” and “Out and about
with Princess Caroline in Paris”.
In the well-known
Caroline judgment (I) of 24 June 2004, the
European Court of Human Rights (“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 used to prevent each and every
publication of photographs of famous Dutch people that did not
serve the public interest. For example, the Associated Press news
agency got
a rap on the knuckles for distributing
rather innocent photographs of Maxima and Willem-Alexander and
their family, taken on their skiing holiday in Argentina. The
publication of these photographs was said not to serve the
public interest.
What seems to be overlooked is that in the Princess Caroline
judgment the ECHR took into account the special position that the
Princess of Monaco occupied. Caroline was really being harassed all
the time. Caroline’s counsel referred in his plea to the death of
Lady Di, six years earlier. Would Caroline have to suffer the same
fate? These circumstances contributed to the ruling against the
State of Germany. It is questionable, however, whether the
distinction made by the ECHR is capable of being applied in just
any case. That might well mark the end of the entire entertainment
press, which in my opinion cannot have been the ECHR's
intention. Signals in case law have been and are pointing in that
direction, however.
This situation may now be about to change. Caroline has brought
another case against the German government, this time on grounds of
the publication of photographs in the German magazine Frau im
Spiegel of a skiing trip (isn’t that familiar?) she took with her
husband. This case was fought up to the German Federal
Constitutional Court, which made the following statements
in its ruling, putting the Caroline judgment
very much into perspective:
‘Even entertaining contributions concerning prominent
persons, for instance, are covered by the protection of freedom of
the press. … Prominent persons can also offer orientation in
shaping one’s own lifestyle, as well as fulfilling the function of
role model or showing what one does not wish to imitate … The
circle of legitimate general public interest would be prescribed
too narrowly if one were to restrict this to behaviour that is
scandalous, or morally or legally questionable.
Even the normality of everyday life, as well as conduct of
celebrities that is in no way objectionable, may be brought to the
attention of the public if this serves to form public opinion on
questions of general interest … To deny an article its role as
contributor to the formation of public opinion merely because of
its entertaining presentation, might also violate the content of
the fundamental-rights guarantee of Article 10 of the Convention.
…Even “mere entertainment” cannot per se be denied all relevance in
the formation of opinions. … In recent times the significance of
visual portrayals for press reporting has in fact
increased.’
Caroline went
back to the ECHR (presentation of the facts
by the ECHR in French). On 13 October the Grand Chamber of the
ECHR had its first session in this case, which it is hearing
jointly with a similar case
brought by Axel Springer against Germany
(also available in French only). A ruling is not expected until
2011 at the earliest. Many hope that the ECHR will seize this
opportunity to reconsider the previous Caroline judgment and to
make the right to privacy of famous persons less absolute again.
This is a ruling to look forward to, not only by the tabloid
press, but also by other media bringing entertainment news – as
in fact almost all media do.