Public image

A summer of discontent for the paparazzi beckons following Von Hannover v Germany. Jonathan Coad reports

So far it has been a bad summer for the tabloid press and particularly for the paparazzi. On 6 May the House of Lords handed down its judgment in Naomi Campbell’s case against Mirror Group Newspapers, in which the law lords declared that everyone, even public figures, are entitled to some degree of privacy. Although its decision on Campbell’s claim was only by a three-to-two majority, it concluded that the effect of the introduction of Article 8 (Respect for Private and Family Life) of the European Convention on Human Rights into the legislative framework had, in effect, imported a form of privacy law into the UK.

On 24 June the European Court of Human Rights (ECHR) added to the pain for the popular press when it handed down a judgment in Von Hannover v Germany. This might alter radically the extent to which the paparazzi and tabloid press are permitted access to the private lives of celebrities.

The applicant was Princess Caroline of Monaco, who had taken her case for protection of her privacy to the ECHR after several mainly unsuccessful applications in the German courts over a period of 10 years. The level of protection of a person’s privacy under German law lies somewhere between the modest degree afforded in the UK and the much greater degree awarded in France.

Princess Caroline took action over a series of photographs taken without her consent in France and published in Germany. The photographs were of her everyday life – picking her children up from school, playing sport, shopping at a market and so on. Under German law, Princess Caroline was deemed to be a “public figure par excellence”, and as such the public is deemed to have a legitimate interest in knowing how she behaves in public, even when she is not performing any kind of official function.

The German government claimed that the level of protection afforded to such public figures under German law was compatible with Article 8 of the European Convention on Human Rights and struck a fair balance between Article 10 (Freedom of Expression) and Article 8. However, the ECHR found unanimously that there had been an infringement of Article 8 rights and that German law did not provide adequate protection for a person’s right to private and family life.

The majority of the judges said that the question of a correct balance between Article 8 and Article 10 centres on “the contribution that the published photos and articles make to a debate of general interest”. In the case of Princess Caroline, the photographs made no such contribution as she exercised no official function and the photographs related solely to her private life.

The ECHR held that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life, even if she appears in places that cannot always be described as ‘secluded’. The court ruled that even if such an interest existed alongside the commercial interest of the magazines publishing the pictures, “these should yield to the applicant’s right to the effective protection of her private life”. The German criteria were not sufficient to ensure the effective protection of Princess Caroline’s private life and she should have a “legitimate expectation” of the protection of her private life.

The ECHR ruled that, although a balance had to be struck between the rights of privacy and freedom of expression, the publication of the photographs did not contribute to any public debate. The ECHR drew a distinction between “reporting facts… capable of contributing to a debate in a democratic society, relating to politicians and the exercise of their functions, for example, and the reporting of details of the private life of an individual who… does not exercise official functions”.

In its judgment, the court clearly set out the principle on which it was going to consider future cases. It stated: “The court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being’s personality. That protection… extends beyond the private family circle and also includes a social dimension. The court considers 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.”

The most obvious impact of this judgment is on press photography, as a clear ‘public interest’ is now required to justify a photograph of a person who neither holds public office, nor is engaged in an ‘official’ activity. The ubiquitous candid pictures of celebrities in public places reproduced daily in tabloid newspapers or glossy magazines are no longer justifiable, so prominent individuals have at least some privacy rights, even in public places.

An important impact of the ECHR judgment is that it makes the test in the Press Complaints Commission (PCC) Code, which judges the legitimacy of unauthorised photographs according to the location they were taken in, obsolete. The test was whether, at the place that the photograph was taken, an individual had “a reasonable expectation to privacy”. The code is now clearly out of step with the ECHR’s authoritative interpretation of an individual’s Article 8 rights – it will have to be amended or the PCC’s adjudications will be seen as a less attractive option than court for a disgruntled individual with a privacy complaint.

Failure by the UK courts and the PCC to protect individuals against publication of pictures, and by extension stories, merely for ‘entertainment purposes’, where there is no public interest, will be a breach of Article 8. This case is a strong warning both to the PCC and to the UK courts that they have a positive obligation to protect the privacy rights of individuals, thereby inevitably curtailing, to some degree, the freedom of the press. The case also creates a dilemma for the PCC as to whether its code will reflect both the rights accorded by Article 8, and the extent of those rights as determined in this case by the ECHR.

Jonathan Coad is a media litigation partner at the Simkins Partnership