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Council of Europe: Public Persons and the Right to Privacy

(Feb. 13, 2012) On February 7, 2012, the European Court of Human Rights (ECHR) rendered a judgment in a case involving the right to privacy of public individuals and limitations on such a right. (Axel Springer Ag. v. Germany, ECHR, Grand Chamber (Feb. 7, 2012).)


The case involved a German publishing company's disclosure in 2003 in its daily newspaper that a famous television actor had been convicted of unlawful possession of drugs. In 2004, the newspaper printed an article, with pictures of the actor, about his arrest on possession of cocaine at a beer festival. A subsequent article, published in 2005, reported that the actor had admitted in court to having taken cocaine and was being fined €18,000 (about US$23,700). The Hamburg Regional Court confirmed an injunction, requested by the actor, against any further publication of both articles. The newspaper was ordered to pay a financial penalty plus interest for violating the actor's personality rights as protected by the German Civil Code. The company's appeal of the injunction against publication of the articles was dismissed by the Hamburg Court of Appeals. The Appeals Court, upon balancing the conflicting interests involved – that is, the right to privacy of public persons versus the right of the public to be informed – held that the interest of the public was not sufficient to justify interference in the actor's right to decide which information to reveal to the public. The German Federal Constitutional Court declined to decide the case, without stating the reasons for its decision. (Id).

Proceedings Before the ECHR

In the case brought before the ECHR, the publishing company Axel Springer (the applicant) complained that the injunctions imposed on it violated its right to freedom of expression, which includes the freedom to hold opinions and to impart information on a criminal conviction of a well-known actor. The right to freedom of expression is guaranteed in article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Text of Convention, Council of Europe website (last visited Feb. 13, 2012) ). Germany argued that the interference in the applicant's right to freedom of expression was prescribed by law and pursued a legitimate aim, the protection of the privacy of a person, which has been recognized in other judgments of the ECHR. (Axel Springer Ag. v Germany, supra.)

The ECHR, in applying article 10, examined whether the interference was prescribed by law, had a legitimate aim, and was “necessary in a democratic society.” The ECHR acknowledged that both parties agreed that the interference was prescribed by law in Germany and that it pursued the legitimate objective of protecting the reputation and the private life of an individual. The contentious issue was whether the interference was “necessary in a democratic society.” (Id.)

The ECHR emphasized the vital role of the press in a democracy in receiving and imparting information and ideas to the public; it also recognized a corresponding right of the public to receive such information. The ECHR stated that freedom of expression is not an unrestricted right, rather it carries certain duties and responsibilities, including the obligation to respect the reputations of others as part of the right of respect of the private lives of others, as guaranteed by article 8 of the European Convention. The right to private life comes into play when an attack on the reputation of an individual is sufficiently serious to affect negatively the enjoyment of the respect for one's own private life. The ECHR reiterated previous case law, in which it held that the right to privacy cannot be invoked about loss of reputation “which is the foreseeable consequence of one's own actions,” for instance, the commission of a criminal offense. (Id).

In balancing the right to freedom of expression against the right to respect for private life, the ECHR applied the following criteria, as established by its case law:

(a) contribution of the article and photograph to a debate of general interest;

(b) the notoriety of the individual involved and the subject of the article/and or photo;

(c) prior conduct of the individual;

(d) means of obtaining the information and its veracity; and

(e) the severity of sanctions imposed. (Id.)

The ECHR deemed that the articles on the actor's criminal conviction were based on public records that were of general interest. As far as the popularity of the actor, the Court noted that he was a well-known television personality. The ECHR also pointed out that because the individual concerned had disclosed details of his life, he should have expected that his right to respect for his private life would be limited. (Id.) In regard to the method by which the newspaper had obtained its information, the ECHR noted that the article was published after the public prosecutor had revealed the identity of the actor and the facts that led to his arrest. Finally, the Court observed that the first news article published described the actor's arrest and the seriousness of the offense as elaborated by a law expert, while the second article stated the sentence imposed at the end of a public hearing. Consequently, the ECHR concluded that the articles had not revealed details about the actor's private life. Finally, the Court held that the sanctions were lenient, but they were capable “of having a chilling effect on the applicant company.” (Id.)

Based on all of the above factors, the Court concluded that the interference was not necessary in a democratic society, and hence there was a violation of article 10 of the European Convention. It awarded the applicant company €27,734 (about US$36,600) in pecuniary damages and costs and expenses. (Id.)