Friday, 23 March 2012

Princess Caroline's right to privacy

Having just recorded another in my series of short lectures to accompany the London University External LLB subject guide, I have had privacy cases on my mind. In particular, the pronouncements of the European Court of Human Rights in cases brought by Princess Caroline von Hannover (formerly of Monaco) are a bit confusing.

First of all we have VON HANNOVER v. GERMANY - 59320/00 [2004] ECHR 294 (24 June 2004) (the ECHR seems to shout the names of its cases) followed a year later by VON HANNOVER v. GERMANY - 59320/00 [2005] ECHR 555 (28 July 2005). The second judgment is concerned only with the "friendly settlement" of the case which gave rise to the first judgment. Then last month along came (much quieter) Von Hannover v. Germany (no. 2) 40660/08 [2012] ECHR 228 (7 February 2012), and the court seems to have watered down its earlier judgment. It had decided that freedom of expression (Article 10) does not prevail over privacy (Article 8) unless the individual concerned held some public office. Has the complainant a reasonable expectation of privacy, assessed objectively? If they do, there can be liability for misuse of personal information.

So far, so good, and very vague. The new case arose out of the same episode, in which the Princess and her husband complained about the German courts not granting them an injunction against photographers who took pictures of them without consent. The ECHR decided that the German courts' failure had breached the princess's human rights. The new proceedings involved photographs of the couple on a skiing holiday. This time the court took the view that they had to be regarded as public figures and that provided the media struck the right balance (which it believed they had done) the right to privacy was not infringed. The earlier judgment had attracted considerable criticism from the media, and from anti-censorship groups: the new one has been received as redressing the balance. The difference lies in the fact that in the later case the photos were used in articles which discussed the behaviour of the children of the late Prince Rainier, who at the time was seriously ill, and this elevated the press coverage to a matter of public interest. That strikes me as a rather feeble excuse, but a product of modern celebrity-obsessed journalism perhaps. Were the photos in any way essential to the telling of the story? Hard to imagine that they were. The fact that the photos were all taken in public places also had a bearing on the outcome.

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