Examination No: 1000366

The European Court of Human Rights has stated that media reports concerning matters of public importance are different from publications that simply involve persons in whom the public has taken an interest. How has this distinction manifested itself in the case law of the Court? Do you find the Courts approach to this issue convincing?

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Examination No: 1000366

The purpose of this paper is to examine the persuasive force of the Strasbourg Courts differing treatment of media reporting concerning matters of public importance and publications involving persons in whom the public have taken an interest. In this what will be examined are the principles expounded by the Court in drawing the distinction and, in essence, the focus will be on the Courts balancing of rights under Article 8 and Article 10 of the European Convention on Human Rights. The fundamental questions that need to be asked in this context are what is the percieved role of the media and how does the Court draw the distinction in that respect, how does the Court justify its decisions, what interpretative methodology does it employ and is this methodology persuasive? The Role of the Media From quite early in its jurisprudence the Strasbourg Court saw the role of the media in a democratic society to be that of purveyor of information and public watchdog. 1 The Court has held that whilst the press must not overstep certain bounds particularly in relation to the reputation and rights of others it is incumbent upon it to impart information and ideas on political issues just as on those in other areas of public interest. 2 Beyond this it is significant that not only do the media have a right to impart information and ideas of public interest but the public also has a right to receive them.3

But how far do the bounds of this societal, democratic, role extend and how are they demarcated? The Strasbourg Court have held the medias value hangs on what it brings to the democratic process. 4 The ability of the media to catalyse and facilitate debate is clearly at the heart of the Strasbourg Courts notion of the public interest. On the other hand, the reality is that media interests may also tend toward gossip rather than debate and their methods of investigation have been known to involve harassment rather than inquiry, so when the freedom of expression becomes a vista into the private lives of citizens and the public interest is ultimately usurped by commercial concerns how then is their democratic contribution to be valued? The Distinction The answer to these questions are rooted in a vital distinction forwarded by the Strasbourg Court in its seminal judgement of Von Hannover v. Germany (No.1). The case involved Princess Caroline Von Hannover, daughter of Prince Rainier III of Monaco, who had on several occasions applied to the German courts for an injunction to prevent any further publication of photographs, taken without her consent, which showed her shopping and so on. The Strasbourg Court agreed that Germany had not awarded a sufficient level of protection to the right of privacy and, in reaching this conclusion, drew a clear distinction between matters of public importance and the private lives of persons. This distinction in effect issued a limitation on the role of the media, one which is defined to a large extent by the concept of the public interest: [A] fundamental distinction needs to be made between reporting facts even controversial ones capable of contributing to a debate in a democratic society and reporting details of the private life of

1 2

Barthold v. Germany [1985] 7 EHRR 383 at 58. See also: Financial Times v. UK [2010] 50 EHRR 46 at 59. Lingens v. Austria [1986] 8 EHRR 407 at 41. See also: Von Hannover v. Germany (No.2) [2012] 55 EHRR 15 at 102. 3 Ibid. See also: Sunday Times v. UK at 65. 4 Sunday Times v. UK (No.1) 2 EHRR 245 at 65 and Goodwin v. UK [1996] 22 EHRR 123 at 39. Harris et al at p. 465: The press and investigative journalism guarantee the healthy operation of democracy, exposing policy decisions and actions or omissions of government to close scrutiny of the public opinion, and facilitating the citizens participation in the decis ion making process ~2~

Examination No: 1000366

an individual who does not exercise official functions. While in the former case the press exercises its vital role of watchdog in a democracy by contributing to impart[ing] information and ideas on matters of public interest it does not do so in the latter case. 5 The Court continued to reason that where the sole purpose of publication is to satisfy the curiosity of a particular readership regarding the details of the applicant's private life 6 such information cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public.7 An additional factor considered by the Court was the arena in which the activities were taking place. The Court reasoned that even where the activities were not taking place in seclusion this fact alone will not be sufficient to circumvent the value requirement, particularly where the activities in question are of an exclusively private nature,8 as the public simply does not have a legitimate interest in knowing all the intimate details of a persons private life.9 In conclusion, the Court found that as the photos in question dealt exclusively with the private life of the Princess, who was at the time exercising no official function and should thus be considered, in contradistinction to the German Courts characterisation, as private individual rather than a contemporary figure par excellence.10 Ultimately, the commercial interest of the magazine in publishing the articles and the public interest in Princess Caroline herself had to yield to the applicant's right to the effective protection of her private life.11 The limits on the medias function as watchdog and the corresponding value of its publications thu s seem to be drawn in relation to the content of its reporting, specifically, whether that content of public interest. So when the Court balances freedom of expression under Article 10 and privacy under Article 8 of the European Convention on Human Rights the key question is whether the published photos or articles have value, or, in other words, can the publication contribute to a debate of general interest? 12 When the publication relates to an individual in whom the public has taken an interest the Court will assess the value of the article by asking, firstly, is this person exercising an official function, are they known to the public or are they private individuals, secondly, does the publication relate exclusively to the persons private life, thirdly, is the sole purpose to satisfy the curiosity of a particular readership, fourthly, in what arena did the events occur and, finally, do the public have a legitimate interest in knowing these details? The answers to these questions determine the value of the publication, if it can contribute to a debate of general interest and thus whether it will be afforded the robust protection of Article 10. One of the outcomes of the Courts approach in Von Hannover (No.1) is that people known to the public are clearly afforded a higher level of protection then those exercising an official function. This polarity between
5

Von Hannover v. Germany (No.1) [2005] 40 EHRR 1 at 63. See also: Mosley v. UK [2011] 53 EHRR 30 at 114 (emphasis added). 6 Von Hannover v. Germany (No.1) [2005] 40 EHRR 1 at 65. In Von Hannover v. Germany (No.2) [2012] 55 EHRR 15 at 103 the Court identified the kinds of publication in question and the disagreeable conditions under which their information is often gained. See also: Mosley v. UK [2011] 53 EHRR 30 at 114. 7 Von Hannover v. Germany (No.1) [2005] 40 EHRR 1 at 65 (emphasis added). See also: Mosley v. UK [2011] 53 EHRR 30 at 114. 8 See also: The dissent of Vadjic J. in Hachette Filipacchi Associates v. France [2009] 49 EHRR 23 at O-II12. 9 Von Hannover v. Germany (No.1) [2005] 40 EHRR 1 at 77. 10 Ibid at 72. 11 Ibid at 77. 12 Von Hannover v. Germany (No.1) [2005] 40 EHRR. 1 at 76. See also: Editions Plon v. France [2006] 42 EHRR 36 and Leempoel v. Belgium (64772/01) November 9, 2006 at 78 ~3~

Examination No: 1000366

officials on the one hand and celebrities and private individuals on the other establishes at least on a narrow reading of the case a principle whereby the privacy of celebrities is given priority over the freedom of the press and ultimately freedom of expression. Given the nature of the medias watchdog function it is easy to see why the Court has reasoned in this way, conversely however, given the centrality of the celebrity figure in contemporary society it could be argued that such special treatment is simply unwarranted. In Mosley v. UK which involved allegations that a prominent motor-racing figure was involved in a sick Nazi orgy with 5 hookers the Strasbourg Court held that press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain do not attract the robust protection of Article 10 normally afforded to the press and consequentially, in such cases, freedom of expression called for a more narrow interpretation. 13 Likewise, Harris et al proffer that those elements of the media whose goal is to satisfy the curiosity of a particular readership are primarily interested in increasing commerci al gains by satisfying their readers voyeuristic tendencies.14 Moreover, the Court went on to clarify, at least to some degree, the distinction drawn in Von Hannover (No.1) by stressing that in considering whether there was a public interest which justifies an interference with the right to respect for private life, the Courts focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it. 15 In other words, irrespective of the publics actual levels of interest, if the matter is not capable of contributing to a debate in general society it will likely have to yield to the persons right to privacy. The Courts clear distaste for voyeurism and sensationalism, in addition to its concern that the media is merely attempting to satisfy the curiosity of a particular readership, seem to imply that the distinction is subject to the surreptitious influence of two further factors: firstly, the aim of the publication is its purpose to contribute to or generate debate and, secondly, its corresponding newsworthiness is the publisher pandering to gossip and voyeurism in order to satisfy a commercial interest? The Lives of Others Thusfar the distinction between matters of public importance and people in whom the public have taken an interest is clearly not a clean one. While the Strasbourg Court holds that public personalities must be able to enjoy a legitimate expectation 16 of protection of and respect for their private lives, it has also found that there are certain special circumstances where the publics right to be informed can even extend to aspects of the private lives of public figures.17 But what are these special circumstances? As Harris et al point out: the conditions under which private aspects of public figures can be considered sufficiently related to their public function to justify their disclosure is debateable. 18

13

See: Societe Prisma Presse v. France (66910/01 and 71612/01) July 1, 2003; Von Hannover v. Germany (No.1) [2005] 40 EHRR. 1 at 66; Leempoel v Belgium (64772/01) November 9, 2006 at 77; Hachette Filipacchi Associates v. France [2009] 49 EHRR 23 at 40; and MGN Ltd v. UK [2011] 53 EHRR.5 at 143. 14 Harris, OBoyle and Warbrick at p.512. In Von Hannover v. Germany (No.2) [2012] 55 EHRR 15 at 103 the Court actually singled out the sensationalist press or romance magazines in this context. 15 Mosley v. UK [2011] 53 EHRR 30 at 114. 16 Ibid at 69. 17 Ibid at 64. See also: Von Hannover v. Germany (No.2) [2012] 55 EHRR 15 at 110 and Karhuvaara v. Finland [2004] 41 EHRR 1154 at 45. 18 Harris, OBoyle and Warbrick at p.480. ~4~

Examination No: 1000366

The first thing to note in this regard is that Strasbourg Court affords differing levels of protection to individuals in accordance with their societal role, the more prominent and public an individuals role the more media scrutiny that person will be expected to endure. In Lingens v. Austria the Court made it quite clear that the levels of scrutiny which may be legitimately visited upon public as opposed to private individuals differ greatly, in particular, where the individual knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large he must consequently display a greater degree of tolerance. 19 Similarly, in Oberschlick v. Austria the Court found that where a politician expresses himself in terms which are likely to shock many people he exposes himself to a strong reaction on the part of journalists and the public.20 The levels of scrutiny public figures are expected to endure, however, are not unlimited and the media in their role as watchdog must be cognisant of the reputation and rights of others. But how far is too far? The case of Lindon, Otchakovsky-Laurens and July v. France involved French politician Jean-Marie Le Pen, a man who had opened himself up to particularly high levels of scrutiny on account of his extremist views. 21 In this case the Court found that the publication of a fictitious depiction of Mr Le Pen which referred to him as the chief of a gang of killers and a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood had overstepped the permissible limits of tolerance, adding that the reputat ion of a politician, even a controversial one, must benefit from the protection afforded by the Convention. 22 Indeed, these principles have been held to apply to all those who voluntarily enter the public forum and include, for instance, prominent business people and those persons or associations who participate in public debate. For example, in Jerusalem v. Austria the Court found that where associations are active in a field of public concern in that case, drugs policy they ought to have shown a higher degree of tolerance to criticism 23 and in Nilsen v. Norway the Court reasoned that a prominent participant in many controversial discussions could not be regarded as a private person in the debate on police brutality. 24 On the other hand in Tammer v. Estonia the Court found that a journalists conviction for insulting the lover of the former Estonian Prime Minister in comments he had made in a newspaper interview was in accordance with Article 10 of the Convention. At the time of the interview the woman had resigned from her governmental post and was thus seen by the Court as a private person whose right to privacy under Article 8 had to be specially protected. In applying the principles of proportionality the Court reasoned that it had not been established that her private life was among the issues that affected the public and her remarks could therefore sc arcely be regarded as serving the public interest. 25

19

Lingens v. Austria [1986] 8 EHRR 407 at 41. See also: Dichand v. Austria (App. 29271/95) at 39 and Oberschlick v Austria (No. 2) [1998] 25 EHRR 357 at 41. 20 Oberschlick v Austria (No. 2) [1998] 25 EHRR 357 at 44 21 Lindon, Otchakovsky-Laurens and July v. France [2008] 46 EHRR 35 at 56. 22 Ibid at 57. In addition, the Court have also found that the rumoured marital difficulties of a president of the Republic or the financial difficulties of a famous singer could not be deemed to be matters of general interest; see: Axel Springer AG v. Germany [2012] 55 EHRR 6 at 90. See also: Standard Verlags GmbH v. Austria (No.2) (App. No. 21277/05) June 4, 2009 at 52 and Hachette Filipacchi v. France [2009] 49 EHRR 23 at 43 23 Jerusalem v. Austria [2003] 37 EHRR 25 at 39. 24 Nilsen v. Norway [2000] 30 EHRR 878 at 52.. See also: Fayed v. UK [1994] 18 EHRR 393
25

Tammer v. Estonia [2003] 37 EHRR 857 at 68. ~5~

Examination No: 1000366

In Armonien v. Lithuania the applicant was the widow of a man who was not in any sense a public figure but was nonetheless named in an article which dealt with an AIDS threat in a remote part of Lithuania. The article appeared on the front page of Lithuania's biggest daily newspaper giving the applicants husbands address and accusing him of being HIV positive, of having illegitimate children and of engaging in extra marital affairs. The Court, using particularly strong invective, classified the incident as an outrageous abuse of press freedom 26 and found that where the damages awarded by the national courts were too low that of itself could amount to a breach of Article 8. The Strasbourg Court reasoned that if the damages awarded were too low they were consequently insufficient to deter the recurrence of such abuses. 27 The Strasbourg Court assess the applicable levels of scrutiny in direct proportionality to societal role or status. 28 As such, the limits of permissible criticism are widest in relation to Government 29 and narrowest for individuals who are not public figures of any kind and who do not knowingly attempt to attain such a status. It is clear that, in addition to the manifold factors already outlined, an individuals status be they politician, celebrity or private individual is also a key factor in the Courts deliberation on the circumstance in which a publication that deals with a person in whom the public has taken an interest will be protected by Article 10. In order to square this reasoning with the distinction found in Von Hannover (No.1) which appears to place celebrity figures in the same category as private individuals it is necessary to examine how the notion of public interest has evolved since Von Hannover (No.1). The Evolving Concept of Public Interest The concept of the public interest has been considered in the context of something that adds value to a publication. The added value broadens the level of protection avai lable under Article 10 of the Convention and has been defined as emanating from a publications ability to contribute to the debate in a democratic society. But why classify a publication as something the public might be interested in reading and another as something that is in the public interest to read? Indeed, the Courts uncharacteristic lack of clarity on this very point has led to some dubious decisions. One such decision, Hachette Filipacchi, concerns the political assassination of a public figure and the subsequent publication of the photos in Paris-Match. The Strasbourg Court found that as the punishment given by the domestic courts against the publication of the photos would not have a diss uasive or chilling effect on the exercise of freedom of the press there had been no violation of Article 10. However, in a strongly worded dissent Vadjic J closely examined the concept of the public interest and held, contrary to the majority of the Court, that the assassination of a public figure affected an evident and undeniable public interest,30 and the photos in particular made an essential contribution31 to a debate on a matter of general interest. Vadjic J offered several reasons for this dissent. Firstly, the event had major political repercussions 32 and could be

26 27

Armonien v. Lithuania [2009] 48 EHRR 53 at 47. Ibid at 47. 28 Ovey and White at p.433. 29 Castells v. Spain [1992] 14 EHRR 445 at 42. 30 Hachette Filipacchi Associates v. France [2009] 49 EHRR 23 at O-II17. 31 Ibid at O-II17. 32 Ibid at O-II8. ~6~

Examination No: 1000366

considered a national tragedy;33 secondly, the subject was at the very heart of the news, extending beyond the realm of private life;34 and finally, the offending publication was essentially a political comment. 35

Therefore, according to Vadjic J, the political and historical circumstances in addition to the newsworthiness and form of the publication are capable of weighing against the private interests of the family. 36 Ultimately, Vadjic J found that the public interest rarely comes across as clearly as it does in the present case and the majority decision of the Court, if taken as a legal principle, would be detrimental to the interests of our democratic societies.37 Vadjic J referred in particular to the numerous photographs of politicians or public figures the assassination of President Kennedy, for example that would not have been published, and thus might not be published in future, if this ruling were to be established as a principle. Two more recent judgements of the Strasbourg Court may assist in understanding the concept of the public interest. The first, Axel Springer v. Germany, concerned the publication of articles relating to drug possession and use by a famous television actor. The actor sued the publisher in the German Courts and was successful in obtaining an injunction to prohibit publication. The Strasbourg Court however found that there had been a violation of the publishers freedom of expression. In coming to its decision the Court considered that the definition of what constitutes a subject of public interest will depend on the circumstances of the case but pointed out nonetheless that it has recognised the existence of such an interest not onl y where the publication concerned political issues or crimes, but also where it concerned sporting issues or performing artists. 38 In addition, the Court broadened the scope of the distinction from Von Hannover (No.1) to include persons acting in a public context, as political figures or public figures.39 Once public figures are included the Court must then ask how well known must a person be in order to be considered a public figure? This, the Court considered, was in principle best left to the domestic courts margin of appreciation especially where that person is mainly known at national level.40 In Von Hannover (No.2) the Court found that the applicants right to private life had not been violated by the refusal of the German courts to grant an injunction. In this case, unlike Von Hannover (No.1), the photos in question accompanied an article reporting on the then poor health of Prince Rainier III, the father of Princess Caroline. The Strasbourg Court held that it was not unreasonable to characterise Prince Rainiers illness as an event of contemporary society41 and considered that the photos, when taken in the light of the accompanying articles, did contribute, at least to some degree, to a debate of general interest. 42 Furthermore, departing from the bounds of the distinction as characterised in Von Hannover (No.1), the Court found that regardless of whether Princess Caroline assumes any official public function it cannot be claimed that the applicants, who are
33 34

Ibid. Ibid. 35 Ibid at O-II10. 36 Ibid at O-II12. 37 Ibid at O-II15. 38 Axel Springer AG v. Germany [2012] 55 EHRR 6 at 90. See also: Nikowitz and Verlagsgruppe News GmbH v Austria (App. No.5266/03) February 22, 2007 at 25; Colao Mestre v. Portugal (App. No.11182/03 and 11319/03) April 26, 2007 at 28; and Sapan v. Turkey (App. No.44102/04) June 8, 2010 at 34. 39 Axel Springer AG v. Germany [2012] 55 EHRR 6 at 91. 40 Ibid at 98. 41 Von Hannover v. Germany (No.2) [2012] 55 EHRR 15 at 118. 42 Ibid at 118. ~7~

Examination No: 1000366

undeniably very well known, are ordinary private individuals. They must, on the contrary, be regarded as public figures.43 One of the key consequences of the Axel Springer and Von Hannover (No.2) judgements is thus a manifest widening of the concept of a public figure to include anyone sufficiently well known to the public. This means that, in addition to officials or those exercising an official function, celebrities are now potential public figures and thus may be afforded a lower level of protection in respect of their private lives than private individuals. The result of this re-characterisation is that those who court the medias attention by knowingly, and voluntarily, laying themselves open could become a legitimate target for media scrutiny. Furtghermore, there may be a lingering weakness in Von Hannover (No.2) in that the publication of photos that deal exclusively with the private life of an individual may warrant the full protection of Article 10 if they accompany an article of contemporary significance, but how far this weakness could be manipulated is questionable. Conclusions The persuasiveness of the Strasbourg Court's jurisprudence lies in its utilising a logical and coherent interpretative methodology in addition to its willingness to give reasons for its interpretative strategy. 44 Indeed one of the Courts most laudable qualities is the continuous application of its interpretative principles throughout its case law in addition to the fact that these criteria are tied so closely to the medias perceived role in the democratic process. On the other hand, however, the Court should certainly clarify the circumstances in which protection under Article 8 can be overridden in favour of the public interest, and in addition, offer a reasoned argument that determines what this interest amounts to. Indeed Harris et al hold that this approach or lack thereof, entails a haze of vagueness45 as without this reasoning to back it up it can prove difficult to understand the Courts application of its principles. 46 Of particular concern are the more subversive aspects of the Courts reasoning, in particular, the factoring of aim and newsworthiness, for if these criteria are to be used as deliberative principles it should be so stated and the concepts rigorously developed, otherwise, the Court could be seen to be engaging in arbitrariness or elitism. 47

43 44

Von Hannover v. Germany (No.2) [2012] 55 EHRR 15 at 120. A view supported by Tom Daly in his article Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(I) of the Constitution (2009) Dublin University Law Journal. 45 See: Harris et al at p.512. 46 In addition to the statements of Harris et al above this sentiment is echoed by Barent in Balancing Freedom of Expression and Privacy: The Jurisprudence of the Strasbourg Court (2009) Journal of Media Law at p.72. 47 Harris et al at p.512. ~8~

Examination No: 1000366

Bibliography: Cases:Armonien v. Lithuania [2009] 48 EHRR 53 Axel Springer AG v. Germany [2012] 55 EHRR 6 Barthold v. Germany [1985] 7 EHRR 383 Colao Mestre v. Portugal (App. No.11182/03 and 11319/03) April 26, 2007 Castells v. Spain [1992] 14 EHRR 445 Dichand v. Austria (App. No.29271/95) Editions Plon v. France [2006] 42 EHRR 36 Fayed v. UK [1994] 18 EHRR 393 Financial Times v. UK [2010] 50 EHRR 46 Goodwin v. UK [1996] 22 EHRR 123 Hachette Filipacchi Associates v. France [2009] 49 EHRR 23 Jerusalem v. Austria [2003] 37 EHRR 25 Karhuvaara v. Finland [2004] 41 EHRR 1154 Leempoel v Belgium (64772/01) November 9, 2006 Lindon, Otchakovsky-Laurens and July v. France [2008] 46 EHRR 35 Lingens v. Austria [1986] 8 EHRR 407 Mosley v. UK [2011] 53 EHRR 30 MGN Ltd v. UK [2011] 53 EHRR 5 Nikowitz and Verlagsgruppe News GmbH v Austria (App. No.5266/03) February 22, 2007 Nilsen v. Norway [2000] 30 EHRR 878 Oberschlick v Austria (No. 2) [1998] 25 EHRR 357 Palko v. Connecticut [1937] 302 US 319 Prager and Oberschlick v. Austria [1996] 21 EHRR 1 R v. Sharpe [2001] 1 SCR 45 Sapan v. Turkey (App. No.44102/04) June 8, 2010 Societe Prisma Presse v. France (App. No.66910/01 and 71612/01) July 1, 2003 Standard Verlags v. Austria (No.2) (App. No. 21277/05) June 4, 2009 Sunday Times v. UK (No.1) 2 EHRR 245 Tammer v. Estonia [2003] 37 EHRR 857 Von Hannover v. Germany (No.1) [2005] 40 EHRR 1 Von Hannover v. Germany (No.2) [2012] 55 EHRR 15

Books:Barendt, E; Freedom of Speech (2nd ed, Oxford University Press, 2005) Harris, O Boyle and Warbrick; Law of European Convention on Human Rights (2nd ed, Oxford University Press 2009). Peter Hogg; Constitutional Law of Canada (5th ed, Thomson Carswell, Release, 2007)

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Examination No: 1000366

White and Ovey; Jacobs, White and Ovey, The European Convention on Human Rights (5th ed, Oxford University Press, 2010).

Articles:Barendt, E; Balancing Freedom of Expression and Privacy: The Jurisprudence of the Strasbourg Court (2009) Journal of Media Law. Daly, T; Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(I) of the Constitution (2009) Dublin University Law Journal. Lehnhardt, E; Privacy Law and the German Experience (2012) 30 Irish Law Times 1; p.34-37. Moynihan, Y; The Defence of Fair and Reasonable Publication on a Matter of Public Interest (2012) 30 Irish Law Times 1; p.281-284

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