CONSEIL
DE L'EUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE L'HOMME
EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF VON HANNOVER v. GERMANY
(Application no. 59320/00)
JUDGMENT
STRASBOURG
24 June 2004
FINAL
24/09/2004
VON HANNOVER v. GERMANY JUDGMENT 1
In the case of Von Hannover v. Germany,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Mr I. CABRAL BARRETO, President,
Mr G. RESS,
Mr L. CAFLISCH,
Mr R. TÜRMEN,
Mr B. ZUPANČIČ,
Mr J. HEDIGAN,
Mr K. TRAJA, judges,
and Mr V. BERGER, Section Registrar,
Having deliberated in private on 6 November 2003 and 3 June 2004,
Delivers the following judgment, which was adopted on the lastmentioned
date:
PROCEDURE
1. The case originated in an application (no. 59320/00) against the
Federal Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention") by a national of Monaco, Caroline von Hannover ("the
applicant"), on 6 June 2000.
2. The applicant alleged that the German court decisions in her case had
infringed her right to respect for her private and family life as guaranteed by
Article 8 of the Convention.
3. The application was allocated to the Fourth Section of the Court
(Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1.
4. On 1 November 2001 the Court changed the composition of its
Sections (Rule 25 § 1). This case was assigned to the newly composed
Third Section (Rule 52 § 1).
5. By a decision of 8 July 2003, the Chamber declared the application
admissible.
6. The applicant and the Government each filed observations on the
merits (Rule 59 § 1). In addition, comments were received from the
Association of German Magazine Publishers (Verband deutscher
Zeitschriftenverleger) and from Hubert Burda Media GmbH & Co. KG,
which had been given leave by the President to intervene in the written
procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The applicant
replied to those comments (Rule 44 § 5).
VON HANNOVER v. GERMANY JUDGMENT 2
7. A hearing took place in public in the Human Rights Building,
Strasbourg, on 6 November 2003 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr K. STOLTENBERG, Ministerialdirigent, Agent,
Mr A. OHLY, Professor of civil law at Bayreuth University, Counsel,
Mrs A. LAITENBERGER, executive assistant to the Agent, Adviser;
(b) for the applicant
Mr M. PRINZ, lawyer, Counsel,
Ms C. MOFFAT, lawyer,
Mr A. TOUCAS, lawyer, Advisers.
The Court heard addresses by Mr Prinz, Mr Stoltenberg and Mr Ohly.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant, who is the eldest daughter of Prince Rainier III of
Monaco, was born in 1957. Her official residence is in Monaco but she lives
in the Paris area most of the time.
As a member of Prince Rainier's family, the applicant is the president of
certain humanitarian or cultural foundations, such as the Princess Grace
Foundation or the Prince Pierre of Monaco Foundation, and also represents
the ruling family at events such as the Red Cross Ball or the opening of the
International Circus Festival. She does not, however, perform any function
within or on behalf of the State of Monaco or any of its institutions.
A. Background to the case
9. Since the early 1990s the applicant has been trying ­ often through the
courts ­ in a number of European countries to prevent the publication of
photos about her private life in the tabloid press.
10. The photos that were the subject of the proceedings described below
were published by the Burda publishing company in the German magazines
Bunte and Freizeit Revue, and by the Heinrich Bauer publishing company in
the German magazine Neue Post.
VON HANNOVER v. GERMANY JUDGMENT 3
1. The first series of photos
(a) The five photos of the applicant published in Freizeit Revue magazine
(issue no. 30 of 22 July 1993)
11. These photos show her with the actor Vincent Lindon at the far end
of a restaurant courtyard in Saint-Rémy-de-Provence. The first page of the
magazine refers to "The most tender photos of her romance with Vincent"
("Die zärtlichsten Fotos Ihrer Romanze mit Vincent") and the photos
themselves bear the caption "These photos are evidence of the most tender
romance of our time" ("Diese Fotos sind der Beweis für die zärtlichste
Romanze unserer Zeit").
(b) The two photos of the applicant published in Bunte magazine (issue no. 32
of 5 August 1993)
12. The first photo shows her on horseback with the caption "Caroline
and the blues. Her life is a novel with innumerable misfortunes, says the
author Roig" ("Caroline und die Melancholie. Ihr Leben ist ein Roman mit
unzähligen Unglücken, sagt Autor Roig").
The second photo shows her with her children Pierre and Andrea.
The photos are part of an article entitled "I don't think I could be a man's
ideal wife" ("Ich glaube nicht, dass ich die ideale Frau für einen Mann sein
kann").
(c) The seven photos of the applicant published in Bunte magazine (issue
no. 34 of 19 August 1993)
13. The first photo shows her canoeing with her daughter Charlotte, the
second shows her son Andrea with a bunch of flowers in his arms.
The third photo shows her doing her shopping with a bag slung over her
shoulder, the fourth with Vincent Lindon in a restaurant and the fifth alone
on a bicycle.
The sixth photo shows her with Vincent Lindon and her son Pierre.
The seventh photo shows her doing her shopping at the market,
accompanied by her bodyguard.
The article is entitled "Pure happiness" ("Vom einfachen Glück").
2. The second series of photos
(a) The ten photos of the applicant published in Bunte magazine (issue no. 10
of 27 February 1997)
14. These photos show the applicant on a skiing holiday in Zürs/Arlberg.
The accompanying article is entitled "Caroline... a woman returns to life"
("Caroline... eine Frau kehrt ins Leben zurück").
VON HANNOVER v. GERMANY JUDGMENT 4
(b) The eleven photos of the applicant published in Bunte magazine (issue
no. 12 of 13 March 1997)
15. Seven photos show her with Prince Ernst August von Hannover at a
horse show in Saint-Rémy-de-Provence. The accompanying article is
entitled "The kiss. Or: they are not hiding anymore" ("Der Kuss. Oder: jetzt
verstecken sie sich nicht mehr").
Four other photos show her leaving her house in Paris with the caption
"Out and about with Princess Caroline in Paris" ("Mit Prinzessin Caroline
unterwegs in Paris").
(c) The seven photos of the applicant published in Bunte magazine (issue
no. 16 of 10 April 1997)
16. These photos show the applicant on the front page with Prince Ernst
August von Hannover and on the inside pages of the magazine playing
tennis with him or both putting their bicycles down.
3. The third series of photos
17. The sequence of photos published in Neue Post magazine (issue
no. 35/97) shows the applicant at the Monte Carlo Beach Club, dressed in a
swimsuit and wrapped up in a bathing towel, tripping over an obstacle and
falling down. The photos, which are quite blurred, are accompanied by an
article entitled "Prince Ernst August played fisticuffs and Princess Caroline
fell flat on her face" ("Prinz Ernst August haute auf den Putz und
Prinzessin Caroline fiel auf die Nase").
B. The proceedings in the German courts
1. The first set of proceedings
(a) Judgment of the Hamburg Regional Court of 4 February 1993
18. On 13 August 1993 the applicant sought an injunction in the
Hamburg Regional Court (Landgericht) against any further publication by
the Burda publishing company of the first series of photos on the ground
that they infringed her right to protection of her personality rights
(Persönlichkeitsrecht), guaranteed by Articles 2 § 1 and 1 § 1 of the Basic
Law (Grundgesetz), and her right to protection of her private life and to the
control of the use of her image, guaranteed by sections 22 et seq. of the
Copyright (Arts Domain) Act (Kunsturhebergesetz ­ "the Copyright Act" see
paragraphs 40-41 below).
19. In a judgment of 4 February 1993, the Regional Court granted the
application only in respect of the distribution of the magazines in France, in
accordance with the rules of private international law (section 38 of the
VON HANNOVER v. GERMANY JUDGMENT 5
Introductory Act to the Civil Code ­ Einführungsgesetz in das bürgerliche
Gesetzbuch) read in conjunction with Article 9 of the French Civil Code.
With regard to the distribution of the magazines in Germany, however,
the Regional Court reiterated that it was German law which applied. Under
section 23(1) no. 1 of the Copyright Act, the applicant, as a figure of
contemporary society "par excellence" (eine "absolute" Person der
Zeitgeschichte), had to tolerate this kind of publication.
The Regional Court held that she had failed to establish a legitimate
interest (berechtigtes Interesse) justifying an injunction against further
publication because, where figures of contemporary society "par
excellence" were concerned, the right to protection of private life stopped at
their front door. All the photos of the applicant had been taken exclusively
in public places.
(b) Judgment of the Hamburg Court of Appeal of 8 December 1994
20. The applicant appealed against that judgment.
21. In a judgment of 8 December 1994, the Hamburg Court of Appeal
(Oberlandesgericht) dismissed the applicant's appeal and set aside the
injunction against subsequent publications in France.
Indeed, like the Regional Court, the Court of Appeal found that the
applicant was a contemporary figure "par excellence" and therefore had to
tolerate publication without her consent of the photos in question, which
had all been taken in public places. Even if the constant hounding by
photographers made her daily life difficult, it arose from a legitimate desire
to inform the general public.
(c) Judgment of the Federal Court of Justice of 19 December 1995
22. The applicant appealed on points of law against that judgment.
23. In a judgment of 19 December 1995, the Federal Court of Justice
(Bundesgerichtshof) allowed the applicant's appeal in part, granting her an
injunction against any further publication of the photos that had appeared in
Freizeit Revue magazine (issue no. 30 of 22 July 1993) showing her with
Vincent Lindon in a restaurant courtyard on the ground that the photos
interfered with her right to respect for her private life.
The Federal Court held that even figures of contemporary society "par
excellence" were entitled to respect for their private life and that this was
not limited to their home but also covered the publication of photos. Outside
their home, however, they could not rely on the protection of their privacy
unless they had retired to a secluded place ­ away from the public eye (in
eine örtliche Abgeschiedenheit) ­ where it was objectively clear to everyone
that they wanted to be alone and where, confident of being away from
prying eyes, they behaved in a given situation in a manner in which they
would not behave in a public place. Unlawful interference with the
protection of that privacy could therefore be made out if photos were
VON HANNOVER v. GERMANY JUDGMENT 6
published that had been taken secretly and/or by catching unawares a person
who had retired to such a place. That was the position here, where the
applicant and her male companion had withdrawn to the far end of a
restaurant courtyard with the clear aim of being out of the public eye.
However, the Federal Court dismissed the remainder of her appeal on the
ground that, as a figure of contemporary society "par excellence", the
applicant had to tolerate the publication of photos in which she appeared in
a public place even if they were photos of scenes from her daily life and not
photos showing her exercising her official functions. The public had a
legitimate interest in knowing where the applicant was staying and how she
behaved in public.
(d) Judgment of the Federal Constitutional Court of 15 December 1999
24. The applicant then appealed to the Federal Constitutional Court
(Bundesverfassungsgericht), submitting that there had been an infringement
of her right to the protection of her personality rights (Article 2 § 1 read in
conjunction with Article 1 § 1 of the Basic Law).
In the applicant's submission, the criteria established by the Federal
Court of Justice regarding the protection of privacy in respect of photos
taken in public places did not effectively protect the free development of the
personality, be it in the context of private life or family life. Those criteria
were so narrow that in practice the applicant could be photographed at any
time outside her home and the photos subsequently published in the media.
Given that the photos were not used genuinely to inform people, but
merely to entertain them, the right to control the use of one's image in
respect of scenes from private life, which had been recognised by the caselaw
of the Federal Constitutional Court, prevailed over the right ­ also
guaranteed by the Basic Law ­ to freedom of the press.
25. In a landmark judgment of 15 December 1999, delivered after a
hearing, the Constitutional Court allowed the applicant's appeal in part on
the ground that the publication of the three photos in issues nos. 32 and 34
of Bunte magazine, dated 5 August 1993 and 19 August 1993, featuring the
applicant with her children had infringed her right to the protection of her
personality rights guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law,
reinforced by her right to family protection under Article 6 of the Basic
Law. It referred the case to the Federal Court of Justice on that point.
However, the Constitutional Court dismissed the applicant's appeal
regarding the other photos.
The relevant extract of the judgment reads as follows:
"The appeal is well-founded in part.
...
II.
VON HANNOVER v. GERMANY JUDGMENT 7
The decisions being appealed do not fully satisfy the requirements of Article 2 § 1
read in conjunction with Article 1 § 1 of the Basic Law.
1. The provisions of sections 22 and 23 of the KUG [Kunsturhebergesetz Copyright
Act] on which the civil courts based their decisions in the present case are,
however, compatible with the Basic Law.
Under Article 2 § 1 of the Basic Law, general personality rights are guaranteed only
within the framework of the constitutional order. The provisions concerning the
publication of photographical representations of persons listed in sections 22 and 23 of
the KUG are part of that constitutional order. They derive from an incident which at
the time caused a scandal (photos of Bismarck on his deathbed ...) and from the
ensuing politico-legal debate sparked off by this incident ..., and aim to strike a fair
balance between respect for personality rights and the community's interest in being
informed ...
Under section 22, first sentence, of the KUG, pictures can only be disseminated or
exposed to the public eye with the express approval of the person represented. Pictures
relating to contemporary society are excluded from that rule under section 23(1) of the
KUG ... Under section 23(2) of the KUG, however, that exception does not apply
where the dissemination interferes with a legitimate interest of the person represented.
The protection by degrees under these rules ensures that they take account of the need
to protect the person being represented as well as the community's desire to be
informed and the interest of the media which satisfy that desire. That much has
already been established by the Federal Constitutional Court ...
...
(b) In the instant case regard must be had, in interpreting and applying sections 22
and 23 of the KUG, not only to general personality rights, but also to the freedom of
the press guaranteed by Article 5 § 1, second sentence, of the Basic Law in so far as
the provisions in question also affect those freedoms.
...
The fact that the press fulfils the function of forming public opinion does not
exclude entertainment from the functional guarantee under the Basic Law. The
formation of opinions and entertainment are not opposites. Entertainment also plays a
role in the formation of opinions. It can sometimes even stimulate or influence the
formation of opinions more than purely factual information. Moreover, there is a
growing tendency in the media to do away with the distinction between information
and entertainment both as regards press coverage generally and individual
contributions, and to disseminate information in the form of entertainment or mix it
with entertainment (`infotainment'). Consequently, many readers obtain information
they consider to be important or interesting from entertaining coverage ...
Nor can mere entertainment be denied any role in the formation of opinions. That
would amount to unilaterally presuming that entertainment merely satisfies a desire
for amusement, relaxation, escapism or diversion. Entertainment can also convey
images of reality and propose subjects for debate that spark off a process of discussion
and assimilation relating to philosophies of life, values and behaviour models. In that
respect, it fulfils important social functions ... When measured against the aim of
VON HANNOVER v. GERMANY JUDGMENT 8
protecting press freedom, entertainment in the press is neither negligible nor entirely
worthless and therefore falls within the scope of application of fundamental rights ...
The same is true of information about people. Personalisation is an important
journalistic means of attracting attention. Very often it is this which first arouses
interest in a problem and stimulates a desire for factual information. Similarly, interest
in a particular event or situation is usually stimulated by personalised accounts.
Additionally, celebrities embody certain moral values and lifestyles. Many people
base their choice of lifestyle on their example. They become points of crystallisation
for adoption or rejection and act as examples or counter-examples. This is what
explains the public interest in the various ups and downs occurring in their lives.
As regards politicians, this public interest has always been deemed to be legitimate
from the point of view of transparency and democratic control. Nor can it in principle
be disputed that it exists in respect of other public figures. To that extent it is the
function of the press to show people in situations that are not limited to specific
functions or events and this also falls within the sphere of protection of press freedom.
It is only when a balancing exercise has to be done between competing personality
rights that an issue arises as to whether matters of essential interest for the public are
involved and treated seriously and objectively or whether private matters, designed
merely to satisfy the public's curiosity, are being disseminated ...
(c) The decision of the Federal Court of Justice largely stands up to an examination
of its compatibility with the constitutional rules.
(aa) The Federal Court of Justice cannot be criticised under constitutional law for
assessing the conditions of application [Tatbestandsvoraussetzungen] of section 23(1)
no. 1 of the KUG according to the criterion of the community's interest in being
informed and deciding on that basis that the photos showing the appellant outside her
representative function in the Principality of Monaco were lawful.
Under section 23(1) no. 1 of the KUG, the publication of pictures portraying an
aspect of contemporary society are exempted from the obligation to obtain the consent
of the person concerned within the meaning of section 22 of the KUG. Judging from
the drafting history of the Act ... and from the meaning and purpose of the words used,
the provision in question takes into consideration the community's interest in being
informed and the freedom of the press. Accordingly, the interpretation of this element
[Tatbestandsmerkmal] must take account of the interests of the public. Pictures of
people who are of no significance in contemporary society should not be made freely
accessible to the public: they require the prior consent of the person concerned. The
other element that is affected by fundamental rights, that of a `legitimate interest' for
the purposes of section 23(2) of the KUG, concerns only ­ and this must be stressed at
the outset ­ figures of contemporary society and cannot therefore take sufficient
account of the interests of the freedom of the press if these have previously been
neglected when the circle of the persons concerned was defined.
It is in keeping with the importance and scope of the freedom of the press, and not
unreasonably restrictive of the protection of personality rights, that the concept of
contemporary society referred to in section 23(1) no. 1 of the KUG should not only
cover, in accordance with a definition given by the courts, events of historical or
political significance, but be defined on the basis of the public interest in being
informed ... The kernel of press freedom and the free formation of opinions requires
VON HANNOVER v. GERMANY JUDGMENT 9
the press to have, within legal limits, sufficient margin of manoeuvre to allow it to
decide, in accordance with its publishing criteria, what the public interest demands,
and the process of forming opinion to establish what amounts to a matter of public
interest. As has been stated, entertaining coverage is no exception to these principles.
Nor should the Federal Court of Justice be criticised for including in the `domain of
contemporary society', within the meaning of section 23(1) no. 1 of the KUG, pictures
of people who have not only aroused public interest at a certain point on the occasion
of a particular historical event but who, on account of their status and importance,
attract the public's attention in general and not just on the odd occasion. Account
should also be taken in this regard of the fact that, compared to the situation at the
time the Copyright Act was passed, increased importance is given today to illustrated
information. The concept of a `figure of contemporary society "par excellence" '
[`absolute' Person der Zeitgeschichte], often employed in this respect in the case-law
and legal theory, does not conclusively derive from statute or the Constitution. If, as
was done by the Court of Appeal and the Federal Court of Justice, it is interpreted as a
shortened expression designating people whose image is deemed by the public to be
worthy of respect out of consideration for the people concerned, it is irreproachable
from the point of view of constitutional law at least as long as a balancing exercise is
carried out, in the light of the circumstances of the case, between the public's interest
in being informed and the legitimate interests of the person concerned.
General personality rights do not require publications that are not subject to prior
consent to be limited to pictures of figures of contemporary society in the exercise of
their function in society. Very often the public interest aroused by such figures does
not relate exclusively to the exercise of their function in the strict sense. It can, on the
contrary, by virtue of the particular function and its impact, extend to information
about the way in which these figures behave generally ­ that is, also outside their
function ­ in public. The public has a legitimate interest in being allowed to judge
whether the personal behaviour of the individuals in question, who are often regarded
as idols or role models, convincingly tallies with their behaviour on their official
engagements.
If, on the other hand, the right to publish pictures of people considered to be figures
of contemporary society were to be limited to their official functions, insufficient
account would be taken of the public interest properly aroused by such figures and this
would, moreover, favour a selective presentation that would deprive the public of
certain necessary judgmental possibilities in respect of figures of socio-political life,
having regard to the function of role model of such figures and the influence they
exert. The press is not, however, allowed to use every picture of figures of
contemporary society. On the contrary, section 23(2) of the KUG gives the courts
adequate opportunity to apply the protective provisions of Article 2 § 1 read in
conjunction with Article 1 § 1 of the Basic Law ...
(bb) In theory the criteria established by the Federal Court of Justice for
interpreting the concept of `legitimate interest' used in section 23(2) of the KUG are
irreproachable from the point of view of constitutional law.
According to the decision being appealed, the privacy meriting protection that must
also be afforded to `figures of contemporary society "par excellence" ' presupposes
that they have retired to a secluded place with the objectively recognisable aim of
being alone and where, confident of being alone, they behave in a manner in which
they would not behave in public. The Federal Court of Justice accepted that there had
VON HANNOVER v. GERMANY JUDGMENT 10
been a breach of sections 22 and 23 of the KUG where this type of picture was taken
secretly or by catching the person unawares.
The criterion of a secluded place takes account of the aim, pursued by the general
right to protection of personality rights, of allowing the individual a sphere, including
outside the home, in which he does not feel himself to be the subject of permanent
public attention ­ and relieves him of the obligation of behaving accordingly ­ and in
which he can relax and enjoy some peace and quiet. This criterion does not
excessively restrict press freedom because it does not impose a blanket ban on pictures
of the daily or private life of figures of contemporary society, but allows them to be
shown where they have appeared in public. In the event of an overriding public
interest in being informed, the freedom of the press can even, in accordance with that
case-law authority, be given priority over the protection of the private sphere ...
The Federal Court of Justice properly held that it is legitimate to draw conclusions
from the behaviour adopted in a given situation by an individual who is clearly in a
secluded spot. However, the protection against dissemination of photos taken in that
context does not only apply where the individual behaves in a manner in which he
would not behave in public. On the contrary, the development of the personality
cannot be properly protected unless, irrespective of his behaviour, the individual has a
space in which he can relax without having to tolerate the presence of photographers
or cameramen. That is not in issue here, however, since, according to the findings on
which the Federal Court of Justice based its decision, the first of the conditions to
which protection of private life is subject has not been met.
Lastly, there is nothing unconstitutional, when balancing the public interest in being
informed against the protection of private life, in attaching importance to the method
used to obtain the information in question ... It is doubtful, however, that the mere fact
of photographing the person secretly or catching them unawares can be deemed to
infringe their privacy outside the home. Having regard to the function attributed to that
privacy under constitutional law and to the fact that it is usually impossible to
determine from a photo whether the person has been photographed secretly or caught
unawares, the existence of unlawful interference with that privacy cannot in any case
be made out merely because the photo was taken in those conditions. As, however, the
Federal Court of Justice has already established in respect of the photographs in
question that the appellant was not in a secluded place, the doubts expressed above
have no bearing on the review of its decision.
(cc) However, the constitutional requirements have not been satisfied in so far as
the decisions of which the appellant complains did not take account of the fact that the
right to protection of personality rights of persons in the appellant's situation is
strengthened by Article 6 of the Basic Law regarding those persons' intimate relations
with their children.
(dd) The following conclusions can be drawn from the foregoing considerations
with regard to the photographs in question:
The decision of the Federal Court of Justice cannot be criticised under constitutional
law regarding the photos of the appellant at a market, doing her shopping at a market
accompanied by her bodyguard or dining with a male companion at a well-attended
restaurant. The first two cases concerned an open location frequented by the general
public. The third case admittedly concerned a well-circumscribed location, spatially
VON HANNOVER v. GERMANY JUDGMENT 11
speaking, but one in which the appellant was exposed to the other people present. It is
for this reason, moreover, that the Federal Court of Justice deemed it legitimate to ban
photos showing the appellant in a restaurant garden, which were the subject of the
decision being appealed but are not the subject of the constitutional appeal. The
presence of the appellant and her companion there presented all the features of
seclusion. The fact that the photographs in question were evidently taken from a
distance shows that the appellant could legitimately have assumed that she was not
exposed to public view.
Nor can the decision being appealed be criticised regarding the photos of the
appellant alone on horseback or riding a bicycle. In the Federal Court of Justice's
view, the appellant had not been in a secluded place, but in a public one. That finding
cannot attract criticism under constitutional law. The appellant herself describes the
photos in question as belonging to the intimacy of her private sphere merely because
they manifest her desire to be alone. In accordance with the criteria set out above, the
mere desire of the person concerned is not relevant in any way.
The three photos of the appellant with her children require a fresh examination,
however, in the light of the constitutional rules set out above. We cannot rule out the
possibility that the review that needs to be carried out in the light of the relevant
criteria will lead to a different result for one or other or all the photos. The decision
must therefore be set aside in that respect and remitted to the Federal Court of Justice
for a fresh decision.
(d) The decisions of the Regional Court and the Court of Appeal resulted in a
violation of fundamental rights by limiting to the home the privacy protected by
Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law in accordance,
moreover, with a rationale that was in keeping with the case-law at the time. The
decisions in question do not need to be set aside, however, since the violation
complained of has been remedied in part by the Federal Court of Justice and the
remainder of the case remitted to that court.
..."
(e) Sequel to the proceedings
26. Following the remittal of the case to the Federal Court of Justice in
connection with the three photos that had appeared in Bunte magazine (issue
no. 32 of 5 August 1993 and no. 34 of 19 August 1993) showing the
applicant with her children, the Burda publishing company undertook not to
republish the photos (Unterlassungserklärung).
2. The second set of proceedings
(a) Judgment of the Hamburg Regional Court of 26 September 1997
27. On 14 May 1997 the applicant reapplied to the Hamburg Regional
Court, seeking an injunction preventing the Burda publishing company from
republishing the second series of photos on the ground that they infringed
VON HANNOVER v. GERMANY JUDGMENT 12
her right to protection of her personality rights, guaranteed by Articles 2 § 1
and 1 § 1 of the Basic Law, and her right to protection of her private life and
to the control of the use of her image, guaranteed by sections 22 et seq. of
the Copyright Act.
28. In a judgment of 26 September 1997, the Hamburg Regional Court
rejected the application, referring in particular to the grounds of the Federal
Court of Justice's judgment of 19 December 1995.
(b) Judgment of the Hamburg Court of Appeal of 10 March 1998
29. The applicant appealed against that judgment.
30. In a judgment of 10 March 1998, the Hamburg Court of Appeal
dismissed the applicant's appeal for the same reasons.
(c) Decision of the Federal Constitutional Court of 4 April 2000
31. As the Court of Appeal did not grant leave to appeal on points of law
to the Federal Court of Justice, the applicant lodged a constitutional appeal
directly with the Federal Constitutional Court, relying on her earlier
submissions.
32. In a decision of 4 April 2000, the Federal Constitutional Court,
ruling as a panel of three judges, refused to entertain the appeal. It referred
in particular to the Federal Court of Justice's judgment of 19 December
1995 and to its own landmark judgment of 15 December 1999.
3. The third set of proceedings
(a) Judgment of the Hamburg Regional Court of 24 April 1998
33. On 5 November 1997 the applicant reapplied to the Hamburg
Regional Court, seeking an injunction preventing the Heinrich Bauer
publishing company from republishing the third series of photos on the
ground that they infringed her right to protection of her personality rights,
guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law, and the right to
protection of her private life and to the control of the use of her image,
guaranteed by sections 22 et seq. of the Copyright (Arts Domain) Act.
The applicant submitted, among other things, a sworn attestation by the
director of the Monte Carlo Beach Club to the effect that the swimming
baths in question were a private establishment, access to which was subject
to a high fee and strictly controlled and from which journalists and
photographers were debarred unless they had the express permission of the
owner of the establishment. The fact that the photos were very blurred
showed that they had been taken secretly, at a distance of several hundred
metres, from the window or roof of a neighbouring house.
34. In a judgment of 24 April 1998, the Hamburg Regional Court
rejected the application, referring in particular to the grounds of the Federal
VON HANNOVER v. GERMANY JUDGMENT 13
Court of Justice's judgment of 19 December 1995. The court stated that the
Monte Carlo Beach Club had to be considered as an open-air swimming
pool that was open to the public, even if an entry fee was charged and
access restricted.
(b) Judgment of the Hamburg Court of Appeal of 13 October 1998
35. The applicant appealed against that judgment.
36. In a judgment of 13 October 1998, the Hamburg Court of Appeal
dismissed the applicant's appeal for the same reasons.
The Court of Appeal found that a swimming pool or beach was not a
secluded place and that the photos showing the applicant tripping over an
obstacle and falling down were not such as to denigrate or demean her in
the public's eyes.
(c) The decision of the Federal Constitutional Court of 13 April 2000
37. As the Court of Appeal did not grant the applicant leave to appeal on
points of law to the Federal Court of Justice, the applicant lodged a
constitutional appeal directly with the Federal Constitutional Court, relying
on her earlier submissions.
38. In a decision of 13 April 2000, the Federal Constitutional Court,
ruling as a panel of three judges, refused to entertain the appeal. It referred
in particular to the Federal Court of Justice's judgment of 19 December
1995 and to its own landmark judgment of 15 December 1999.
The Constitutional Court held that the ordinary courts had properly found
that the Monte Carlo Beach Club was not a secluded place and that the
photos of the applicant wearing a swimsuit and falling down were not
capable of constituting an infringement of her right to respect for her private
life.
II. RELEVANT DOMESTIC AND EUROPEAN LAW
A. The Basic Law
39. The relevant provisions of the Basic Law are worded as follows:
Article 1 § 1
"The dignity of human beings is inviolable. All public authorities have a duty to
respect and protect it."
Article 2 § 1
VON HANNOVER v. GERMANY JUDGMENT 14
"Everyone shall have the right to the free development of their personality provided
that they do not interfere with the rights of others or violate the constitutional order or
moral law [Sittengesetz]."
Article 5 §§ 1 and 2
"1. Everyone shall have the right freely to express and disseminate his or her
opinions in speech, writing and pictures and freely to obtain information from
generally accessible sources. Freedom of the press and freedom of reporting on the
radio and in films shall be guaranteed. There shall be no censorship.
2. These rights shall be subject to the limitations laid down by the provisions of the
general laws and by statutory provisions aimed at protecting young people and to the
obligation to respect personal honour [Recht der persönlichen Ehre]."
Article 6 §§ 1 and 2
"1. Marriage and the family enjoy the special protection of the State.
2. The care and upbringing of children is the natural right of parents and a duty
primarily incumbent on them. The State community shall oversee the performance of
that duty."
B. The Copyright (Arts Domain) Act
40. Section 22(1) of the Copyright (Arts Domain) Act provides that
images can only be disseminated with the express approval of the person
concerned.
41. Section 23(1) no. 1 of that Act provides for exceptions to that rule,
particularly where the images portray an aspect of contemporary society
(Bildnisse aus dem Bereich der Zeitgeschichte) on condition that publication
does not interfere with a legitimate interest (berechtigtes Interesse) of the
person concerned (section 23(2)).
C. Resolution 1165 (1998) of the Parliamentary Assembly of the
Council of Europe on the right to privacy
42. The full text of this resolution, adopted by the Parliamentary
Assembly on 26 June 1998, is worded as follows:
"1. The Assembly recalls the current affairs debate it held on the right to privacy
during its September 1997 session, a few weeks after the accident which cost the
Princess of Wales her life.
2. On that occasion, some people called for the protection of privacy, and in
particular that of public figures, to be reinforced at the European level by means of a
VON HANNOVER v. GERMANY JUDGMENT 15
convention, while others believed that privacy was sufficiently protected by national
legislation and the European Convention on Human Rights, and that freedom of
expression should not be jeopardised.
3. In order to explore the matter further, the Committee on Legal Affairs and
Human Rights organised a hearing in Paris on 16 December 1997 with the
participation of public figures or their representatives and the media.
4. The right to privacy, guaranteed by Article 8 of the European Convention on
Human Rights, has already been defined by the Assembly in the declaration on mass
communication media and human rights, contained within Resolution 428 (1970), as
`the right to live one's own life with a minimum of interference'.
5. In view of the new communication technologies which make it possible to store
and use personal data, the right to control one's own data should be added to this
definition.
6. The Assembly is aware that personal privacy is often invaded, even in countries
with specific legislation to protect it, as people's private lives have become a highly
lucrative commodity for certain sectors of the media. The victims are essentially
public figures, since details of their private lives serve as a stimulus to sales. At the
same time, public figures must recognise that the special position they occupy in
society - in many cases by choice - automatically entails increased pressure on their
privacy.
7. Public figures are persons holding public office and/or using public resources
and, more broadly speaking, all those who play a role in public life, whether in
politics, the economy, the arts, the social sphere, sport or in any other domain.
8. It is often in the name of a one-sided interpretation of the right to freedom of
expression, which is guaranteed in Article 10 of the European Convention on Human
Rights, that the media invade people's privacy, claiming that their readers are entitled
to know everything about public figures.
9. Certain facts relating to the private lives of public figures, particularly
politicians, may indeed be of interest to citizens, and it may therefore be legitimate for
readers, who are also voters, to be informed of those facts.
10. It is therefore necessary to find a way of balancing the exercise of two
fundamental rights, both of which are guaranteed by the European Convention on
Human Rights: the right to respect for one's private life and the right to freedom of
expression.
11. The Assembly reaffirms the importance of every person's right to privacy, and
of the right to freedom of expression, as fundamental to a democratic society. These
rights are neither absolute nor in any hierarchical order, since they are of equal value.
12. However, the Assembly points out that the right to privacy afforded by
Article 8 of the European Convention on Human Rights should not only protect an
individual against interference by public authorities, but also against interference by
private persons or institutions, including the mass media.
VON HANNOVER v. GERMANY JUDGMENT 16
13. The Assembly believes that, since all member states have now ratified the
European Convention on Human Rights, and since many systems of national
legislation comprise provisions guaranteeing this protection, there is no need to
propose that a new convention guaranteeing the right to privacy should be adopted.
14. The Assembly calls upon the governments of the member states to pass
legislation, if no such legislation yet exists, guaranteeing the right to privacy
containing the following guidelines, or if such legislation already exists, to supplement
it with these guidelines:
(i) the possibility of taking an action under civil law should be guaranteed, to
enable a victim to claim possible damages for invasion of privacy;
(ii) editors and journalists should be rendered liable for invasions of privacy by
their publications, as they are for libel;
(iii) when editors have published information that proves to be false, they should be
required to publish equally prominent corrections at the request of those concerned;
(iv) economic penalties should be envisaged for publishing groups which
systematically invade people's privacy;
(v) following or chasing persons to photograph, film or record them, in such a
manner that they are prevented from enjoying the normal peace and quiet they expect
in their private lives or even such that they are caused actual physical harm, should be
prohibited;
(vi) a civil action (private lawsuit) by the victim should be allowed against a
photographer or a person directly involved, where paparazzi have trespassed or used
`visual or auditory enhancement devices' to capture recordings that they otherwise
could not have captured without trespassing;
(vii) provision should be made for anyone who knows that information or images
relating to his or her private life are about to be disseminated to initiate emergency
judicial proceedings, such as summary applications for an interim order or an
injunction postponing the dissemination of the information, subject to an assessment
by the court as to the merits of the claim of an invasion of privacy;
(viii) the media should be encouraged to create their own guidelines for publication
and to set up an institute with which an individual can lodge complaints of invasion of
privacy and demand that a rectification be published.
15. It invites those governments which have not yet done so to ratify without delay
the Council of Europe Convention for the Protection of Individuals with regard to
Automatic Processing of Personal Data.
16. The Assembly also calls upon the governments of the member states to:
(i) encourage the professional bodies that represent journalists to draw up certain
criteria for entry to the profession, as well as standards for self-regulation and a code
of journalistic conduct;
VON HANNOVER v. GERMANY JUDGMENT 17
(ii) promote the inclusion in journalism training programmes of a course in law,
highlighting the importance of the right to privacy vis--vis society as a whole;
(iii) foster the development of media education on a wider scale, as part of
education about human rights and responsibilities, in order to raise media users'
awareness of what the right to privacy necessarily entails;
(iv) facilitate access to the courts and simplify the legal procedures relating to press
offences, in order to ensure that victims' rights are better protected."
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
43. The applicant submitted that the German court decisions had
infringed her right to respect for her private and family life, guaranteed by
Article 8 of the Convention, which is worded as follows:
"1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others."
A. Submissions of the parties and interveners
1. The applicant
44. The applicant stated that she had spent more than ten years in
unsuccessful litigation in the German courts trying to establish her right to
the protection of her private life. She alleged that as soon as she left her
house she was constantly hounded by paparazzi who followed her every
daily movement, be it crossing the road, fetching her children from school,
doing her shopping, out walking, engaging in sport or going on holiday. In
her submission, the protection afforded to the private life of a public figure
like herself was minimal under German law because the concept of a
"secluded place" as defined by the Federal Court of Justice and the Federal
Constitutional Court was much too narrow in that respect. Furthermore, in
VON HANNOVER v. GERMANY JUDGMENT 18
order to benefit from that protection the onus was on her to establish every
time that she had been in a secluded place. She was thus deprived of any
privacy and could not move about freely without being a target for the
paparazzi. She affirmed that in France her prior agreement was necessary
for the publication of any photos not showing her at an official event. Such
photos were regularly taken in France and then sold and published in
Germany. The protection of private life from which she benefited in France
was therefore systematically circumvented by virtue of the decisions of the
German courts. On the subject of the freedom of the press, the applicant
stated that she was aware of the essential role played by the press in a
democratic society in terms of informing and forming public opinion, but in
her case it was just the entertainment press seeking to satisfy its readers'
voyeuristic tendencies and make huge profits from generally innocuous
photos showing her going about her daily business. Lastly, the applicant
stressed that it was materially impossible to establish in respect of every
photo whether or not she had been in a secluded place. As the judicial
proceedings were generally held several months after publication of the
photos, she was obliged to keep a permanent record of her every movement
in order to protect herself from paparazzi who might photograph her. With
regard to many of the photos that were the subject of this application, it was
impossible to determine the exact time and place at which they had been
taken.
2. The Government
45. The Government submitted that German law, while taking account
of the fundamental role of the freedom of the press in a democratic society,
contained sufficient safeguards to prevent any abuse and ensure the
effective protection of the private life of even public figures. In their
submission, the German courts had in the instant case struck a fair balance
between the applicant's rights to respect for her private life guaranteed by
Article 8 and the freedom of the press guaranteed by Article 10, having
regard to the margin of appreciation available to the State in this area. The
courts had found in the first place that the photos had not been taken in a
secluded place and had, subsequently, examined the limits on the protection
of private life, particularly in the light of the freedom of the press and even
where the publication of photos by the entertainment press was concerned.
The protection of the private life of a figure of contemporary society "par
excellence" did not require the publication of photos without his or her
authorisation to be limited to showing the person in question engaged in
their official duties. The public had a legitimate interest in knowing how the
person behaved generally in public. The Government submitted that this
definition of the freedom of the press by the Federal Constitutional Court
was compatible with Article 10 and the European Court's relevant case-law.
Furthermore, the concept of a secluded place was only one factor, albeit an
VON HANNOVER v. GERMANY JUDGMENT 19
important one, of which the domestic courts took account when balancing
the protection of private life against the freedom of the press. Accordingly,
while private life was less well protected where a public figure was
photographed in a public place, other factors could also be taken into
consideration, such as the nature of the photos, for example, which should
not shock the public. Lastly, the Government observed that the decision of
the Federal Court of Justice ­ which had held that the publication of photos
of the applicant with the actor Vincent Lindon in a restaurant courtyard in
Saint-Rémy-de-Provence were unlawful ­ showed that the applicant's
private life was protected even outside her home.
3. The interveners
46. The Association of German Magazine Publishers submitted that
German law, which was halfway between French law and United Kingdom
law, struck a fair balance between the right to protection of private life and
the freedom of the press. In its submission, it also complied with the
principles set out in Resolution 1165 of the Parliamentary Assembly of the
Council of Europe on the right to privacy and the European Court's caselaw,
which had always stressed the fundamental role of the press in a
democratic society. The public's legitimate interest in being informed was
not limited to politicians, but extended to public figures who had become
known for other reasons. The press's role of "watchdog" could not be
narrowly interpreted here. In that connection, account should also be taken
of the fact that the boundary between political commentary and
entertainment was becoming increasingly blurred. Given that there was no
uniform European standard concerning the protection of private life, the
State had a wide margin of appreciation in this area.
47. Burda joined the observations of the Association of German
Magazine Publishers and stated that German law required the courts to
balance the competing interests of informing the public and protecting the
right to control the use of one's image very strictly and on a case-by-case
basis. Even figures of contemporary society "par excellence" enjoyed a not
inconsiderable degree of protection, and recent case-law had even tended
towards reinforcing that protection. Since the death of her mother in 1982,
the applicant had officially been First Lady of the reigning family in
Monaco and was as such an example for the public (Vorbildfunktion).
Moreover, the Grimaldi family had always sought to attract media attention
and was therefore itself responsible for the public interest in it. The
applicant could not therefore, especially if account were taken of her official
functions, be regarded as a victim of the press. The publication of the photos
in question had not infringed her right to control the use of her image
because they had been taken while she was in public and had not been
damaging to her reputation.
VON HANNOVER v. GERMANY JUDGMENT 20
B. The Court's assessment
1. As regards the subject of the application
48. The Court notes at the outset that the photos of the applicant with her
children are no longer the subject of this application, as it stated in its
admissibility decision of 8 July 2003.
The same applies to the photos published in Freizeit Revue magazine
(issue no. 30 of 22 July 1993) showing the applicant with Vincent Lindon at
the far end of a restaurant courtyard in Saint-Rémy-de-Provence (see
paragraph 11 above). In its judgment of 19 December 1995, the Federal
Court of Justice prohibited any further publication of the photos on the
ground that they infringed the applicant's right to respect for her private life
(see paragraph 23 above).
49. Accordingly, the Court considers it important to specify that the
present application concerns the following photos, which were published as
part of a series of articles about the applicant:
(i) the photo published in Bunte magazine (issue no. 32 of 5 August
1993) showing the applicant on horseback (see paragraph 12 above)
(ii) the photos published in Bunte magazine (issue no. 34 of 19 August
1993) showing the applicant shopping on her own; with Mr Vincent Lindon
in a restaurant; alone on a bicycle; and with her bodyguard at a market (see
paragraph 13 above);
(iii) the photos published in Bunte magazine (issue no. 10 of
27 February 1997) showing the applicant on a skiing holiday in Austria (see
paragraph 14 above);
(iv) the photos published in Bunte magazine (issue no. 12 of 13 March
1997) showing the applicant with Prince Ernst August von Hannover and
alone leaving her Parisian residence (see paragraph 15 above);
(v) the photos published in Bunte magazine (issue no. 16 of 10 April
1997) showing the applicant playing tennis with Prince Ernst August von
Hannover and both of them putting their bicycles down (see paragraph 16
above);
(vi) the photos published in Neue Post magazine (issue no. 35/97)
showing the applicant tripping over an obstacle at the Monte Carlo Beach
Club (see paragraph 17 above).
2. Applicability of Article 8
50. The Court reiterates that the concept of private life extends to
aspects relating to personal identity, such as a person's name (see Burghartz
VON HANNOVER v. GERMANY JUDGMENT 21
v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28,
§ 24), or a person's picture (see Schüssel v. Austria (dec.), no. 42409/98,
21 February 2002).
Furthermore, private life, in the Court's view, includes a person's
physical and psychological integrity; the guarantee afforded by Article 8 of
the Convention is primarily intended to ensure the development, without
outside interference, of the personality of each individual in his relations
with other human beings (see, mutatis mutandis, Niemietz v. Germany,
judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29, and
Botta v. Italy, judgment of 24 February 1998, Reports of Judgments and
Decisions 1998-I, p. 422, § 32). There is therefore a zone of interaction of a
person with others, even in a public context, which may fall within the
scope of "private life" (see, mutatis mutandis, P.G. and J.H. v. the United
Kingdom, no. 44787/98, § 56, ECHR 2001-IX, and Peck v. the United
Kingdom, no. 44647/98, § 57, ECHR 2003-I).
51. The Court has also indicated that, in certain circumstances, a person
has a "legitimate expectation" of protection and respect for his or her private
life. Accordingly, it has held in a case concerning the interception of
telephone calls on business premises that the applicant "would have had a
reasonable expectation of privacy for such calls" (see Halford v. the United
Kingdom, judgment of 25 June 1997, Reports 1997-III, p. 1016, § 45).
52. As regards photos, with a view to defining the scope of the
protection afforded by Article 8 against arbitrary interference by public
authorities, the European Commission of Human Rights had regard to
whether the photographs related to private or public matters and whether the
material thus obtained was envisaged for a limited use or was likely to be
made available to the general public (see, mutatis mutandis, Friedl v.
Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the
Commission, p. 21, §§ 49-52; P.G. and J.H. v. the United Kingdom, cited
above, § 58; and Peck, cited above, § 61).
53. In the present case there is no doubt that the publication by various
German magazines of photos of the applicant in her daily life either on her
own or with other people falls within the scope of her private life.
3. Compliance with Article 8
(a) The domestic courts' position
54. The Court notes that, in its landmark judgment of 15 December
1999, the Federal Constitutional Court interpreted sections 22 and 23 of the
Copyright (Arts Domain) Act (see paragraphs 40-41 above) by balancing
the requirements of the freedom of the press against those of the protection
of private life, that is, the public interest in being informed against the
legitimate interests of the applicant. In doing so the Federal Constitutional
Court took account of two criteria under German law, one functional and
VON HANNOVER v. GERMANY JUDGMENT 22
the other spatial. It considered that the applicant, as a figure of
contemporary society "par excellence", enjoyed the protection of her private
life even outside her home but only if she was in a secluded place out of the
public eye to which persons retire "with the objectively recognisable aim of
being alone and where, confident of being alone, they behave in a manner in
which they would not behave in public". In the light of those criteria, the
Federal Constitutional Court held that the Federal Court of Justice's
judgment of 19 December 1995 regarding publication of the photos in
question was compatible with the Basic Law. The court attached decisive
weight to the freedom of the press, even the entertainment press, and to the
public interest in knowing how the applicant behaved outside her
representative functions (see paragraph 25 above).
55. Referring to its landmark judgment, the Federal Constitutional Court
did not entertain the applicant's appeals in the subsequent proceedings
brought by her (see paragraphs 32 and 38 above).
(b) General principles governing the protection of private life and the
freedom of expression
56. In the present case the applicant did not complain of an action by the
State, but rather of the lack of adequate State protection of her private life
and her image.
57. The Court reiterates that, although the object of Article 8 is
essentially that of protecting the individual against arbitrary interference by
the public authorities, it does not merely compel the State to abstain from
such interference: in addition to this primarily negative undertaking, there
may be positive obligations inherent in an effective respect for private or
family life. These obligations may involve the adoption of measures
designed to secure respect for private life even in the sphere of the relations
of individuals between themselves (see, mutatis mutandis, X and Y v. the
Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23;
Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299-B,
pp. 60-61, § 38; and Verliere v. Switzerland (dec.), no. 41953/98, ECHR
2001-VII). That also applies to the protection of a person's picture against
abuse by others (see Schüssel, cited above).
The boundary between the State's positive and negative obligations
under this provision does not lend itself to precise definition. The applicable
principles are, nonetheless, similar. In both contexts regard must be had to
the fair balance that has to be struck between the competing interests of the
individual and of the community as a whole; and in both contexts the State
enjoys a certain margin of appreciation (see, among many other authorities,
Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49,
and Botta, cited above, p. 427, § 33).
58. That protection of private life has to be balanced against the freedom
of expression guaranteed by Article 10 of the Convention.
VON HANNOVER v. GERMANY JUDGMENT 23
In that context, the Court reiterates that freedom of expression constitutes
one of the essential foundations of a democratic society. Subject to
paragraph 2 of Article 10, it is applicable not only to "information" or
"ideas" that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or disturb. Such
are the demands of that pluralism, tolerance and broadmindedness without
which there is no "democratic society" (see Handyside v. the United
Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49).
In that connection, the press plays an essential role in a democratic
society. Although it must not overstep certain bounds, in particular in
respect of the reputation and rights of others, its duty is nevertheless to
impart ­ in a manner consistent with its obligations and responsibilities information
and ideas on all matters of public interest (see, among many
authorities, Observer and Guardian v. the United Kingdom, judgment of
26 November 1991, Series A no. 216, pp. 29-30, § 59, and Bladet Troms
and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III).
Journalistic freedom also covers possible recourse to a degree of
exaggeration, or even provocation (see Prager and Oberschlick v. Austria,
judgment of 26 April 1995, Series A no. 313, p. 19, § 38; Tammer v.
Estonia, no. 41205/98, §§ 59-63, ECHR 2001-I; and Prisma Presse v.
France (dec.), nos. 66910/01 and 71612/01, 1 July 2003).
59. Although freedom of expression also extends to the publication of
photos, this is an area in which the protection of the rights and reputation of
others takes on particular importance. The present case does not concern the
dissemination of "ideas", but of images containing very personal or even
intimate "information" about an individual. Furthermore, photos appearing
in the tabloid press are often taken in a climate of continual harassment
which induces in the person concerned a very strong sense of intrusion into
their private life or even of persecution.
60. In the cases in which the Court has had to balance the protection of
private life against freedom of expression, it has always stressed the
contribution made by photos or articles in the press to a debate of general
interest (see, as a recent authority, Tammer, cited above, §§ 59 et seq.; News
Verlags GmbH & Co. KG v. Austria, no. 31457/96, §§ 52 et seq., ECHR
2000-I; and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 33
et seq., 26 February 2002). The Court thus found, in one case, that the use
of certain terms in relation to an individual's private life was not "justified
by considerations of public concern" and that those terms did not "[bear] on
a matter of general importance" (see Tammer, cited above, § 68) and went
on to hold that there had not been a violation of Article 10. In another case,
however, the Court attached particular importance to the fact that the subject
in question was a news item of "major public concern" and that the
published photographs "did not disclose any details of [the] private life" of
the person in question (see Krone Verlag GmbH & Co. KG, cited above,
VON HANNOVER v. GERMANY JUDGMENT 24
§ 37) and held that there had been a violation of Article 10. Similarly, in a
recent case concerning the publication by President Mitterrand's former
private doctor of a book containing revelations about the President's state of
health, the Court held that "the more time that elapsed, the more the public
interest in discussion of the history of President Mitterrand's two terms of
office prevailed over the requirements of protecting the President's rights
with regard to medical confidentiality" (see Editions Plon v. France,
no. 58148/00, § 53, ECHR 2004-IV) and held that there had been a breach
of Article 10.
(c) Application of these general principles by the Court
61. The Court notes at the outset that in the present case the photos of
the applicant in the various German magazines show her in scenes from her
daily life, thus involving activities of a purely private nature such as
engaging in sport, out walking, leaving a restaurant or on holiday. The
photos, in which the applicant appears sometimes alone and sometimes in
company, illustrate a series of articles with such innocuous titles as "Pure
happiness", "Caroline... a woman returning to life", "Out and about with
Princess Caroline in Paris" and "The kiss. Or: they are not hiding anymore"
(see paragraphs 11-17 above).
62. The Court also notes that the applicant, as a member of the Prince of
Monaco's family, represents the ruling family at certain cultural or
charitable events. However, she does not exercise any function within or on
behalf of the State of Monaco or any of its institutions (see paragraph 8
above).
63. The Court considers that a fundamental distinction needs to be made
between reporting facts ­ even controversial ones ­ capable of contributing
to a debate in a democratic society relating to politicians in the exercise of
their functions, for example, and reporting details of the private life of an
individual who, moreover, as in this case, 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 (see Observer and Guardian, loc. cit.), it
does not do so in the latter case.
64. Similarly, although the public has a right to be informed, which is an
essential right in a democratic society that, in certain special circumstances,
can even extend to aspects of the private life of public figures, particularly
where politicians are concerned (see Editions Plon, loc. cit.), this is not the
case here. The situation here does not come within the sphere of any
political or public debate because the published photos and accompanying
commentaries relate exclusively to details of the applicant's private life.
65. As in other similar cases it has examined, the Court considers that
the publication of the photos and articles in question, the sole purpose of
VON HANNOVER v. GERMANY JUDGMENT 25
which was to satisfy the curiosity of a particular readership regarding the
details of the applicant's private life, cannot be deemed to contribute to any
debate of general interest to society despite the applicant being known to the
public (see, mutatis mutandis, Campmany y Diez de Revenga and Lopez
Galiacho Perona v. Spain (dec.), no. 54224/00, ECHR 2000-XII; Julio Bou
Gibert and El Hogar Y La Moda J.A. v. Spain (dec.), no. 14929/02, 13 May
2003; and Prisma Presse, cited above).
66. In these conditions freedom of expression calls for a narrower
interpretation (see Prisma Presse, cited above, and, by converse
implication, Krone Verlag GmbH & Co. KG, cited above, § 37).
67. In that connection, the Court also takes account of the resolution of
the Parliamentary Assembly of the Council of Europe on the right to
privacy, which stresses the "one-sided interpretation of the right to freedom
of expression" by certain media which attempt to justify an infringement of
the rights protected by Article 8 of the Convention by claiming that "their
readers are entitled to know everything about public figures" (see
paragraph 42 above, and Prisma Presse, cited above).
68. The Court finds another point to be of importance: even though,
strictly speaking, the present application concerns only the publication of
the photos and articles by various German magazines, the context in which
these photos were taken ­ without the applicant's knowledge or consent and
the harassment endured by many public figures in their daily lives
cannot be fully disregarded (see paragraph 59 above).
In the present case this point is illustrated in particularly striking fashion
by the photos taken of the applicant at the Monte Carlo Beach Club tripping
over an obstacle and falling down (see paragraph 17 above). It appears that
these photos were taken secretly at a distance of several hundred metres,
probably from a neighbouring house, whereas journalists' and
photographers' access to the club was strictly regulated (see paragraph 33
above).
69. 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 ­ as stated above ­ 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 (see paragraph 51 above and, mutatis mutandis, Halford, cited
above, p. 1016, § 45).
70. Furthermore, increased vigilance in protecting private life is
necessary to contend with new communication technologies which make it
possible to store and reproduce personal data (see point 5 of the
Parliamentary Assembly's resolution on the right to privacy, paragraph 42
above, and, mutatis mutandis, Amann v. Switzerland [GC], no. 27798/95,
§§ 65-67, ECHR 2000-II; Rotaru v. Romania [GC], no. 28341/95, §§ 43-44,
VON HANNOVER v. GERMANY JUDGMENT 26
ECHR 2000-V; P.G. and J.H. v. the United Kingdom, cited above,
§§ 57-60; and Peck, cited above, §§ 59-63 and 78). This also applies to the
systematic taking of specific photos and their dissemination to a broad
section of the public.
71. Lastly, the Court reiterates that the Convention is intended to
guarantee not rights that are theoretical or illusory but rights that are
practical and effective (see Artico v. Italy, judgment of 13 May 1980,
Series A no. 37, pp. 15-16, § 33).
72. The Court finds it hard to agree with the domestic courts'
interpretation of section 23(1) of the Copyright (Arts Domain) Act, which
consists in describing a person as such as a figure of contemporary society
"par excellence". Since that definition affords the person very limited
protection of their private life or the right to control the use of their image, it
could conceivably be appropriate for politicians exercising official
functions. However, it cannot be justified for a "private" individual, such as
the applicant, in whom the interest of the general public and the press is
based solely on her membership of a reigning family, whereas she herself
does not exercise any official functions.
In any event the Court considers that, in these conditions, the Act has to
be interpreted narrowly to ensure that the State complies with its positive
obligation under the Convention to protect private life and the right to
control the use of one's image.
73. Lastly, the distinction drawn between figures of contemporary
society "par excellence" and "relatively" public figures has to be clear and
obvious so that, in a State governed by the rule of law, the individual has
precise indications as to the behaviour he or she should adopt. Above all,
they need to know exactly when and where they are in a protected sphere or,
on the contrary, in a sphere in which they must expect interference from
others, especially the tabloid press.
74. The Court therefore considers that the criteria on which the domestic
courts based their decisions were not sufficient to protect the applicant's
private life effectively. As a figure of contemporary society "par
excellence" she cannot ­ in the name of freedom of the press and the public
interest ­ rely on protection of her private life unless she is in a secluded
place out of the public eye and, moreover, succeeds in proving it (which can
be difficult). Where that is not the case, she has to accept that she might be
photographed at almost any time, systematically, and that the photos are
then very widely disseminated even if, as was the case here, the photos and
accompanying articles relate exclusively to details of her private life.
75. In the Court's view, the criterion of spatial isolation, although
apposite in theory, is in reality too vague and difficult for the person
concerned to determine in advance. In the present case, merely classifying
the applicant as a figure of contemporary society "par excellence" does not
suffice to justify such an intrusion into her private life.
VON HANNOVER v. GERMANY JUDGMENT 27
(d) Conclusion
76. As the Court has stated above, it considers that the decisive factor in
balancing the protection of private life against freedom of expression should
lie in the contribution that the published photos and articles make to a
debate of general interest. It is clear in the instant case that they made no
such contribution, since the applicant exercises no official function and the
photos and articles related exclusively to details of her private life.
77. Furthermore, the Court considers 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 and despite the fact that she is well known to the
public.
Even if such a public interest exists, as does a commercial interest of the
magazines in publishing these photos and these articles, in the instant case
those interests must, in the Court's view, yield to the applicant's right to the
effective protection of her private life.
78. Lastly, in the Court's opinion the criteria established by the domestic
courts were not sufficient to ensure the effective protection of the
applicant's private life and she should, in the circumstances of the case,
have had a "legitimate expectation" of protection of her private life.
79. Having regard to all the foregoing factors, and despite the margin of
appreciation afforded to the State in this area, the Court considers that the
German courts did not strike a fair balance between the competing interests.
80. There has therefore been a breach of Article 8 of the Convention.
81. Having regard to that finding, the Court does not consider it
necessary to rule on the applicant's complaint relating to her right to respect
for her family life.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
82. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party."
83. The applicant claimed 50,000 euros (EUR) for non-pecuniary
damage on the ground that the German courts' decisions prevented her from
leading a normal life with her children without being hounded by the media.
She also claimed EUR 142,851.31 in reimbursement of her costs and
VON HANNOVER v. GERMANY JUDGMENT 28
expenses for the many sets of proceedings she had had to bring in the
German courts.
84. The Government contested the amounts claimed. As regards nonpecuniary
damage, they reiterated that, under German law, the applicant
enjoyed protection of her private life even outside her home, particularly
where her children were concerned. With regard to costs and expenses, they
submitted that not all the proceedings could be taken into account, that the
value of parts of the subject matter was less than the amount stated, and that
the legal fees being claimed, in view of the amount concerned, could not be
reimbursed.
85. The Court considers that the question of the application of Article 41
is not ready for decision. Accordingly, it shall be reserved and the
subsequent procedure fixed having regard to any agreement which might be
reached between the Government and the applicant.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 8 of the Convention;
2. Holds that the question of the application of Article 41 is not ready for
decision; and accordingly,
(a) reserves the said question in whole;
(b) invites the Government and the applicant to submit, within six
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, their written observations on the
matter and, in particular, to notify the Court of any agreement that they
may reach;
(c) reserves the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in French, and delivered at a public hearing in the Human Rights
Building, Strasbourg, on 24 June 2004.
Vincent BERGER Ireneu CABRAL BARRETO
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following separate opinions are annexed to this
judgment:
(a) concurring opinion of Mr Cabral Barreto;
(b) concurring opinion of Mr Zupančič.
VON HANNOVER v. GERMANY JUDGMENT 29
I.C.B.
V.B.
VON HANNOVER v. GERMANY JUDGMENT 30
CONCURRING OPINION OF JUDGE CABRAL BARRETO
(Translation)
I am of the opinion that there has been a violation of Article 8 of the
Convention, but am unable to follow the entire reasoning of the majority.
1. My colleagues state in their conclusions that "the decisive factor in
balancing the protection of private life against freedom of expression should
lie in the contribution that the published photos and articles make to a
debate of general interest" and 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 and she is well known to the public".
In the majority's view the publication of the photos and articles in
question was not such as to contribute to a debate of general interest
because the applicant was not performing official functions and the
published photos and accompanying commentaries related exclusively to
details of her private life.
In my view, however, the applicant is a public figure and the public does
have a right to be informed about her life.
The solution therefore needs to be found in the fair balance that has to be
struck between the applicant's right to her private life and the public's right
to be informed.
2. The applicant is a public figure, even if she does not perform any
function within or on behalf of the State of Monaco or any of its institutions.
"Public figures are persons holding public office and/or using public
resources and, more broadly speaking, all those who play a role in public
life, whether in politics, the economy, the arts, the social sphere, sport or in
any other domain" ­ paragraph 7 of Resolution 1165 (1998) of the
Parliamentary Assembly of the Council of Europe on the right to privacy
(see paragraph 42 of the judgment).
It is well known that the applicant has for years played a role in
European public life, even if she does not perform any official functions in
her own country.
To measure the degree of public interest in her, it is sufficient to look at
the amount of media coverage devoted to her public or private life.
Very recently the press drew attention to the fact that, on her arrival at
the ceremony of the marriage of Crown Prince Felipe of Spain, the applicant
was one of the people from Europe's and the world's high society to be the
most widely greeted by the public.
The applicant is, in my view, a public figure and information about her
life contributes to a debate of general interest.
The general interest does not have to be limited to political debate. As
pointed out by the Parliamentary Assembly, "certain facts relating to the
VON HANNOVER v. GERMANY JUDGMENT ­ 31
CONCURRING OPINION OF JUDGE CABRAL BARRETO
private lives of public figures, particularly politicians, may indeed be of
interest to citizens ...".
If that is true of politicians it is also true of all other public figures in
whom the public takes an interest.
It is therefore necessary to strike a balance between two fundamental
rights: the right of public figures to respect for their private life and
everyone's right to freedom of expression, which embraces the right of the
public to be informed.
I agree with the majority that the private life of a public figure does not
stop at their front door.
However, it has to be acknowledged that, in view of their fame, a public
figure's life outside their home, and particularly in public places, is
inevitably subject to certain constraints.
Fame and public interest inevitably give rise to a difference in treatment
of the private life of an ordinary person and that of a public figure.
As the Federal Constitutional Court pointed out, "the public has a
legitimate interest in being allowed to judge whether the personal behaviour
of the individuals in question, who are often regarded as idols or role
models, convincingly tallies with their behaviour on their official
engagements".
Admittedly, determining the limit of a public figure's private life is no
easy task.
Furthermore, a strict criterion might lead to solutions that do not
correspond to the "nature of things".
It is clear that if the person is in an isolated spot everything that happens
there must be covered by the protection of private life.
It appears to me, however, that the criterion of spatial isolation used by
the German courts is very restrictive.
In my view, whenever a public figure has a "legitimate expectation" of
being safe from the media, his or her right to private life prevails over the
right to freedom of expression or the right to be informed.
It will never be easy to define in concrete terms the situations that
correspond to this "legitimate expectation" and a case-by-case approach is
therefore justified.
This casuistic approach may also give rise to differences of opinion.
The majority attach importance, for example, to the fact that the photos
at the Monte Carlo Beach Club had been taken secretly.
I do not dispute the need to take account of the fact that the photos were
taken from a distance, particularly if the person was somewhere they could
legitimately believe did not expose them to public view.
However, the Beach Club swimming pool was an open place frequented
by the general public and, moreover, visible from the neighbouring
buildings.
VON HANNOVER v. GERMANY JUDGMENT ­ 32
CONCURRING OPINION OF JUDGE CABRAL BARRETO
Is it possible in such a place to entertain a reasonable expectation of not
being exposed to public view or to the media?
I do not think so.
I believe that this same criterion is valid for photos showing the applicant
in other situations in her daily life in which she cannot expect her private
life to be protected.
I have in mind the photos of her doing her shopping.
However, other photos ­ for example those of the applicant on horseback
or playing tennis ­ were taken in places and circumstances that would call
for the opposite approach.
It is thus in the knowledge of the limits to the exercise (I refer in this
connection to Judge Zupančič's opinion) that I have found a violation of
Article 8 of the Convention.
VON HANNOVER v. GERMANY JUDGMENT 33
CONCURRING OPINION OF JUDGE ZUPANČIČ
I adhere to the hesitations raised by my colleague, Judge Cabral Barreto.
And while I find the distinctions between the different levels of permitted
exposure, as defined by the German legal system, too Begriffsjurisprudenzlike,
I nevertheless believe that the balancing test between the public's right
to know on the one hand and the affected person's right to privacy on the
other hand must be adequately performed. He who willingly steps onto the
public stage cannot claim to be a private person entitled to anonymity.
Royalty, actors, academics, politicians, etc. perform whatever they perform
publicly. They may not seek publicity, yet, by definition, their image is to
some extent public property.
Here I intend to concentrate not so much on the public's right to know this
applies first and foremost to the issue of the freedom of the press and
the constitutional doctrine concerning it ­ but rather on the simple fact that
it is impossible to separate by an iron curtain private life from public
performance. The absolute incognito existence is the privilege of Robinson;
the rest of us all attract to a greater or smaller degree the interest of other
people.
Privacy, on the other hand, is the right to be left alone. One has the right
to be left alone precisely to the degree to which one's private life does not
intersect with other people's private lives. In their own way, legal concepts
such as libel, defamation, slander, etc. testify to this right and to the limits
on other people's meddling with it. The German private-law doctrine of
Persönlichkeitsrecht testifies to a broader concentric circle of protected
privacy. Moreover, I believe that the courts have to some extent and under
American influence made a fetish of the freedom of the press. The
Persönlichkeitsrecht doctrine imparts a higher level of civilised
interpersonal deportment.
It is time that the pendulum swung back to a different kind of balance
between what is private and secluded and what is public and unshielded.
The question here is how to ascertain and assess this balance. I agree
with the outcome of this case. However, I would suggest a different
determinative test: the one we have used in Halford v. the United Kingdom
(judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III),
which speaks of "reasonable expectation of privacy".
The context of criminal procedure and the use of evidence obtained in
violation of the reasonable expectation of privacy in Halford do not prevent
us from employing the same test in cases such as the one before us. The
dilemma as to whether the applicant here was or was not a public figure
ceases to exist; the proposed criterion of reasonable expectation of privacy
permits a nuanced approach to every new case. Perhaps this is what Judge
VON HANNOVER v. GERMANY JUDGMENT ­ 34
CONCURRING OPINION OF JUDGE ZUPANČIČ
Cabral Barreto has in mind when he refers to the emerging case-law
concerning the balancing exercise between the public's right to know and
the private person's right to shield him- or herself.
Of course, one must avoid a circular reasoning here. The
"reasonableness" of the expectation of privacy could be reduced to the
aforementioned balancing test. But reasonableness is also an allusion to
informed common sense, which tells us that he who lives in a glass house
may not have the right to throw stones.