From time to time, we comment on developments outside of Canada that may be of interest or relevance to the topics discussed in this blog.
On February 7, 2012, the the Grand Chamber of the European Court of Human Rights issued two decisions (Axel Springer AG v Germany; von Hannover v Germany) involving the balancing of privacy interests and freedom of expression, each of which are protected under the European Convention on Human Rights (“ECHR”).
Article 8 of the ECHR provides that “Everyone has the right to respect for his private and family life …” Article 10 of the ECHR provides that “Everyone has the right to freedom of expression.” Article 10 further provides that freedom of expression includes the freedom “to receive and impart information and ideas.” However, freedom of expression is subject to responsibilities and, therefore, may be restricted “for the protection of the reputation or rights of others …”
The two cases before the European Court of Human Rights concerned well-known personalities who had argued that their privacy rights had been infringed by the publication of photographs and associated stories about them. In one case, the German court had prohibited publication. In the other case, the German court had not prohibited publication. The question for the European Court was whether Germany had fulfilled its obligations under the ECHR in protecting the interests of the parties.
Following previous jurisprudence, the European Court recognized that a person’s image constitutes personal information since it reveals the person’s unique characteristics. Therefore, Article 8 of the ECHR protects the right to control the use of a person’s image, including the right to refuse publication of that image. This right is not obliterated simply because the person is known to the public. Also following prior jurisprudence, the European Court held that freedom of expression is essential to a democratic society and protects information and ideas that may be offensive.
In assessing whether Germany had balanced these competing human rights, the European Court stated that the following factors are relevant. I have grouped related factors for convenience of exposition.
(1) Contribution to a public debate of general interest. A key factor in balancing the these human rights is whether the photograph or article contributes to a public debate of a matter of general interest. This factor is more easily met if the person that is the subject of the photo or article has a role or function that is appropriate for debate in a democratic society. The European Court held that a private individual unknown to the public is more likely to have a claim protection of his or her right to private life. By contrast, the role of the press as a “public watchdog” means that a public official will be exposed to scrutiny unless the material relates exclusively to details of the person’s private life and the publication of that material is simply to satisfy public curiosity.
(2) The conduct of the person with respect to protecting privacy. The European Court concluded that an individual may have diminished expectations of privacy as a result of the individual’s own conduct. The mere fact of having cooperated with the press on previous occasions will not result in the waiver of right to privacy. However, the extent to which the person has willingly opened his or her life to public scrutiny will be a factor in assessing the person’s legitimate expectations of privacy.
(3) The context in which the photographs were taken and the content, form and consequences of publication. The European Court recognizes the importance of context. Photos obtained by illicit activity may fair less well when balancing freedom of expression against privacy interests. In addition, the manner in which the person is represented, the form of publication and the extent of circulation are relevant to balancing the two freedoms. As the European Court noted, a photograph of an otherwise unknown person may be more damaging than an article.
In the result, the European Court held that freedom of expression trumped the right to privacy of these personalities. In the Axel Springer AG case, the photograph and article were damaging but the information was already public and the person involved had previously spoken to the press about his private life. In the von Hannover case, the photograph was not damaging and the accompanying articles contributed to a debate of general interest.
The New York Times has published an Associated Press report on the background facts underlying the cases.
