Introduction - Article 8

Privacy and Personality Rights in Comparative PerspectivePrivacy and Personality Under the European Convention on Human RightsProfessor Ansgar Ohly and Dr Huw Beverley-SmithCambridge, 11 February 2006

Introduction - Article 8 • Everyone has the right to respect for his private and family life, his home and his correspondence. • There shall be no interference by a public authority with the exercise of this right except such as 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. Ohly Privacy and Personality Rights Cambridge, 11 February 2006

Introduction - Article 8 (continued) • Mainly concerned with state intrusion into an individual’s private and family life • Human Rights Act 1998 • No direct horizontal effect and no cause of action against private individuals for breach of Convention rights • Indirect effect in interpreting existing causes of action in a way which is compatible with Convention values (Campbell v MGN Ltd (2004)) • Requires a generous approach to situations in which privacy is protected, while maintaining a balance with freedom of expression (A v B plc (2002)) Ohly Privacy and Personality Rights Cambridge, 11 February 2006

Introduction - ‘Private Life’ • Interpreted broadly and covers: • right to establish and develop relationships with others ‘for the development and fulfilment of one’s own personality’, (X v Iceland (1976)) • activities of a professional or business nature (Niemietz v Germany (1993)) • physical and moral integrity (Costello-Roberts v United Kingdom (1995)) • aspects of personal sexuality (Dudgeon v United Kingdom (1982)) • personal or private space (Chappell v United Kingdom (1990)) • personal identity (Von Hannover v Germany (2004); Burghartz v Switzerland (1994)) • surveillance and personal information (Malone v United Kingdom (1985)) Ohly Privacy and Personality Rights Cambridge, 11 February 2006

Introduction - Article 10 • Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. Ohly Privacy and Personality Rights Cambridge, 11 February 2006

Introduction - Article 10 • 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Ohly Privacy and Personality Rights Cambridge, 11 February 2006

Article 10 (continued) • one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment (Nilsen and Johnsen v Norway (2000)) • no formal hierarchy of rights • political expression • artistic expression • commercial expression Ohly Privacy and Personality Rights Cambridge, 11 February 2006

Introduction - Appropriation of Personality Under Article 8 • taking and use of photographs by public authorities such as the police • circumstances in which the photographs were taken • the purpose for which the photographs were taken and subsequently used (X v United Kingdom) • striking a balance between the general interest of the community and the interests of the individual (Cossey v United Kingdom (1990)) • justifying invasion of privacy on the basis of prevention of disorder or crime (Murray v United Kingdom (1995)) Ohly Privacy and Personality Rights Cambridge, 11 February 2006

1. Von Hannover v Germany – the facts • Von Hannover v Germany - the facts • Issue: does Germany have to prevent the publication of press photographs showing Princess Caroline in the course of private activities in public? • Paparazzi photographs taken in France or Monaco • published by the German yellow press • showing the Princess while shopping, cycling, skiing, horse riding or while relaxing in the Monte Carlo Beach Club. Ohly Privacy and Personality Rights Cambridge, 11 February 2006

1. Von Hannover v Germany - the facts • Examples: Relaxing in the Monte Carlo Beach Club • Sporting activities Ohly Privacy and Personality Rights Cambridge, 11 February 2006

2. The German judgments • Starting points • Principle: a person’s portrait may only be published with the person’s consent (§ 22 KUG) • Exception: pictures from the sphere of contemporary history (§ 23 (1) KUG) • Distinction: “absolute persons of contemporary history” – “relative persons of contemporary history” – everyone else • Counter-exception: no publication where legitimate personality interests would be violated (§ 23 (2) KUG) • Constitutional rights do not constitute causes of action, but have to be taken into account when interpreting §§ 22, 23 KUG. • Personality right (articles 1, 2 Basic Law) • Freedom of press and right to free speech (article 5 Basic Law) Ohly Privacy and Personality Rights Cambridge, 11 February 2006

2. The German Judgments • The German judgments • Landgericht (District Court) and Oberlandesgericht (Court of Appeal) Hamburg • Caroline = absolute person of contemporary history • Private sphere stops at front door • Bundesgerichtshof (Federal Supreme Court) • Private sphere does not stop at front door but also extends to places which are publicly accessible but hidden from the public eye • → no publication of photographs showing Princess with her partner in secluded part of garden restaurant • Bundesverfassungsgericht (Constitutional Court) • No publication of photographs showing children (article 6: respect for family life) • Supreme Court Decision takes proper account of balance between personality protection and right to free speech Ohly Privacy and Personality Rights Cambridge, 11 February 2006

2. The ECHR judgment Principles • Article 8 (respect for private life) • Protects against state interference • But also positive obligation to protect citizens against interference by other individuals • Has to be balanced against freedom of expression (article 10) • Press plays essential role in democratic society • Relevance of contribution made to debate of general interests Ohly Privacy and Personality Rights Cambridge, 11 February 2006

2. The ECHR judgment Application of principles (1) • fundamental distinction between reporting facts capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions and reporting details of the private life of an individual who does not exercise official functions • publication of photos and articles, the sole purpose of which is 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 Ohly Privacy and Personality Rights Cambridge, 11 February 2006

2. The ECHR judgment Application of principles (2) • Pictures can contain personal or even intimate information. • Harassment endured by Princess must be taken into account. • Increased vigilance is necessary to contend with new communication technologies. • German notion of “figure of contemporary society ‘par excellence’” only appropriate for politicians exercising official functions. • Dissenting opinion Judge Cabral Barreto: • General interest not limited to political debate • Fame gives rise to difference in treatment between ordinary persons and public figures Ohly Privacy and Personality Rights Cambridge, 11 February 2006

3. Criticism and consequences Criticism • Balance between privacy and freedom of press ill-conceived • Distinction between politicians exercising their function and private persons unduly limits public debate to political debate • Elitist view of what judges think should be of public interest • Role of the European Court • Judgment ignores range of different attitudes towards role of press prevailing in Europe • Reasoned judgment of a national supreme court in a delicately balanced question would have deserved more respect • Harmonisation through back door • The Beach Club: hard cases make bad law Ohly Privacy and Personality Rights Cambridge, 11 February 2006

3. Criticism and consequences Possible consequences • Legal systems which have “tort of privacy” or “right to one’s image”: • Basic principles can remain in place • Balance between private sphere and public domain must be struck differently • Legal systems which do not acknowledge right of privacy or personality • Protection against publication must not be limited to confidential information … • … but must be extended to personal information (including pictures) which is in the public domain. • Readers will not be permitted to see what a celebrity “looks like when she pops out to the shops for a bottle of milk” (Campbell v MGN per Baroness Hale of Richmond) Ohly Privacy and Personality Rights Cambridge, 11 February 2006

Introduction - Article 8