In
a decision of 16 June 2008 (no. 1 BvR 1622/07) a three-judge panel of
the Federal Constitutional Court declined, without giving reasons, to
entertain a constitutional appeal lodged by the second applicant.
II. RELEVANT DOMESTIC AND EUROPEAN LAW
A. The Basic Law
The relevant provisions of the Basic Law provide 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
“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 via
the radio, television and cinema shall be guaranteed. There shall be
no censorship.
These rights shall be subject to the limitations laid
down by the provisions of the general laws and to statutory
provisions for the protection of young people and to the obligation
to respect personal honour [Recht der persönlichen Ehre].”
B. The Copyright (Arts Domain) Act
Section
22(1) of the Copyright (Arts Domain) Act (Gesetz betreffend das
Urheberrecht an Werken der bildenden Künste und der
Photographie) provides that images can only be disseminated with
the express consent of the person concerned. Section 23(1)(1) of the
Act provides for exceptions to that rule, 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
The
relevant passages of this resolution, adopted by the Parliamentary
Assembly of the Council of Europe on 26 June 1998, read 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 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.
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.
...”
D. Resolution of the Committee of Ministers on the
execution of the Von Hannover judgment (no. 59320/00) of 24
June 2004
The
Resolution of the Committee of Ministers (CM/ResDH(2007)124),
including the appendix (extracts), adopted on 31 October 2007 at
the 1007th meeting of the Ministers’ Deputies, is
worded as follows:
“The Committee of Ministers, under the terms of
Article 46, paragraph 2, of the Convention for the Protection of
Human Rights and Fundamental Freedoms, which provides that the
Committee supervises the execution of final judgments of the European
Court of Human Rights (hereinafter “the Convention” and
“the Court”);
Having regard to the judgments transmitted by the Court
to the Committee once they had become final;
Recalling that the violation of the Convention found by
the Court in this case concerns a breach of the right to respect for
private life of the applicant, Princess Caroline von Hannover, the
eldest daughter of Prince Rainier III of Monaco, on account of the
German courts’ refusal of her requests to prohibit publication
of a series of photographs of her (see details in Appendix);
Having invited the government of the respondent state to
inform the Committee of the measures taken to comply with Germany’s
obligation under Article 46, paragraph 1, of the Convention to
abide by the judgment;
Having examined the information provided by the
government in accordance with the Committee’s Rules for the
application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set,
the respondent state paid the applicant the just satisfaction
provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court
requires, over and above the payment of just satisfaction awarded in
the judgment, the adoption by the respondent state, where
appropriate, of
- individual measures to put an end to the violations
and erase their consequences so as to achieve as far as possible
restitutio in integrum; and
- general measures, preventing similar violations;
DECLARES, having examined the measures taken by the
respondent state (see Appendix), that it has exercised its functions
under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2007)124
Information about the measures to comply with the
judgment in the case of
...
I. Payment of just satisfaction and individual
measures
...
b) Individual measures
Although it is possible under German law, the applicant
did not take action to prevent further publication of the photographs
in question after the European Court’s judgment, but took
action against a similar photograph (see under “General
Measures”, No. 4) below. According to information available to
the Secretariat, the photographs at issue in the European Court’s
judgment have not been reprinted by the German press.
II. General measures
- Publication and dissemination of the judgment of the
European Court: The judgment has been widely published and discussed
by the German legal community. As is the case with all judgments of
the European Court against Germany it is publicly available via the
website of the Federal Ministry of Justice (www.bmj.de, Themen:
Menschenrechte, EGMR) which provides a direct link to the Court’s
website for judgments in German
(www.coe.int/T/D/Menschenrechtsgerichtshof/
Dokumente_auf_Deutsch/).
Furthermore, the judgment was disseminated by letter of the
Government Agent to the courts and justice authorities concerned.
- Change of domestic case law: When deciding upon
similar cases, domestic courts have taken into account the judgment
of the European Court, thus giving it direct effect in German law:
1) The partner of a famous singer
successfully sued at the Berlin Court of Appeal (KG Urt. v.
29.10.2004, 9 W 128/04, Neue Juristische Wochenschrift, NJW,
2005, p. 605- 607).
2) The Convention’s principles as set
out in the European Court’s judgments were also acknowledged,
even though they were not directly relevant to the case, in a
judgment of the Hamburg District Court forbidding commercial
exploitation of the popularity of former Chancellor Schröder (AG
Hamburg, Urt. v. 2.11.2004, 36A C 184/04, NJW-RR 2005, p.
196 - 198).
3) On the basis of the judgment of the
European Court, the German Federal Civil Court upheld a judgment
allowing the publication of an article about fining the applicant’s
husband for speeding on a French motorway. The Court stated that the
public had a justified interest in this information as it constitutes
an offence, making this behaviour the topic of a public discussion
(BGH, Urt. v. 15.11.2005, VI ZR 286/04, available via
www.bundesgerichtshof.de).
4) Concerning the applicant herself, in July
2005, the regional court of Hamburg (Landgericht), referring
to the judgment of the European Court, decided in favour of the
applicant, prohibiting the publication of a photograph showing her
together with her husband in a St. Moritz street during a skiing
holiday. However, in December 2005, the 2nd instance (Appeal
Court of Hamburg, Oberlandesgericht) reversed this decision,
basing its judgment rather on the case-law of the German Federal
Constitutional Court (Bundesverfassungsgericht). Upon revision
to the Federal Civil Court (Bundesgerichtshof) sought by the
applicant, the Federal Civil Court on 6 March 2007 decided that the
photograph in question may be published. In its reasoning the
domestic court, balancing the different interests at stake,
explicitly took into account the Convention’s requirements as
set out in the European Court’s judgment (BGH, Urt. v.
6.3.2007, VI ZR 14/06 available via www.bundesgerichtshof.de)
... .”
THE LAW
I. DISJOINDER OF THE APPLICATIONS
The
Court notes that before relinquishing jurisdiction in favour of the
Grand Chamber the Chamber had joined the present applications to
another application, Axel Springer AG v. Germany (no. 39954/08
– see paragraph 3 above). Having regard, however, to the nature
of the facts and the substantive issues raised in these cases, the
Grand Chamber considers it appropriate to disjoin application
no. 39954/08 from the present applications.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complained of the refusal by the German
courts to grant an injunction against any further publication of the
photo that had appeared on 20 February 2002 in the magazines Frau
im Spiegel, issue no. 9/02, and
Frau aktuell, issue no. 9/02. They alleged that there had been
a violation of their right to respect for their private life, as
guaranteed by Article 8 of the Convention, the relevant parts of
which read as follows:
“1. Everyone has the right to respect for his
private and family life ...
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 ... the protection of the rights and freedoms of
others.”
A. Admissibility
The
Court observes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 a) of the Convention. It
notes further that no other ground for declaring it inadmissible has
been established and that it must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
The
Government pointed out at the outset that there was no conflict
between the Federal Constitutional Court and the Court. They observed
that in its judgment of 14 October 2004 (Görgülü
judgment – no. 2 BvR 1481/04, Reports of
Judgments and Decisions of the Federal Constitutional Court no. 111,
p. 307), the Federal Constitutional Court had stated that there were
grounds for lodging a constitutional appeal before it where the
domestic court had failed to take sufficient account of the
Convention or of the Court’s case-law. They pointed out that in
the present cases the Federal Court of Justice and the Federal
Constitutional Court had taken the Court’s case-law into
consideration, particularly the Von Hannover judgment. It
could not therefore be alleged that there was an attitude of denial
on the part of the German courts; on the contrary, they had granted
far greater protection to personality rights than had been the case
in the past.
The
Government pointed out that the present applications related in
essence to only one photo. In their submission, whilst it was true
that the photos published on 20 February 2002, although not
identical, were apparently part of the same series, the fact remained
that from the point of view of an unbiased observer it was the same
photographic representation of the applicants, albeit in a different
size and format. The Government observed that in respect of the other
photos examined in the judgment of the Federal Constitutional Court
of 26 February 2008 either the Federal Court of Justice had upheld
the injunction on their publication or they were the subject of a
separate application before the Court. Other photos, mentioned by the
applicants in their observations, could not be taken into
consideration by the Court as the relevant domestic proceedings had
not yet been concluded.
The
Government submitted that up until the Von Hannover judgment
the German courts had used the hard and fast concept of “figure
of contemporary society par excellence”, which attracted
only limited protection under German law. Following the Von
Hannover judgment, the Federal Court of Justice had abandoned
that concept and developed a new concept of (graduated) protection
according to which it was henceforth necessary to show in respect of
every photo why there was an interest in publishing it. Furthermore,
under the new approach adopted by the Federal Court of Justice the
balancing of competing interests consisted in determining whether the
publication contributed to a public debate. The information value of
the publication was of particular importance in that respect. In sum,
the new case-law of the Federal Court of Justice, endorsed by the
Federal Constitutional Court, afforded greater weight to the
protection of personality rights, as evidenced by the fact that an
injunction was imposed on publication of two of the initial three
photos. Besides that, the photo in question and the articles
accompanying it could be clearly differentiated from the photos and
their commentaries that had been the subject of the Von Hannover
judgment.
The
Government contested the applicants’ allegation that, according
to the clear findings of the Court, the first applicant was a private
individual. The Court had in several judgments referred to her as a
public figure in order to differentiate her from a private individual
(Gurgenidze, cited above, § 40, 17 October 2006; Sciacca,
cited above, § 27; and Reklos and Davourlis v. Greece,
no.1234/05, § 38, 15 January 2009). In categorising the
applicants as public figures the German courts had merely followed
the Court’s case-law. As a member of a reigning dynasty, the
first applicant appeared in public at official functions in the
Principality. Moreover, she was the chair of the Princess
Grace Foundation, whose activities had been published by the
Monegasque authorities in the official yearbook of the Principality.
The
Government pointed out that the applicants had not complained before
the national courts about the circumstances in which the photos had
been taken, although those were factors which, as a general rule, the
courts duly took into account. In their submission, whilst the photos
in question had certainly been taken without the knowledge or consent
of the relevant parties, this did not mean that they had been taken
surreptitiously or in conditions unfavourable to the applicants.
The
Government argued that the special nature of certain cases, such as
the present ones, in which the domestic courts were required to
balance the rights and interests of two or more private individuals
lay in the fact that the proceedings before the Court were in fact a
continuation of the original legal action, with each party to the
domestic proceedings potentially able to apply to the Court. It was
precisely for that reason that one result alone of the balancing
exercise of the competing interests was insufficient, and that there
should be a “corridor” of solutions within the confines
of which the national courts should be allowed to give decisions in
conformity with the Convention. Failing that, the Court would have to
take the decision on every case itself, which could hardly be its
role. Consequently, it should limit the scope of its scrutiny and
intervene only where the domestic courts had not taken account of
certain specific circumstances when undertaking the balancing
exercise or where the result of that exercise was patently
disproportionate (see, for example, Cumpănă and Mazăre
v. Romania [GC], no. 33348/96, §§ 111 120,
ECHR 2004 XI). The Government argued that where the relationship
between State and citizen was concerned, a gain of freedom for the
individual concerned involved only a loss of competence for the
State, whereas in the relationship between two citizens the fact of
attaching more weight to the right of one of the persons concerned
restricted the right of the others, which was forbidden under Article
53 of the Convention. The scope of the Court’s scrutiny was
accordingly reduced in such cases.
The
Government highlighted the margin of appreciation enjoyed by the
State in the present case. That margin depended on the nature of the
activities in question and the aim pursued by the restrictions. In
its recent case-law, the Court had moreover left the State a broad
margin of appreciation in cases concerning Article 8 of the
Convention (A. v. Norway, no. 28070/06, § 66, 9
April 2009, and Armonienė v. Lithuania, no. 36919/02,
§ 38, 25 November 2008). Generally speaking, the margin enjoyed
by the States was broader where there was no European consensus. In
the Government’s submission, whilst there was admittedly a
trend towards harmonisation of the legal systems in Europe,
differences nevertheless remained, as evidenced by the failure of the
negotiations for the adoption of a regulation of the European Union
on conflict-of-law rules regarding non-contractual obligations
(Regulation EC No. 864/2007 of 11 July 2007 – Rome II
Regulation). The margin of appreciation was also broad where the
national authorities had to strike a balance between competing
private and public interests or Convention rights (Dickson v. the
United Kingdom [GC], no. 44362/04, § 78 ECHR 2007 XIII,
and Evans v. the United Kingdom [GC], no. 6339/05, §
77, ECHR 2007 I). Moreover, the case-law of the Court of Justice
of the European Union apparently took the same approach (cases of
Schmidberger of 12 June
2003, C-112/00, and Omega of 14 October 2004, C 36/02).
(b) The applicants
The
applicants wished to stress the context of the present applications.
Since the first applicant had lost her first husband in a tragic
accident in 1985 the media had realised that the story of the widow
and her three young children would sell well and provided a lucrative
market. Although it was illegal under the French Civil Code to take
or publish such photos in France, the applicants had nonetheless been
pursued by paparazzi who could sell the photos in other markets,
particularly in Germany. Whereas the public had never heard of the
second applicant before, he had also been pursued by paparazzi since
his marriage to the first applicant and the birth of their child. In
accordance with decisions of the German civil courts, upheld by the
Federal Constitutional Court in 1999, the applicants had been able to
oppose publication of such photos only where they were in a secluded
location, out of public view. The applicants had constantly been
aware of being observed, pursued and hounded and had therefore had
high hopes after the adoption of the Von Hannover judgment,
in which the Court had called into question the
case-law of the domestic courts. They had accordingly brought six
test cases regarding photos comparable to those that had been the
subject of the Von Hannover judgment. It would appear that the
German authorities had not been ready to follow that judgment,
however. This was evidenced both by the statements of the Federal
Minister of Justice and the German Chancellor at the time, according
to which the Court’s judgment was not binding on the German
courts because the case law of the Federal Constitutional Court
was of higher rank than the Convention, and by the opinions expressed
by the respective reporting judges in the Caroline von Hannover
cases before the Federal Constitutional Court in an interview and in
a legal article published in 2004 and 2009 respectively.
Germany
had categorically refused until now to execute the Von Hannover
judgment, in breach of Article 46 of the Convention.
Accordingly, in its Görgülü judgment the
Federal Constitutional Court had observed that a blanket execution of
the Court’s judgments should be avoided. The Court of Appeal
had clearly stated in the present case that the judgment of the
Federal Constitutional Court of 1999 took precedence. The Federal
Court of Justice and the Federal Constitutional Court, for their
part, had circumvented the Von Hannover judgment and
continued to rely on the concept of figure of contemporary society
(par excellence) that had been called into question by the
Court, by using the terms “prominent persons” or
“high-profile persons”, and referring – de facto
– to the spatial isolation factor by using the expression
“moment of relaxation or letting go, freed from the constraints
of professional or everyday life”. The applicants continued to
be the subject of press articles on their daily and private life and
to be hounded by paparazzi, with the German courts doing nothing to
put a stop to this. As it was impossible for them to know whether
they were protected from harassment by paparazzi, they complained of
an intolerable situation of legal insecurity and a considerable risk
of litigation and costs resulting from that.
The
applicants argued that none of the photos, whether considered alone
or in the context of the written article, contributed to a debate of
public interest in a democratic society. They served purely to
satisfy the curiosity of a particular readership. How and where the
applicants spent their holidays clearly did not concern any matter
that materially affected the public. A walk by the applicants during
their holiday was not an event of contemporary society, especially as
it was not undertaken in the exercise of any official function.
The
reference to Prince Rainier’s long-term illness in the article
accompanying the photos in question could not alter that finding. The
article was not about whether the Prince’s illness prevented
him from carrying out his sovereign tasks. There were only a few
sentences informing the reader about his illness; the article was
mainly about the private life of the applicants and other members of
the Prince’s family. The Prince’s illness had been merely
a pretext for extensive coverage of the applicants’ private
life. It was already doubtful whether publication of the photo of
Prince Rainier with his daughter Stéphanie could be justified,
so publication of the photo complained of in this case was clearly
unjustified. Even if there was information value in the prince’s
illness, there was no genuine link between the applicants’
skiing holiday and that illness. A simple article would, moreover,
have sufficed to satisfy the public’s interest.
The
applicants submitted that there had been nothing unusual or
reprehensible in their spending a few days on a skiing holiday with
their daughter during the prince’s illness, just like other
families. That information was totally irrelevant to how the
Principality of Monaco was governed. It was precisely when a family
member was suffering from a long-term illness that the relatives
needed special protection during the few days that they could relax.
If a relative’s poor health were sufficient grounds upon which
to publish photos, the Article 8 guarantees would be undermined and
the press could permanently report on the applicants’ private
life. Where the photos showed the applicants visiting the prince, the
event of contemporary society would be the visit, and where they were
elsewhere the event would be their absence. The German media had
fully grasped this: they could enrich their articles with a few
sentences to artificially generate information value.
The
applicants complained of the absence of two important factors in the
balancing exercise undertaken by the German courts. They argued that
the courts had failed to have regard to the fact that they had never
sought to publicise details of their private life in the media, but
had always defended themselves against any illegal publication. They
thus had a legitimate expectation that their private life would be
protected. Moreover, unlike the Court, the German courts had not
taken account of the fact that the applicants were being permanently
observed and hounded by paparazzi and that the photos had been taken
without their knowledge or consent. Furthermore, the first applicant
had not at any time been called to the throne of the Principality of
Monaco: her father had still been alive when the photos were taken.
On the latter’s death, it was her brother Albert who had
succeeded him to the throne.
The
applicants submitted that since the Von Hannover judgment, in
which the Court had clearly established the criteria that had to be
met in cases of illegal publication of photos, the German authorities
could no longer rely on a margin of appreciation. In their
submission, a European consensus had emerged following the influence
of that judgment as illustrated by the adoption of a resolution by
the Parliamentary Assembly in 1998. The differences that remained
were merely in the nuances. The Von Hannover judgment was
part of a line of established case-law and had subsequently been
confirmed many times. The applicants expressed surprise, moreover,
that the Court, as a supreme European court, should have less
extensive powers of scrutiny than those exercised by the Federal
Constitutional Court, which, in the proceedings in respect of the
photo published in the magazine 7 Tage (paragraph 40 above),
had overridden the opinion of the eleven professional judges who had
examined the case and substituted its own opinion down to the last
detail.
2. Third parties’ observations
(a) Association of German magazine editors
The
third-party association observed that the Von Hannover
judgment delivered by the Court had had considerable effects on the
freedom of the press in Germany. Following that judgment, the German
courts had attached much less weight to the freedom of the press than
before. Their decisions had now fallen into line with the Court’s
case-law, to which they often referred moreover. The association
submitted that the press, in its role of “public watchdog”,
had the task not only of watching over parliaments, governance and
other political events, but also of observing public life in general
whether in politics, the economy, the arts, the social sphere, sport
or any other domain. Like members of other royal families, the first
applicant had a function as a role model and was unquestionably a
public figure. The third-party association pointed out that, since
2003, the first applicant had been UNESCO goodwill ambassador, a
title bestowed on famous persons such as Nelson Mandela,
Claudia Cardinale or Pierre Cardin. The Court had, moreover,
described the first applicant as a public figure in judgments
delivered after the Von Hannover judgment. In the
association’s view, the protection of privacy had already been
quite extensive before the Von Hannover judgment and that
protection had subsequently been further extended. The German courts
had not therefore exceeded their margin of appreciation. The standard
as it existed in France could not constitute a model for Europe.
(b) Ehrlich & Sohn GmbH & Co KG
publishing company
The
third-party publishing company reiterated the importance of the
freedom of the press in Germany, particularly having regard to the
country’s former National Socialist era. It observed that, in
accordance with the settled case-law of the Federal Constitutional
Court, the entertainment press also enjoyed the protection of press
freedom. Moreover, as the daughter of the late sovereign prince of a
European country, sister of the current sovereign prince and wife of
the head of a former German noble dynasty, the first applicant was
undeniably a public figure who attracted attention, at least in
Europe. The publishing company submitted, lastly, that following the
Von Hannover judgment delivered by the Court in 2004, the
German courts had departed from precedent by restricting the
possibility of publishing photographs of persons taken outside
official events and without the consent of the interested parties and
had thus severely curtailed the freedom of information and of the
press.
(c) Media Lawyers Association
The
third-party association argued that Article 8 of the Convention did
not create an image right or, moreover, a right to reputation.
Publication of a person’s photo did not, of itself, necessarily
constitute an interference with the rights guaranteed under that
provision. In determining whether there had been an interference,
regard had to be had to all the circumstances and a certain level of
seriousness was required. It was vital that media reporting upon all
matters of public interest was strongly protected. In the
Association’s submission, whilst the Court had rightly held, in
its Von Hannover judgment, that regard had to be had to
the context in which a photo had been taken, it had gone too far in
asserting – in error – that publication of any photo fell
within the scope of Article 8. The Court had unfortunately confirmed
that position in subsequent judgments. The association maintained
that the correct approach was first to examine whether the photo that
had been published did or did not fall within the private sphere. In
that context consideration had to be given to whether the person
concerned, having regard to all the circumstances, had a legitimate
expectation of privacy. If not, that was the end of the matter as
Article 8 of the Convention did not apply. If yes, the domestic
courts had to balance competing rights – of equal status –
under Articles 8 and 10 of the Convention, whilst taking account of
all the circumstances of the case. The balancing exercise and the
outcome were matters that fell within the margin of appreciation of
the States. The Court should intervene only where the national
authorities had failed to undertake a balancing exercise or where
their decisions were unreasonable. Lastly, the decision whether to
include a photo in a written report fell within the editor’s
discretion and judges could not substitute their own opinion.
(d) Joint submissions by the Media Legal
Defence Initiative, International Press Institute and World
Association of Newspapers and News Publishers
The
three third-party associations submitted that a broad trend could be
observed across the Contracting States towards the assimilation by
the national courts of the principles and standards articulated by
the Court relating to the balancing of the rights under Article 8
against those under Article 10 of the Convention, even if the
individual weight given to a particular factor might vary from one
State to another. They invited the Court to grant a broad margin of
appreciation to the Contracting States, submitting that such was the
thrust of Article 53 of the Convention. They referred to the Court’s
judgment in the case of Chassagnou and Others v. France
([GC], nos. 25088/94, 28331/95 and 28443/95, § 113,
ECHR 1999 III), submitting that the Court had indicated
that it would allow the Contracting States a wide margin of
appreciation in situations of competing interests. The Contracting
States were likewise generally granted a wider margin in respect of
positive obligations in relationships between private parties or
other areas in which opinions within a democratic society might
reasonably differ significantly (Fretté v. France, no.
36515/97, § 41, ECHR 2002 I). The Court had, moreover,
already allowed the Contracting States a broad margin of appreciation
in a case concerning a balancing exercise in respect of rights under
Articles 8 and 10 of the Convention (A. v. Norway,
cited above, § 66). Its role was precisely to confirm that the
Contracting States had put in place a mechanism for the determination
of a fair balance and whether particular factors taken into account
by the national courts in striking such a balance were consistent
with the Convention and its case-law. It should only intervene where
the domestic courts had considered irrelevant factors to be
significant or where the conclusions reached by the domestic courts
were clearly arbitrary or summarily dismissive of the privacy or
reputational interests at stake. Otherwise, it ran the risk of
becoming a court of appeal for such cases.
3. The Court’s assessment
(a) Scope of the application
The
Court observes at the outset that it is not its task in the present
case to examine whether Germany has satisfied its obligations under
Article 46 of the Convention regarding execution of the Von
Hannover judgment it delivered in 2004, as that task is the
responsibility of the Committee of Ministers (see Verein gegen
Tierfabriken Schweiz (VgT) v. Switzerland (no. 2)
[GC], no. 32772/02, § 61, ECHR 2009 ..., and Öcalan
v. Turkey (dec.), no. 5980/07, 6 July 2010). The
present applications concern only new proceedings instituted by the
applicants following the Von Hannover judgment and
relating to the publication of other photos of them (see paragraphs
15-20 above).
(b) General principles
(i) Concerning private life
The
Court reiterates that the concept of private life extends to aspects
relating to personal identity, such as a person’s name, photo,
or physical and moral 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. There is thus a
zone of interaction of a person with others, even in a public
context, which may fall within the scope of private life. Publication
of a photo may thus intrude upon a person’s private life even
where that person is a public figure (see Schüssel v. Austria
(dec.), no. 42409/98, 21 February 2002; Von Hannover,
cited above, §§ 50 and 53; Sciacca, cited above, §
29; and Petrina v. Romania, no. 78060/01, § 27,
14 October 2008).
Regarding
photos, the Court has stated that a person’s image constitutes
one of the chief attributes of his or her personality, as it reveals
the person’s unique characteristics and distinguishes the
person from his or her peers. The right to the protection of one’s
image is thus one of the essential components of personal
development. It mainly presupposes the individual’s right to
control the use of that image, including the right to refuse
publication thereof (see Reklos and Davourlis v. Greece, cited
above, § 40).
The
Court also reiterates that, in certain circumstances, even where a
person is known to the general public, he or she may rely on a
“legitimate expectation” of protection of and respect for
his or her private life (see Von Hannover, cited above, §
51; Leempoel & S.A. ED. Ciné Revue v. Belgium,
no. 64772/01, § 78, 9 November 2006; Standard Verlags GmbH v.
Austria (no. 2), no. 21277/05, § 48, 4 June 2009; and
Hachette Filipacchi Associés (ICI PARIS) v.
France, no. 12268/03, § 53, 23 July 2009).
In
cases of the type being examined here what is in issue is not an act
by the State but the alleged inadequacy of the protection afforded by
the domestic courts to the applicants’ private life. While the
essential object of Article 8 is to protect 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 negative undertaking, there may be positive obligations inherent
in 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 X and Y v. the Netherlands, 26 March
1985, § 23, Series A no. 91, and Armonienė, cited
above, § 36). That also applies to the protection of a person’s
picture against abuse by others (see Schüssel, cited
above; Von Hannover, cited above, § 57; and Reklos and
Davourlis, cited above, § 35).
The
boundary between the State’s positive and negative obligations
under Article 8 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 relevant competing interests (see White v. Sweden, no.
42435/02, § 20, 19 September 2006, and Gurgenidze, cited
above, § 37).
(ii) Concerning freedom of expression
The
present applications require an examination of the fair balance that
has to be struck between the applicants’ right to respect for
their private life and the right of the publishing company to freedom
of expression guaranteed under Article 10 of the Convention. The
Court therefore considers it useful to reiterate the general
principles relating to the application of that provision as well.
Freedom
of expression constitutes 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. 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 pluralism,
tolerance and broadmindedness without which there is no “democratic
society”. As set forth in Article 10, freedom of expression is
subject to exceptions, which must, however, be construed strictly,
and the need for any restrictions must be established convincingly
(see, among other authorities, Handyside v. the United Kingdom,
7 December 1976, § 49, Series A no. 24, Editions Plon v.
France, no. 58148/00, § 42, ECHR 2004 IV; and
Lindon, Otchakovsky-Laurens and July v. France [GC], nos.
21279/02 and 36448/02, § 45, ECHR 2007 IV).
The
Court has also repeatedly emphasised the essential role played by the
press in a democratic society. Although the press must not overstep
certain bounds, regarding in particular protection 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. Not only
does the press have the task of imparting such information and ideas;
the public also has a right to receive them. Were it otherwise, the
press would be unable to play its vital role of “public
watchdog” (see Bladet Tromsø and Stensaas v. Norway
[GC], no. 21980/93, §§ 59 and 62, ECHR 1999 III,
and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §
71, ECHR 2004 XI).
Furthermore,
is not for the Court, any more than it is for the national courts, to
substitute its own views for those of the press as to what techniques
of reporting should be adopted in a particular case (see Jersild
v. Denmark, 23 September 1994, § 31, Series A no. 298,
and Stoll v. Switzerland [GC], no. 69698/01, § 146,
ECHR 2007 V).
The
Court reiterates, lastly, that freedom of expression includes the
publication of photos (see Österreichischer Rundfunk v.
Austria (dec.), no. 57597/00, 25 May 2004, and
Verlagsgruppe News GmbH v. Austria (no. 2), no
10520/02, §§ 29 and 40, 14 December 2006). This is
nonetheless an area in which the protection of the rights and
reputation of others takes on particular importance, as the photos
may contain very personal or even intimate information about an
individual or his or her family (see Von Hannover,
cited above, § 59; Hachette Filipacchi Associés v.
France, no. 71111/01, § 42, ECHR 2007 VII; and
Eerikäinen and Others v. Finland, no. 3514/02, § 70,
10 February 2009).
Moreover,
photos appearing in the “sensationalist” press or in
“romance” magazines, which generally aim to satisfy the
public’s curiosity regarding the details of a person’s
strictly private life (see Société Prisma Presse
v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003,
and Hachette Filipacchi Associés (ICI PARIS),
cited above, § 40), are often taken in a climate of continual
harassment which may induce in the person concerned a very strong
sense of intrusion into their private life or even of persecution
(see Von Hannover, cited above, § 59, and
Gurgenidze, cited above, § 59).
(iii) Concerning the margin of
appreciation
The
Court reiterates that the choice of the means calculated to secure
compliance with Article 8 of the Convention in the sphere of the
relations of individuals between themselves is in principle a matter
that falls within the Contracting States’ margin of
appreciation, whether the obligations on the State are positive or
negative. There are different ways of ensuring respect for private
life and the nature of the State’s obligation will depend on
the particular aspect of private life that is at issue (see X and
Y v. the Netherlands, cited above, § 24, and Odièvre
v. France [GC], no. 42326/98, § 46, ECHR
2003 III).
Likewise,
under Article 10 of the Convention, the Contracting States have a
certain margin of appreciation in assessing whether and to what
extent an interference with the freedom of expression protected by
this provision is necessary (see Tammer v. Estonia,
no. 41205/98, § 60, ECHR 2001 I, and Pedersen
and Baadsgaard, cited above, § 68).
However,
this margin goes hand in hand with European supervision, embracing
both the legislation and the decisions applying it, even those
delivered by an independent court (see, mutatis mutandis, Peck
v. the United Kingdom, no. 44647/98, § 77, ECHR
2003 I, and Karhuvaara and Iltalehti, cited above, §
38). In exercising its supervisory function, the Court’s task
is not to take the place of the national courts, but rather to
review, in the light of the case as a whole, whether the decisions
they have taken pursuant to their power of appreciation are
compatible with the provisions of the Convention relied on (see
Petrenco v. Moldova, no. 20928/05, § 54, 30 March
2010; Polanco Torres and Movilla Polanco v. Spain,
no. 34147/06, § 41, 21 September 2010;
and Petrov v. Bulgaria
(dec.), no. 27103/04, 2 November 2010).
In
cases such as the present one, which require the right to respect for
private life to be balanced against the right to freedom of
expression, the Court considers that the outcome of the application
should not, in theory, vary according to whether it has been lodged
with the Court under Article 8 of the Convention, by the person
who was the subject of the article, or under Article 10 by the
publisher. Indeed, as a matter of principle these rights deserve
equal respect (see Hachette Filipacchi Associés (ICI
PARIS), cited above, § 41; Timciuc v. Romania (dec.),
no. 28999/03, § 144, 12 October 2010; and Mosley v.
the United Kingdom, no. 48009/08, § 111,
10 May 2011; see also point 11 of the Resolution of the
Parliamentary Assembly – paragraph 71 above). Accordingly, the
margin of appreciation should in theory be the same in both cases.
Where
the balancing exercise has been undertaken by the national
authorities in conformity with the criteria laid down in the Court’s
case-law, the Court would require strong reasons to substitute its
view for that of the domestic courts (see MGN Limited v. the
United Kingdom, no. 39401/04, §§ 150
and 155, 18 January 2011, and Palomo Sánchez and
Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and
28964/06, § 57, 12 septembre 2011).
(iv) The criteria relevant for the
balancing exercise
Where
the right to freedom of expression is being balanced against the
right to respect for private life, the criteria laid down in the
case-law that are relevant to the present case are set out below.
(α) Contribution to a debate of general
interest
An
initial essential criterion is the contribution made by photos or
articles in the press to a debate of general interest (see Von
Hannover, cited above, § 60; Leempoel & S.A. ED. Ciné
Revue, cited above, § 68; and Standard Verlags
GmbH, cited above, § 46). The definition of what constitutes
a subject of general interest will depend on the circumstances of the
case. The Court nevertheless considers it useful to point out that it
has recognised the existence of such an interest not only where the
publication concerned political issues or crimes (see White,
cited above, § 29; Egeland and Hanseid v. Norway, no.
34438/04, § 58, 16 April 2009; and Leempoel & S.A. ED.
Ciné Revue, cited above, § 72), but also where
it concerned sporting issues or performing artists (see Nikowitz
and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25,
22 February 2007; Colaço Mestre and SIC – Sociedade
Independente de Comunicação, S.A. v. Portugal,
nos. 11182/03 and 11319/03, § 28, 26 April 2007; and Sapan
v. Turkey, no. 44102/04, § 34, 8 June 2010).
However, the rumoured marital difficulties of a president of the
Republic or the financial difficulties of a famous singer were not
deemed to be matters of general interest (see Standard Verlags
GmbH, cited above, § 52, and Hachette Filipacchi Associés
(ICI PARIS), cited above, § 43).
(β) How well known is the person
concerned and what is the subject of the report?
The
role or function of the person concerned and the nature of the
activities that are the subject of the report and/or photo constitute
another important criterion, related to the preceding one. In that
connection a distinction has to be made between private individuals
and persons acting in a public context, as political figures or
public figures. Accordingly, whilst a private individual unknown to
the public may claim particular protection of his or her right to
private life, the same is not true of public figures (see Minelli
v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco,
cited above, § 55). A fundamental distinction needs to be made
between reporting facts capable of contributing to a debate in a
democratic society, relating to politicians in the exercise of their
official functions for example, and reporting details of the private
life of an individual who does not exercise such functions (see Von
Hannover, cited above, § 63, and Standard Verlags GmbH,
cited above, § 47).
While
in the former case the press exercises its role of “public
watchdog” in a democracy by imparting information and ideas on
matters of public interest, that role appears less important in the
latter case. Similarly, although in certain special circumstances the
public’s right to be informed can even extend to aspects of the
private life of public figures, particularly where politicians are
concerned, this will not be the case – despite the person
concerned being well known to the public – where the published
photos and accompanying commentaries relate exclusively to details of
the person’s private life and have the sole aim of satisfying
public curiosity in that respect (see Von Hannover, cited
above, § 65 with the references cited therein, and Standard
Verlags GmbH, cited above, § 53; see also point 8 of the
Resolution of the Parliamentary Assembly – paragraph 71 above).
In the latter case, freedom of expression calls for a narrower
interpretation (see Von Hannover, cited above, § 66;
Hachette Filipacchi Associés (ICI PARIS),
cited above, § 40; and MGN Limited,
cited above, § 143).
(γ) Prior conduct of the person
concerned
The
conduct of the person concerned prior to publication of the report or
the fact that the photo and the related information have already
appeared in an earlier publication are also factors to be taken into
consideration (see Hachette Filipacchi Associés (ICI
PARIS), cited above, §§ 52-53, and Sapan,
cited above, § 34). However, the mere fact of having cooperated
with the press on previous occasions cannot serve as an argument for
depriving the party concerned of all protection against publication
of the photo at issue (see Egeland and Hanseid, cited
above, § 62).
(δ) Content, form and consequences of
the publication
The
way in which the photo or report are published and the manner in
which the person concerned is represented in the photo or report may
also be factors to be taken into consideration (see Wirtschafts-Trend
Zeitschriften-Verlagsgesellschaft m.b.H. v. Austria (no. 3), nos.
66298/01 and 15653/02, § 47, 13 December 2005; Reklos and
Davourlis, cited above, § 42; and Jokitaipale and Others
v. Finland, no. 43349/05, § 68, 6 April 2010). The extent to
which the report and photo have been disseminated may also be an
important factor, depending on whether the newspaper is a national or
local one, and has a large or a limited circulation (see Karhuvaara
and Iltalehti, cited above, § 47, and Gurgenidze,
cited above, § 55).
(ε) Circumstances in which the photos
were taken
Lastly,
the Court has already held that the context and circumstances in
which the published photos were taken cannot be disregarded. In that
connection regard must be had to whether the person photographed gave
their consent to the taking of the photos and their publication (see
Gurgenidze, cited above, § 56, and Reklos and
Davourlis, cited above, § 41) or whether this was done
without their knowledge or by subterfuge or other illicit means (see
Hachette Filipacchi Associés (ICI PARIS),
cited above, § 47, and Flinkkilä and Others v. Finland,
no. 25576/04, § 81, 6 April 2010). Regard must also be had
to the nature or seriousness of the intrusion and the consequences of
publication of the photo for the person concerned (see Egeland and
Hanseid, cited above, § 61, and Timciuc,
decision cited above, § 150). For a private individual,
unknown to the public, the publication of a photo may amount to a
more substantial interference than a written article (see Eerikäinen
and Others, cited above, § 70, and A. v. Norway,
cited above, § 72).
(c) Application of the principles to the
present case
The
Court takes note of the changes made by the Federal Court of Justice
to its earlier case-law following the Von Hannover
judgment. That court stated, inter alia, that in future
importance had to be attached to the question whether the report in
question contributed to a factual debate and whether its contents
went beyond a mere desire to satisfy public curiosity. It observed in
that connection that the greater the information value for the public
the more the interest of a person in being protected against its
publication had to yield, and vice versa. Whilst pointing out that
the freedom of expression also included the entertainment press, it
stated that the reader’s interest in being entertained
generally carried less weight than the interest in protecting the
private sphere.
The
Federal Constitutional Court confirmed that approach, stating that
whilst it had not, in its judgment of 15 December 1999, called into
question the former case-law of the Federal Court of Justice, that
did not mean that another concept of protection – giving
greater weight to balancing the conflicting interests at stake when
examining the question whether a photo could be regarded as an aspect
of contemporary society and could accordingly be published without
the consent of the person concerned – could not be in
conformity with the Basic Law.
In
so far as the applicants alleged that the new approach of the Federal
Court of Justice and the Federal Constitutional Court merely
reproduced the reasoning of the former case-law using different
terms, the Court reiterates that its task is not to review the
relevant domestic law and practice in abstracto, but to
determine whether the manner in which they were applied to the
applicants has infringed Article 8 of the Convention (see Karhuvaara
and Iltalehti, cited above, § 49).
The
Court observes that in applying its new approach the Federal Court of
Justice found that as neither the part of the article accompanying
the photos of the applicants’ skiing holiday nor the photos
themselves contained information related to an event of contemporary
society, they did not contribute to a debate of general interest. The
Federal Court of Justice found that the same could not be said,
however, with regard to the information in the articles about the
illness affecting Prince Rainier III, the reigning sovereign of the
Principality of Monaco at the time, and the conduct of the members of
his family during that illness. In the Federal Court of Justice’s
opinion, that subject qualified as an event of contemporary society
on which the magazines were entitled to report, and to include the
photos in question in that report as these supported and illustrated
the information being conveyed.
The
Federal Constitutional Court, for its part, observed that the Federal
Court of Justice had accepted that the reigning prince of Monaco’s
illness could be regarded as a matter of general interest and that
the press was therefore entitled to report on how the prince’s
children reconciled their obligations of family solidarity with the
legitimate needs of their private life, among which was the desire to
go on holiday. It also confirmed that there was a sufficiently close
link between the photo and the event described in the article.
The
Court observes that the fact that the Federal Court of Justice
assessed the information value of the photo in question in the light
of the accompanying article cannot be criticised under the Convention
(see, mutatis mutandis, Tønsbergs Blad A.S. and
Haukom, cited above, § 87, and Österreichischer
Rundfunk v. Austria, no. 35841/02, §§ 68 and 69,
7 December 2006). Regarding the characterisation of Prince
Rainier’s illness as an event of contemporary society, the
Court is of the opinion that, having regard to the reasons advanced
by the German courts, that interpretation cannot be considered
unreasonable (see, mutatis mutandis, Editions Plon,
cited above, §§ 46-57). It is worth mentioning in this
connection that the Federal Court of Justice upheld the injunction
forbidding publication of two other photos showing the applicants in
similar circumstances, precisely on the grounds that they were being
published for entertainment purposes alone (see paragraphs 36 and 37
above). The Court can therefore accept that the photos in question,
considered in the light of the accompanying articles, did contribute,
at least to some degree, to a debate of general interest. It would
reiterate, on this point, that not only does the press have the task
of imparting information and ideas on all matters of public interest,
the public also has a right to receive them (see paragraph 102
above).
In
so far as the applicants complained of a risk that the media would
circumvent the conditions laid down by the Federal Court of Justice
by using any event of contemporary society as a pretext to justify
the publication of photos of them, the Court notes that it is not its
task, in the context of the present applications, to rule on the
conformity with the Convention of any future publication of photos of
the applicants. Should that happen, it will be open to them to bring
proceedings in the appropriate national courts. The Court also
observes that the Federal Constitutional Court stated in its judgment
that where an article was merely a pretext for publishing a photo of
a prominent person, no contribution was thereby made to the formation
of public opinion and there were therefore no grounds for allowing
the interest in publication to prevail over the protection of
personality rights.
Admittedly,
the Federal Court of Justice based its reasoning on the premise that
the applicants were well-known public figures who particularly
attracted public attention, without going into their reasons for
reaching that conclusion. The Court considers, nonetheless, that
irrespective of the question whether and to what extent the first
applicant assumes official functions on behalf of the Principality of
Monaco, it cannot be claimed that the applicants, who are undeniably
very well known, are ordinary private individuals. They must, on the
contrary, be regarded as public figures (see Gurgenidze, cited
above, § 40; Sciacca, cited above, § 27; Reklos
and Davourlis, cited above, § 38; and Giorgi
Nikolaishvili v. Georgia, no. 37048/04, § 123, ECHR
2009 ...).
The
Federal Court of Justice then examined the question whether the
photos had been taken in circumstances unfavourable to the
applicants. The Government submitted that the fact that the photos
had been taken without the applicants’ knowledge did not
necessarily mean that they had been taken surreptitiously in
conditions unfavourable to the applicants. The latter, for their
part, alleged that the photos had been taken in a climate of general
harassment with which they were constantly confronted.
The
Court observes that the Federal Court of Justice concluded that the
applicants had not adduced evidence of unfavourable circumstances in
that connection and that there was nothing to indicate that the
photos had been taken surreptitiously or by equivalent secret means
such as to render their publication illegal. The Federal
Constitutional Court, for its part, stated that the publishing
company concerned had provided details of how the photo that had
appeared in the Frau im Spiegel magazine had been taken, but
that the first applicant had neither complained before the civil
courts that those details were inadequate nor submitted that the
photo in question had been taken in conditions that were unfavourable
to her.
The
Court observes that, according to the case-law of the German courts,
the circumstances in which photos have been taken constitutes one of
the factors that are normally examined when the competing interests
are balanced against each other. In the present case it can be seen
from the decisions of the national courts that this factor did not
require a more thorough examination as the applicants did not put
forward any relevant arguments and there were no particular
circumstances justifying an injunction against publishing the photos.
The Court notes, moreover, as pointed out by the Federal Court of
Justice, that the photos of the applicants in the middle of a street
in St. Moritz in winter were not in themselves offensive to the point
of justifying their prohibition.
(d) Conclusion
The
Court observes that, in accordance with their case-law, the national
courts carefully balanced the right of the publishing companies to
freedom of expression against the right of the applicants to respect
for their private life. In doing so, they attached fundamental
importance to the question whether the photos, considered in the
light of the accompanying articles, had contributed to a debate of
general interest. They also examined the circumstances in which the
photos had been taken.
The
Court also observes that the national courts explicitly took account
of the Court’s relevant case-law. Whilst the Federal Court of
Justice had changed its approach following the Von Hannover
judgment, the Federal Constitutional Court, for its part, had not
only confirmed that approach, but also undertaken a detailed analysis
of the Court’s case-law in response to the applicants’
complaints that the Federal Court of Justice had disregarded the
Convention and the Court’s case-law.
In
those circumstances, and having regard to the margin of appreciation
enjoyed by the national courts when balancing competing interests,
the Court concludes that the latter have not failed to comply with
their positive obligations under Article 8 of the Convention.
Accordingly, there has not been a violation of that provision.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Disjoins the application in the case of Axel
Springer AG v. Germany (no. 39954/08) from the present
applications;
Declares the present applications admissible;
Holds that there has been no violation of
Article 8 of the Convention.
Done in English and in French, and delivered at
a public hearing in the Human Rights Building, Strasbourg, on 7
February 2012.
Michael
O’Boyle Nicolas Bratza
Deputy Registrar President
