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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 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applicant and her male companion had withdrawn to the far end of a restaurant courtyard with the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 case-law 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.

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 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 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 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 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 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 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

“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 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.

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;

(ii) promote the inclusion in journalism training programmes of a course in law, highlighting the importance of

the right to privacy vis-à-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 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 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 case-law, 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.

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).


PAGINE

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AUTORE

Atreyu

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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo di una sentenza della Corte dei Diritti dell'Uomo di Strasburgo del 2004 in cui si decide un caso in tema di protezione della vita familiare e della privacy in rapporto al diritto e alla libertà di stampa.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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