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, practising 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 anodyne 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 instance that the photos had not been taken in a secluded place and had, in the second instance, 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 were 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 reiterated 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 Editors of German Magazines submitted that German law, which was half way 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 no. 1165 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 Editors of German Magazines and stated that German law required the courts to balance the competing interests of informing the public and protecting the right to control of 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 (edition 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 (edition no. 32 of 5 August 1993) showing the applicant on horseback (see paragraph 12 above)
(ii) the photos published in Bunte magazine (edition 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 (edition 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 (edition no. 12 of 13 March 1997) showing the applicant with Prince Ernst August von Hannover or alone leaving her Parisian residence (see paragraph 15 above);
(v) the photos published in Bunte magazine (edition no. 16 of 10 April 1997 showing the applicant playing tennis with Prince Ernst August von Hannover or both of them putting their bicycles down (see paragraph 16 above);
(vi) the photos published in Neue Post magazine (edition no. 35/97) showing the applicant tripping over an obstacle at the Monte Carlo Beach Club (see paragraph 17 above).
2. As regards the applicability of Article 8
50. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person’s name (see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24), or a person’s picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002).
Furthermore, private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (see, mutatis mutandis, Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, p. 33, § 29, and Botta v. Italy, judgment of 24 February 1998, Reports of Judgments and Decisions 1998-I, p. 422, § 32). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see, mutatis mutandis, P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX, and Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003-I.).
51. The Court has also indicated that, in certain circumstances, a person has a “legitimate expectation” of protection and respect for his or her private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant “would have had a reasonable expectation of privacy for such calls” (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports 1997-III, p.1016, § 45).
52. As regards photos, with a view to defining the scope of the protection afforded by Article 8 against arbitrary interference by public authorities, the Commission had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public (see, mutatis mutandis, Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, Friendly Settlement, Commission opinion, p. 21, §§ 49-52; P.G. and J.H., cited above, § 58; and Peck, cited above, § 61).
53. In the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life.
3. Compliance with Article 8
a. The domestic courts’ position
54. The Court notes that, in its landmark judgment of 15 December 1999, the Federal Constitutional Court interpreted sections 22 and 23 of the Copyright (Arts Domain) Act (see paragraphs 40-41 above) by balancing the requirements of the freedom of the press against those of the protection of private life, that is, the public interest in being informed against the legitimate interests of the applicant. In doing so the Federal Constitutional Court took account of two criteria under German law, one functional and the other spatial. It considered that the applicant, as a figure of contemporary society “par excellence”, enjoyed the protection of her private life even outside her home but only if she was in a secluded place out of the public eye “to which the person concerned retires with the objectively recognisable aim of being alone and where, confident of being alone, behaves in a manner in which he or she would not behave in public”. In the light of those criteria the Federal Constitutional Court held that the Federal Court of Justice’s judgment of 19 December 1995 regarding publication of the photos in question was compatible with the Basic Law. The court attached decisive weight to the freedom of the press, even the entertainment press, and to the public interest in knowing how the applicant behaved outside her representative functions (see paragraph 25 above).
55. Referring to its landmark judgment, the Federal Constitutional Court did not entertain the applicant’s appeals in the subsequent proceedings brought by her (see paragraphs 32 and 38 above).
b. The general principles governing the protection of private life and the freedom of expression
56. In the present case the applicant did not complain of an action by the State, but rather of the lack of adequate State protection of her private life and her image.
57. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23; Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299-B, p. 61, § 38; and Verliere v. Switzerland (dec.), no. 41953/98, ECHR 2001-VII). That also applies to the protection of a person’s picture against abuse by others (see Schüssel, cited above).
The boundary between the State’s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among many other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49, and Botta, cited above, p. 427, § 33).
58. That protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention. In that context the Court reiterates that the freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49).
In that connection the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see, among many authorities, Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, p. 29-30, § 59, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38; Tammer v. Estonia, no. 41205/98, § 59-63, ECHR 2001-I; and Prisma Press v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003).
59. Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.
60. In the cases in which the Court has had to balance the protection of private life against the freedom of expression it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, as a recent authority, News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52 et seq., ECHR 2000-I, and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual’s private life was not “justified by considerations of public concern” and that those terms did not “[bear] on a matter of general importance” (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of “major public concern” and that the published photographs “did not disclose any details of [the] private life” of the person in question (see Krone Verlag, cited above, § 37) and held that there had been a violation of Article 10. Similarly, in a recent case concerning the publication by President Mitterand’s former private doctor of a book containing revelations about the President’s state of health, the Court held that “the more time passed the more the public interest in President Mitterand’s two seven-year presidential terms prevailed over the requirements of the protection of his rights with regard to medical confidentiality” (see Plon (Société) v. France, no. 58148/00, 18 May 2004) and held that there had been a breach of Article 10.
c. Application of these general principles by the Court
61. The Court points out at the outset that in the present case the photos of the applicant in the various German magazines show her in scenes from her daily life, thus engaged in activities of a purely private nature such as practising sport, out walking, leaving a restaurant or on holiday. The photos, in which the applicant appears sometimes alone and sometimes in company, illustrate a series of articles with such anodyne titles as ‘Pure happiness”, “Caroline ... a woman returning to life”, “Out and about with Princess Caroline in Paris” and “The kiss. Or: they are not hiding anymore ...”
(see paragraphs 11-17 above).
62. The Court also notes that the applicant, as a member of the Prince of Monaco’s family, represents the ruling family at certain cultural or charitable events. However, she does not exercise any function within or on behalf of the State of Monaco or one of its institutions (see paragraph 8 above).
63. The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest (Observer and Guardian, cited above, ibid.) it does not do so in the latter case.
64. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned (see Plon (Société), cited above, ibid.), this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant’s private life.
65. As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public (see, mutatis mutandis, Jaime Campmany y Diez de Revenga and Juan Luís Lopez-Galiacho Perona v. Spain (dec.), no. 54224/00, 12 December 2000; Julio Bou Gibert and El Hogar Y La Moda J.A. v. Spain (dec.), no. 14929/02, 13 May 2003; and Prisma Presse, cited above).
66. In these conditions freedom of expression calls for a narrower interpretation (see Prisma Presse, cited above, and, by converse implication, Krone Verlag, cited above, § 37).
67. In that connection the Court also takes account of the resolution of the Parliamentary Assembly of the Council of Europe on the right to privacy, which stresses the “one-sided interpretation of the right to freedom of expression” by certain media which attempt to justify an infringement of the rights protected by Article 8 of the Convention by claiming that “their readers are entitled to know everything about public figures” (see paragraph 42 above, and Prisma Presse, cited above).
68. The Court finds another point to be of importance: even though, strictly speaking, the present application concerns only the publication of the photos and articles by various German magazines, the context in which these photos were taken – without the applicant’s knowledge or consent –and the harassment endured by many public figures in their daily lives cannot be fully disregarded (see paragraph 59 above).
In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at the Monte Carlo Beach Club tripping over an obstacle and falling down (see paragraph 17 above). It appears that these photos were taken secretly at a distance of several hundred metres, probably from a neighbouring house, whereas journalists and photographers’ access to the club was strictly regulated (see paragraph 33 above).
69. The Court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being’s personality. That protection – as stated above – extends beyond the private family circle and also includes a social dimension. The Court considers that anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life (see paragraph 51 above and, mutatis mutandis, Halford, cited above, § 45).
70. Furthermore, increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data (see point 5 of the Parliamentary Assembly’s resolution on the right to privacy – see paragraph 42 above and, mutatis mutandis, Amann v. Switzerland [GC], no. 27798/95, § 65-67, ECHR 2000-II; Rotaru v. Romania [GC], no. 28341/95, § 43-44, ECHR 2000-V; P.G. and J.H., cited above, § 57-60, ECHR 2001-IX; and Peck, cited above, §§ 59-63, and § 78). This also applies to the systematic taking of specific photos and their dissemination to a broad section of the public.
71. Lastly, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 15-16, § 33).
72. The Court has difficulty in agreeing with the domestic courts’ interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society “par excellence”. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a “private” individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family whereas she herself does not exercise any official functions.
In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one’s image.
73. Lastly, the distinction drawn between figures of contemporary society “par excellence” and “relatively” public figures has to be clear and obvious so that, in a state governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press.
74. The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant’s private life effectively. As a figure of contemporary society “par excellence” she cannot – in the name of freedom of the press and the public interest – rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life.
75. In the Court’s view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case merely classifying the applicant as a figure of contemporary society “par excellence” does not suffice to justify such an intrusion into her private life.
76. As the Court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to details of her private life.
77. Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.
Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court’s view, yield to the applicant’s right to the effective protection of her private life.
78. Lastly, in the Court’s opinion the criteria established by the domestic courts were not sufficient to ensure the effective protection of the applicant’s private life and she should, in the circumstances of the case, have had a “legitimate expectation” of protection of her private life.
79. Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considers that the German courts did not strike a fair balance between the competing interests.
80. There has therefore been a breach of Article 8 of the Convention.
81. Having regard to that finding, the Court does not consider it necessary to rule on the applicant’s complaint relating to her right to respect for her family life.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
82. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
83. The applicant claimed 50,000 (EUR) in non-pecuniary damage on the ground that the German courts’ decisions prevented her from leading a normal life with her children without being hounded by the media. She also claimed EUR 142,851.31 in reimbursement of her costs and expenses for the many sets of proceedings she had had to bring in the German courts.
84. The Government contested the amounts claimed. As regards non-pecuniary damage, they reiterated that, under German law, the applicant enjoyed protection of her private life even outside her home, particularly where her children were concerned. With regard to costs and expenses, they submitted that not all the proceedings could be taken into account, that the value of parts of the subject-matter was less than the amount stated, and that the legal fees being claimed, in view of the amount concerned, could not be reimbursed.
85. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the Government and the applicant.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 8 of the Convention;
2. Holds that the question of the application of Article 41 is not ready for decision; and accordingly,
(a) reserves the said question in whole;
(b) invites the Government and the applicant to submit, within six months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.
Done in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 24 June 2004.
Vincent Berger Ireneu Cabral Barreto
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Cabral Barreto;
(b) concurring opinion of Mr Zupancic.
CONCURRING OPINION OF JUDGE CABRAL BARRETO
I am of the opinion that there has been a violation of Article 8 of the Convention, but am unable to follow the entire reasoning of the majority.
1. My colleagues state in their conclusions that “the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest” and that “the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and she is well known to the public”.
In the majority’s view the publication of the photos and articles in question was not such as to contribute to a debate of general interest because the applicant was not performing official functions and the published photos and accompanying commentaries related exclusively to details of her private life.
In my view, however, the applicant is a public figure and the public does have a right to be informed about her life.
The solution therefore needs to be found in the fair balance that has to be struck between the applicant’s right to her private life and the public’s right to be informed.
2. The applicant is a public figure, even if she does not perform any function within or on behalf of the State of Monaco or one of its institutions.
Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain – paragraph 7 of Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy (see paragraph 42 of the judgment).
It is well known that the applicant has for years played a role in European public life, even if she does not perform any official functions in her own country.
To measure the degree of public interest in her, it is sufficient to look at the amount of media coverage devoted to her public or private life.
Very recently the press drew attention to the fact that, on her arrival at the ceremony of the marriage of Crown Prince Felipe of Spain, the applicant was one of the people from Europe’s and the world’s high society to be the most widely greeted by the public.
The applicant is, in my view, a public figure and information about her life contributes to a debate of general interest.
The general interest does not have to be limited to political debate.
As pointed out by the Parliamentary Assembly “certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens”.
If that is true of politicians it is also true for all other public figures in whom the public takes an interest.
It is therefore necessary to strike a balance between two fundamental rights: the right of public figures to respect for their private life and everyone’s right to freedom of expression, which embraces the right of the public to be informed.
I agree with the majority that the private life of a public figure does not stop at their front door.
However, it has to be acknowledged that, in view of their fame, a public figure’s life outside their home, and particularly in public places, is inevitably subject to certain constraints.
Fame and public interest inevitably give rise to a difference in treatment of the private life of an ordinary person and that of a public figure.
As the Federal Constitutional Court pointed out, “the public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behaviour on their official engagements”.
Admittedly, determining the limit of a public figure’s private life is no easy task.
Furthermore, a strict criterion might lead to solutions that do not correspond to the “nature of things”.
It is clear that if the person is in an isolated spot everything that happens there must be covered by the protection of private life.
It appears to me, however, that the criterion of spatial isolation used by the German courts is very restrictive.
In my view, whenever a public figure has a “legitimate expectation” of being safe from the media his or her right to private life prevails over the right to freedom of expression or the right to be informed.
It will never be easy to define in concrete terms the situations that correspond to this “legitimate expectation” and a case-by-case approach is therefore justified.
This casuistic approach may also give rise to differences of opinion.
The majority attach importance, for example, to the fact that the photos at the Monte Carlo Beach Club had been taken secretly.
I do not dispute the need to take account of the fact that the photos were taken from a distance, particularly if the person was somewhere they could legitimately believe did not expose them to public view.
However, the beach club swimming pool was an open place frequented by the general public and, moreover, visible from the neighbouring buildings.
Is it possible in such a place to entertain a reasonable expectation of not being exposed to public view or to the media?
I do not think so.
I believe that this same criterion is valid for photos showing the applicant in other situations in her daily life in which she cannot expect her private life to be protected.
I have in mind the photos of her doing her shopping.
However, other photos – for example those of the applicant on horseback or playing tennis – were taken in places and circumstances that would call for the opposite approach.
It is thus in the knowledge of the limits to the exercise (I refer in this connection to Judge Zupancic’s opinion) that I have found a violation of Article 8 of the Convention.
CONCURRING OPINION OF JUDGE ZUPANCIC
I adhere to the hesitations raised by my colleague, Judge Cabral Barreto. And while I find the distinctions between the different levels of permitted exposure, as defined by the German legal system, too Begriffsjurisprudenz-like, I nevertheless believe that the balancing test between the public’s right to know on the one hand and the affected person’s right to privacy on the other hand must be adequately performed. He who willingly steps upon the public stage cannot claim to be a private person entitled to anonymity. Royalty, actors, academics, politicians etc. perform whatever they perform publicly. They may not seek publicity, yet, by definition, their image is to some extent public property.
Here I intend to concentrate not so much on the public’s right to know – this applies first and foremost to the issue of the freedom of the press and the constitutional doctrine concerning it –, but rather on the simple fact that it is impossible to separate by an iron curtain private life from public performance. The absolute incognito existence is the privilege of Robinson; the rest of us all attract to a greater or smaller degree the interest of other people.
Privacy, on the other hand, is the right to be left alone. One has the right to be left alone precisely to the degree to which one’s private life does not intersect with other people’s private lives. In their own way, legal concepts such as libel, defamation, slander etc. testify to this right and to the limits on other people’s meddling with it. The German private-law doctrine of Persönlichkeitsrecht testifies to a broader concentric circle of protected privacy. Moreover, I believe that the courts have to some extent and under American influence made a fetish of the freedom of the press.
The Persönlichkeitsrecht doctrine imparts a higher level of civilized interpersonal deportment.
It is time that the pendulum swung back to a different kind of balance between what is private and secluded and what is public and unshielded.
The question here is how to ascertain and assess this balance. I agree with the outcome of this case. However, I would suggest a different determinative test: the one we have used in Halford v. United Kingdom, judgment of 25/06/1997, Reports 1997-III, which speaks of “reasonable expectation of privacy.”
The context of criminal procedure and the use of evidence obtained in violation of the reasonable expectation of privacy in Halford do not prevent us from employing the same test in cases such as the one before us.
The dilemma as to whether the applicant here was or was not a public figure, ceases to exist; the proposed criterion of reasonable expectation of privacy permits a nuanced approach to every new case. Perhaps is this what Judge Cabral Barreto has in mind when he refers to the emerging case-law concerning the balancing exercise between the public’s right to know and the private person’s right to shield him- or herself.
Of course, one must avoid a circuitous reasoning here.
The “reasonableness” of the expectation of privacy could be reduced to the aforementioned balancing test. But reasonableness is also an allusion to informed common sense, which tells us that he who lives in a glass house may not have the right to throw stones.