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So far it has been a bad summer for the tabloid press generally, and the paparazzi in particular.  On 6 May the House of Lords handed down their judgment in Naomi Campbell's case against Mirror Group Newspapers, where the Law Lords declared that everyone, even public figures, are entitled to some degree of privacy.  Although their decision on Ms Campbell's claim was only by a three to two majority, they all concluded that the effect of the introduction of Article 8 into the legislative framework had in effect imported in to the UK a form of privacy law.
On 24 June the European Court of Human Rights added to pain for the popular press when it handed down a judgment in the case of von Hannover v Germany.  This may even more radically alter the extent to which the paparazzi and tabloid press are permitted access to the private lives of celebrities.

The applicant was Princess Caroline of Monaco who had taken her case for protection of her privacy to the ECHR after several mainly unsuccessful applications in the German courts over a period of ten years.  The level of protection of a person's privacy under German law lies somewhere between the modest degree afforded in the UK and the much greater degree awarded in France.

Princess Caroline took action over a series of photographs taken without her consent in France and published in Germany of her everyday life (picking her children up from school, playing sport, shopping at a market etc). Under German law, Princess Caroline is deemed to be a "public figure par excellence", and as such the public is deemed to have a legitimate interest in knowing how she generally behaves in public, even when not performing any kind of official function.

The German government claimed that the level of protection afforded to such public figures under German law was compatible with Article 8 of the European Convention on Human Rights and struck a fair balance between Article 10 (Freedom of Expression) and Article 8 (Respect for Private and Family Life). The ECHR found unanimously, however, that there had been an infringement of Article 8 rights, and that German law did not provide adequate protection for a person's right to private and family life.

The majority of the judges said that the question of the correct balance between Article 8 and Article 10 centres on "the contribution that the published photos and articles make to a debate of general interest." In the case of Princess Caroline, the photographs made no such contribution as she exercised no official function and the photographs related solely to her private life.

The ECHR held 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". Even if such an interest existed alongside the commercial interest of the magazines in publishing the pictures, "these should yield to the applicant's right to the effective protection of her private life." The German criteria were not sufficient to ensure the effective protection of Princess Caroline's private life and she should have a "legitimate expectation" of the protection of her private life.

The ECHR ruled that although a balance had to be struck between the rights of privacy and freedom of expression, the publication of these photographs did not contribute to any public debate. The court drew a distinction between "reporting facts ... capable of contributing to a debate in a democratic society relating to politicians and the exercise of their functions, for example, and the reporting of details of the private life of an individual who ... does not exercise official functions." Where no contribution was made to any debate of general interest, freedom of expression had to be given a "narrow interpretation", one judge observing that the ECHR had (under American influence) to some extent "made a fetish of freedom of the press".

The ECHR clearly set out the principle on which it was going to consider future cases in this paragraph of its judgment: -

"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 … 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."

The most obvious impact of this judgment is on press photography, since a clear "public interest" is now required to justify a photograph of a person who neither holds public office nor is engaged in an "official" activity. The ubiquitous candid pictures of celebrities in public places reproduced daily in tabloid newspapers or glossy magazines are no longer justifiable, and prominent individuals therefore have at least some privacy rights even in public places.

An important impact of the ECHR judgment comes in the context of the test in the PCC Code which judges the legitimacy of unauthorised photographs according to the location where they were taken. The test is whether, at the place that the photograph was taken, an individual has "a reasonable expectation to privacy" which is now obsolete under this new ruling.  The Code is therefore clearly out of step with the ECHR's authoritative interpretation of an individual's Article 8 rights, and the Code will either have to be amended or the Commission's adjudications will be seen as even less attractive an option than the Court for a disgruntled individual with a privacy complaint.

This means that failure by the UK courts and the PCC to protect individuals against publication of pictures, and by extension stories, merely for "entertainment purposes" where there is no public interest, will be a breach of the Article 8 rights of an individual. This case is a strong warning both to the PCC and to the UK courts that they have a positive obligation to protect the privacy rights of individuals, thereby inevitably curtailing to some degree the freedom of the press, and in particular of press photography.  It also creates a dilemma for the PCC as to whether its Code will reflect both the rights accorded by Article 8, and the extent of those rights as determined in this case by the ECHR.

Jonathan Coad


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