![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
ABSTRACT
In its latest judgment dealing with the right to privacy of members of the Monegasque royal family the Grand Chamber of the Strasbourg Court developed the right to privacy of public figures and the defence of public interest. In a unanimous ruling, the Grand Chamber found a violation of the right to freedom of expression of the publishers of Paris Match. It considered that the public had a legitimate interest in being told that Prince Albert of Monaco had a son. The Court's judgment however, strongly affirmed the importance of the right to privacy and enhanced the protection of article 8 of the Convention in three ways. First, by asserting the limits of the public interest defence, which cannot be relied upon to justify publications concerning purely private matters that have the sole aim to satisfy the appetite of curious readers. Second, by confirming that the public interest defence is only available where the media acts in ‘good faith’ and that the veracity of a publication is an important consideration in privacy cases. Finally, by requiring consent in advance of publication of strictly private matters in the absence of overriding exceptional circumstances.
Acknowledgements
Many thanks are due to Judge Dean Spielmann and Professor Eric Barendt for their valuable comments on earlier versions of this case note. Please note that the views expressed in this case note are those of the author alone and do not necessarily reflect the views of any international organisation.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Leto Cariolou (LLB (King's College London), LLM and MA (University College London)), is a member of the board of the European Human Rights Law Institute, a Legal Officer at the UN Mechanism for International Criminal Tribunals, and was previously a Legal Officer at the European Court of Human Rights.
Notes
1 Von Hannover (no 2) v Germany 55 EHRR 15 [108]–[113]; Axel Springer AG v Germany (2012) 55 EHRR 6 [89]–[95].
2 Couderc and Hachette Filipacchi Associés v France, no 4045/07 10 November 2015 [2016] EMLR 19 [99].
3 Couderc (n 2) [89].
4 Couderc (n 2) [100].
5 Couderc (n 2) [89].
6 Couderc (n 2) [103].
7 Couderc (n 2) [101].
8 Von Hannover (no 2) v Germany 55 EHRR 15 [38], [117].
9 Couderc (n 2) [83]–[87].
10 Couderc (n 2) [115].
11 Couderc (n 2) [129].
12 Couderc (n 2) [124]–[125].
13 Standard Verlags GmbH v Austria (no 2), no 21277/05, 4 June 2009 [2009] ECHR 853.
14 Société Prisma Press v France (dec) no 66910/01, 1 July 2003. See also the similar reasoning adopted in the earlier decision in the case of Jaime Campmany y Diez de Revenga and Lopez-Galiacho Perona v Spain (dec), no 54224/00, ECHR 2000-XII, 12 December 2000 (‘Like the Spanish courts, the Court considers that as they concentrated on the purely private aspects of the life of those concerned and even though those persons were known to the public, the reports in issue cannot be regarded as having contributed to a debate on a matter of general interest to society’).
15 Von Hannover v Germany (2006) 43 EHRR 7 [65].
16 MGN Ltd v the UK [2011] EMLR 20 [143]; Hachette Filipacchi Associés (ICI PARIS) v France [2009] ECHR 1425 [40]; Standard Verlags GmbH v Austria (no 2) (n 13) [52].
17 Mosley v the UK (2011) 53 EHRR 30 [114] (‘Such reporting does not attract the robust protection of article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation’).
18 Couderc (n 2) [100].
19 Bédat v Switzerland, no 56925/08, judgement of 29 March 2016 [64]. The Court noted with approval in this respect the Swiss Federal Court's findings that the nature of the information provided no insights relevant to the public debate and the public's interest in the article ‘involved satisfying an unhealthy curiosity’. In Bédat the Court found that the ‘highly personal, and even medical” statements of the accused's wife and doctor and letters sent by the accused concerning aspects of his daily life in detention called for the highest level of protection under article 8 and did not contribute to any public debate on the ongoing investigation: Bédat [65]–[66], [76].
20 Couderc (n 2) [89], [131]–[136].
21 Couderc (n 2) [131]–[136].
22 Couderc (n 2) [133].
23 See, for instance, Rio Ferdinand v MGN Limited [2011] EWHC 2454 [67].
24 Couderc (n 2) [93]. Although the criteria set out in Von Hannover (no 2) v Germany were slightly different from those set out in Axel Springer AG v Germany (in Axel Springer the criteria included the way in which the information was obtained, its veracity, and the gravity of the penalty imposed) the Court explained in Couderc that the difference was because Axel Springer was lodged under article 10 and therefore not because Von Hannover (no 2) was a privacy and Axel Springer a libel case. See Couderc (n 2) [93]. In Couderc the Grand Chamber of the Court examined the additional criteria set out in Axel Springer and, by doing so, confirmed that in its view the assessment of the circumstances of a publication should be the same in both privacy and libel cases. This is consistent with the Court's approach in previous cases decided by different of its sections. See, for instance, Ojala and Etukeno Oy v Finland [2014] ECHR 36 [48], [51].
25 Couderc (n 2) [131]–[136].
26 Lord Justice Longmore's warning not to be sidetracked into the irrelevant inquiry as to the truth or falsity of the allegations – set out in the same case – rejected the respondent's argument that there was no right of privacy in relation to false statements. It should not be taken out of context. See McKennitt v Ash [2006] EWCA Civ 1714 [79].
27 Rio Ferdinand v MGN Limited [2011] EWHC 2454 [68].
28 Couderc (n 2) [132].
29 Couderc (n 2) [99].
30 Mosley (n 17) [132].
31 Mosley (n 17) [25].
32 Mosley (n 17) [125], [129].
33 Couderc (n 2) [99]; Ojala and Etukeno Oy v Finland (n 24) [54]–[55].
34 Couderc (n 2) [112]. The Court previously found ‘sufficient’ the reasoning of the Austrian courts distinguishing a politician's alleged marital problems from his or her state of health which, though belonging to the personal sphere, can have a bearing on the exercise of his or her functions in Standard Verlags GmbH v Austria (n 13) [51]–[52]. See also Éditions Plon v France (2006) 42 EHRR 36 [53].