CASE OF VON HANNOVER v. GERMANY (No. 2)
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Christos Rozakis;Françoise Tulkens;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
10. The applicants, who are the elder daughter of the late Prince Rainier III of Monaco and her husband, were born in 1957 and 1954 respectively and live in Monaco. 11. Since the early 1990s the first applicant has been trying – often through the courts – to prevent the publication of photos about her private life in the press. 12. Two series of photos, published in 1993 and 1997 respectively in three German magazines and showing the first applicant with the actor Vincent Lindon or her husband, had been the subject of three sets of proceedings in the German courts and, in particular, leading judgments of the Federal Court of Justice of 19 December 1995 and of the Federal Constitutional Court of 15 December 1999 dismissing the first applicant’s claims. 13. Those proceedings were the subject of the Von Hannover v. Germany judgment of 24 June 2004 (no. 59320/00, ECHR 2004VI) in which the Court held that the court decisions had infringed the first applicant’s right to respect for her private life, a right guaranteed by Article 8 of the Convention. 14. Regarding the reasoning of the domestic courts, the Court made the following findings in particular: “72. The Court finds it hard to agree 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.” 15. Relying on the Court’s judgment in the first applicant’s case, the applicants subsequently brought several sets of proceedings in the civil courts seeking an injunction against any further publication of photos that had appeared in German magazines. 16. The first three photos were published by the publishing company Ehrlich & Sohn GmbH & Co. KG in the magazine Frau im Spiegel. 17. The first photo, which appeared in issue no. 9/02 of 20 February 2002, shows the applicants out for a walk during their skiing holiday in St Moritz. It is accompanied by an article with the heading: “Prince Rainier – not home alone” (“Fürst Rainier – Nicht allein zu Haus”). The article reads as follows. “The first magnolia buds are flowering in the grounds of Monaco Palace – but Prince Rainier (78) appears to have no interest in the burgeoning spring. He goes for a walk outside with his daughter Stéphanie (37). She supports him as he walks along slowly. He is cold despite the sunshine. The old gentleman is weary. The Monegasques saw their prince for the last time three weeks ago at a circus festival. He had appeared bright and cheerful, walking along beside his daughter who was laughing. But since then he has not left the palace. Not even for the St Devota celebration held in honour of the national Patron Saint. The Principality is worried, as are Prince Rainier’s children. Prince Albert (who is currently taking part in the Olympic Games in Salt Lake City), Princess Caroline (on holiday in St Moritz with Prince Ernst August von Hannover) and Princess Stéphanie take it in turns to look after their father. He must not be left home alone when he is not well. Not without his children’s love.” A photo of Prince Rainier with his daughter Princess Stéphanie and a photo of Prince Albert of Monaco taken during the Olympic Games in Salt Lake City appeared on the same page. 18. The second photo, which appeared in issue no. 9/03 of 20 February 2003, shows the applicants out for a walk in St Moritz. The caption says: “Ernst August von Hannover and his wife, Princess Caroline of Monaco, enjoy the sun and snow in St Moritz.” A small photo of Prince Albert and two photos of members of a European royal family appeared on the same page. The article accompanying the photos, bearing the heading “Royal fun in the snow”, is about how happy the persons photographed are to meet up in St Moritz. 19. The third photo, which appeared in issue no. 12/04 of 11 March 2004, shows the applicants in a chair lift in Zürs am Arlberg during their skiing holiday. On the same page there is a small photo of Prince Rainier, the first applicant and Prince Albert, taken during the national holiday on 19 November and bearing the heading “The princess’s last appearance”. Another photo, taking up half the page, shows the first applicant at the Rose Ball. The three photos illustrate an article bearing the heading “Princess Caroline. The whole of Monaco awaits her”, of which the passages relevant to the present case read as follows. “Tickets for the Rose Ball, which will be held on 20 March in Monaco, have been selling for weeks. And the guests will be coming only for her: Princess Caroline von Hannover (47). She has not attended any official engagements since the national holiday ... She was not at the circus festival or the St Devota celebration held in honour of the patron saint of Monaco. By tradition, the eldest daughter of Prince Rainier (80) opens the annual ball. She has inherited this role from her mother, who died in an accident, and this ball is Caroline’s favourite ... The prince, who is seriously ill, has just come out of hospital after a heart operation and is still too weak to attend the ball. The welcome speech which he will be making in honour of the guests will be retransmitted via television cameras and projected onto a big screen. Princess Caroline and her husband [Prince] Ernst August von Hannover will open the Rose Ball with a waltz. They celebrated their fifth wedding anniversary together in January. And there was more cause for celebration in the von Hannover household: the prince turned 50 on 26 February. He celebrated his birthday with Caroline and some friends at the fashionable resort of St Moritz, glistening white in the snow. The couple were actually spending their holiday in Zürs am Arlberg, but for the birthday party they went down to the Palace Hotel in St Moritz for a few days.” 20. The publishing company WZV Westdeutsche Zeitschriftenverlag GmbH & Co. KG published in issue no. 9/02 of 20 February 2002 of the magazine Frau Aktuell the same photo (or a virtually identical one) as the one that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above). The article accompanying the photo in Frau Aktuell bears the heading: “That is genuine love. Princess Stéphanie. She is the only one looking after the sick prince.” The relevant passages of the article are worded as follows. “Her love life may appear unbridled. One thing is certain, though: as far as her father is concerned, Princess Stéphanie knows where her heart lies. While the rest of the family are travelling around the world, she has run to be at the side of Prince Rainier (78), who appears to be seriously ailing. She is the only one who takes care of the sick monarch. Stéphanie’s sister, Caroline (45), has taken a few days’ holiday with her husband Ernst August (48) and their daughter Alexandra (2) at the fashionable St Moritz ski resort in Switzerland. Prince Albert, for his part, has been at the Olympic Games in Salt Lake City taking part in the four-man bobsleigh race. ‘For the fifth and last time,’ he said. From time to time he would disappear for a number of days. It is said that the prince has seen his heart-throb, Alicia Warlick (24), an American pole vaulter who is rumoured to become his future wife. [Prince Rainier], who hates being alone now, was very glad to see his younger daughter. Stéphanie has devoted a lot of time to him. She has been out on long walks with him and they have greatly confided in each other. ‘Rainier has relished the company of his younger daughter. When she is at his side he truly flourishes. During those moments he forgets that he is old and sick,’ say the Monegasques. ‘Stéphanie should come much more often.’” On the same page there is the photo of Princess Stéphanie with her father that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above), a headshot of her and two other photos, one of Prince Albert alone and the other of the prince with Alicia Warlick. 21. On an unspecified date in 2004, the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the three photos by the Ehrlich & Sohn publishing company. 22. In a judgment of 29 April 2005, the Regional Court granted the injunction on the ground that the first applicant had not consented to publication of the photos, which was a precondition under section 22 of the Copyright (Arts Domain) Act (hereafter “the Copyright Act” – see paragraph 70 below). The court stated, however, that even if consent were deemed unnecessary in the case of the first photo on the ground that it was an image from contemporary society (Bildnis aus dem Bereich der Zeitgeschichte) within the meaning of section 23(1)(1) of the same Act, publication of the photo was not justified. Under subsection 2 of that provision, publication of such an image was only lawful if it did not interfere with a legitimate interest of the person photographed. According to the court, the question as to whether there was such a legitimate interest had to be determined by balancing the interests of the person photographed against those of the public in being informed. 23. The Regional Court found that in the present case it was the first applicant’s right to the protection of her personality rights that prevailed. In reaching that conclusion the Regional Court referred extensively to the Court’s judgment in Von Hannover. It found that the first applicant’s relationship with her father, regardless of the fact that he was ill, did not contribute to a debate of general interest to society especially as the first applicant was connected to the prince of a State of minor importance in international politics merely through a family tie and did not exercise any official function. 24. The Regional Court stated that, whilst that reasoning was not entirely in keeping with the principles established by the Federal Constitutional Court, which did not recognise a legitimate interest unless the person photographed had retired to a secluded place away from the public eye, it was not bound by that precedent to the extent that it could not take into consideration the Court’s case-law on the subject. 25. The publishing company appealed against that judgment. 26. In a judgment of 31 January 2006, the Hamburg Court of Appeal set aside the judgment on the ground that the applicant’s right under Article 8 of the Convention had to yield to the fundamental rights of the press. It found that, whilst the articles were primarily of entertainment value, publication of the photos was nonetheless lawful in terms of the judgment of the Federal Constitutional Court of 15 December 1999 whose main legal reasoning (tragende Erwägungen) was binding on the Court of Appeal. It pointed out that public figures should certainly be protected from the risk of being photographed at any time and anywhere and seeing the photos subsequently published. However, in the Court of Appeal’s opinion, the legitimate interest of such figures, within the meaning of section 23(2) of the Copyright Act, should not result in the prohibition of any reporting on wellknown people outside their official appearances. In any event, the right to respect for private life did not require the banning of publication of photos taken in public places accessible to all and where the individual concerned was amongst many other people. 27. The first applicant appealed on points of law against that judgment. 28. In a judgment of 6 March 2007 (no. VI ZR 51/06), the Federal Court of Justice dismissed her appeal in respect of the first photo. With regard to the second and third photos, it upheld her appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court. 29. The Federal Court of Justice found that the opinion of the Court of Appeal did not correspond to the concept of graduated protection (abgestuftes Schutzkonzept) that had been developed in the case-law on the basis of sections 22 and 23 of the Copyright Act and which it had clarified in a number of recent decisions delivered following the Von Hannover judgment and in response to the reservations of principle which the Court had expressed in that judgment. According to that new concept of protection, section 23(1) of the Copyright Act, which provided for an exception to the rule according to which a photo could not be published without the prior consent of the person concerned, took account of the public’s interest in being informed and of the freedom of the press. Accordingly, when assessing whether or not the impugned publication portrayed an aspect of contemporary society within the meaning of section 23(1)(1) of the Copyright Act, a balancing exercise had to be undertaken between the rights under Articles 1 § 1 and 2 § 1 of the Basic Law and Article 8 of the Convention on the one hand, and those under Article 5 § 1, second sentence, of the Basic Law and Article 10 of the Convention on the other hand. 30. The Federal Court of Justice added that the Court’s criticism of the expression “figure of contemporary society par excellence” ultimately concerned the determination of the conditions in which the media could report on well-known people such as these. It considered that, irrespective of the issue whether the first applicant should be regarded as a figure of contemporary society par excellence, she was in any case a well-known person who particularly attracted public attention. In the court’s view, that fact, combined with the fact that she had not been in a secluded place out of the public eye when the photos had been taken, was nonetheless insufficient to deprive her of protection of her private sphere. That conclusion was not only appropriate in the light of the Court’s ruling but also reflected a proper understanding of the concept of protection thus developed. 31. Accordingly, the Federal Court of Justice found that the publication of images of persons who – on account of their importance in contemporary society – were in theory required, under section 23(1)(1) of the Copyright Act, to tolerate the publication of photos of themselves was nevertheless unlawful if the legitimate interests of the person concerned were infringed (section 23(2)). There could be no exception to the obligation to obtain the consent of the person in question unless the report in question concerned an important event of contemporary society. The expression “contemporary society” – and indeed the term “information value” – had to be interpreted in a broad sense and according to whether there was a public interest. It comprised any matter of general interest to society and included reports for entertainment purposes, which could also play a role in the formation of opinions, or even stimulate or influence these to a greater degree than purely factual information. 32. Whilst the freedom of the press and the prohibition of censorship required the press to be able to decide for itself which subjects it intended to report on and what it intended to publish, the press was not exempt from the duty to weigh its interest in publishing the information against the protection of the privacy of the person concerned. The greater the information value for the general public, the more the right to protection had to yield. Conversely, where the interest in informing the public decreased, the importance of protecting the person concerned carried correspondingly greater weight. The reader’s interest in being entertained generally carried less weight than that of protecting privacy, in which case the reader’s interest did not merit protection. 33. The Federal Court of Justice stated that, accordingly, even where persons who had hitherto been regarded as figures of contemporary society were concerned, consideration must be given to the question whether the report contributed to a factual debate (mit Sachgehalt) and whether the content went beyond a mere intention to satisfy public curiosity. In determining that question, there was nothing to prevent regard being had to how well the person concerned was known to the public. 34. The Federal Court of Justice stressed that that manner of balancing the various interests at stake corresponded to the requirements of the Court regarding effective protection of the private sphere and the requirements of the freedom of the press, and that it did not conflict with the binding force of the judgment of the Federal Constitutional Court of 15 December 1999. Admittedly, that court had limited the protection afforded to the private sphere against the publication of unwanted photos to cases of spatial seclusion. That did not, however, prevent the courts – when balancing the various interests – from having more regard to the value of the information for the public. Furthermore, the Federal Constitutional Court had [recently] endorsed the balancing exercise undertaken by the Federal Court of Justice according to those criteria in a judgment concerning the second applicant (decision of 13 June 2006, no. 1 BvR 565/06). 35. The Federal Court of Justice specified that as the determining criterion for the balancing exercise was the information value of the photo in question and as it had been published in the context of a written article, the content of the text accompanying the photo could not be ignored. 36. Applying the criteria thus established to the case submitted to it, the Federal Court of Justice, beginning with the second and third photos, observed that the second photo showed the applicants in a busy street in St Moritz during their skiing holiday. Whilst the press could, as a matter of principle, make its own decision regarding the content of its publications and the applicants had indeed been in a public place amongst other people, neither the article nor the photo related to an event of general interest or contemporary society. A celebrity’s holidays fell within the core area (Kernbereich) of his or her private sphere. The publication of the article and photo had been for entertainment purposes only and was not in any way relevant to matters of public interest, so could only be done with the first applicant’s consent. 37. The Federal Court of Justice noted that the third photo showed the applicants in a chair lift in Zürs during their skiing holiday. Whilst the Rose Ball shortly to be held in Monaco, which was the subject of the article accompanying the photo, could possibly be regarded as an event of contemporary society that was a matter of general interest to society, there was no link between the photo and that event. The purpose of the photo had been to supplement the part of the article about the second applicant’s birthday party in St Moritz and the applicants’ skiing holiday in Zürs. Thus the information centred exclusively on the first applicant’s private life and served merely entertainment purposes. Accordingly, the third photo could not be published without the first applicant’s consent either. 38. Regarding the first photo, the Federal Court of Justice observed that whilst it contained no information having any connection with an event of contemporary society or contributing to a debate of general interest, the same was not true of the accompanying text. Admittedly, the part about the first applicant’s skiing holiday did not concern an event of contemporary society or general interest, even interpreting those terms broadly. However, with regard to the prince’s health, the Federal Court of Justice found as follows: “The information also concerned the ill-health of the reigning Prince of Monaco. His ill-health was thus an event of contemporary society on which the press was entitled to report. The journalistic quality and the conception of the article are not decisive because the principle of the freedom of the press does not allow the applicability of a fundamental right to depend upon the quality of the press coverage or how the article is drafted. This also applies to the comments in the article on the conduct of members of the family during the prince’s illness, and, moreover, the applicant has not complained about the article in that respect. The photo in question supports and illustrates the information being conveyed.” 39. The Federal Court of Justice concluded that, in those circumstances and having regard to the context of the report as a whole, the first applicant had no legitimate interest that could have opposed publication of the photo of the applicants out in the street. There had, in particular, been nothing about the photo itself that constituted a violation (eigenständiger Verletzungseffekt) and thus justified a different conclusion; nor was there anything to suggest that the photo had been taken surreptitiously or by using secret technical devices that rendered its publication unlawful. 40. In a judgment of 26 February 2008, the First Division (Senat) of the Federal Constitutional Court dismissed constitutional appeals lodged by the first applicant (no. 1 BvR 1626/07) and by the Ehrlich & Sohn GmbH & Co. KG publishing company (no. 1 BvR 1602/07) against the judgment of the Federal Court of Justice (no. VI ZR 51/06). In the same judgment it allowed a constitutional appeal (no. 1 BvR 1606/07) lodged by the Klambt-Verlag GmbH & Co. publishing company against an injunction, imposed by the Federal Court of Justice (judgment of 6 March 2007, no. VI ZR 52/06), on any further publication of a photo that had appeared in 7 Tage magazine showing the applicants on holiday in an unspecified location and accompanying a written and photographic report on the possibility of renting a holiday villa owned by the von Hannover family in Kenya. Those proceedings are the subject of a separate application by the first applicant to the Court (no. 8772/10). 41. The Federal Constitutional Court observed, firstly, that the court decisions constituted an interference with the first applicant’s right to the protection of her personality rights guaranteed by Articles 1 § 1 and 2 § 1 of the Basic Law. There were limits on the protection afforded to that right and on the freedom of the press, however. The freedom of the press was subject to the restrictions laid down in sections 22 et seq. of the Copyright Act and Article 8 of the Convention, whilst the provisions of the Copyright Act and Article 10 of the Convention limited the right to the protection of personality rights. In the German legal order the Convention had the status of an ordinary federal law. At constitutional-law level, the rights and freedoms guaranteed by the Convention and the Court’s case-law served as guides to interpretation when determining the content and scope of a fundamental right. 42. The Federal Constitutional Court reiterated the case-law of the Court regarding Articles 8 and 10 of the Convention and its own case-law on the different fundamental rights at stake by referring to the principles established in its leading judgment of 15 December 1999 (Von Hannover, cited above, § 25). It added that in so far as an image did not itself make any contribution to the formation of public opinion, its information value had to be assessed in the context of the accompanying article. However, if that article was merely a pretext for publishing a photo of a well-known person, no contribution was made to the formation of public opinion and there were therefore no grounds for allowing the interest in publication to prevail over the protection of personality rights. 43. The Federal Constitutional Court went on to say that, in order to determine the weight to be attached to the protection of personality rights, regard had to be had not only to the circumstances in which the photo had been taken, for example whether it had been taken surreptitiously or as a result of persistent hounding by photographers, but also to the situation in which the person concerned had been photographed and how he or she was portrayed. The right to protection of personality rights thus carried more weight where the photo showed details of the person’s private life that were not normally the subject of public discussion. The same was true where the person concerned could legitimately expect, having regard to the circumstances, that no photo would be published because he or she was in a private place (räumliche Privatheit), such as in a specially protected location. The right to protection of personality rights could also prevail over the interest in publication in cases other than those of spatial isolation, notably where the person concerned was pictured enjoying a moment of relaxation or letting go, freed from the constraints of professional or everyday life. 44. The Federal Constitutional Court stated that importance had to be attached in that connection to the allocation of procedural obligations regarding the presentation of the facts and the burden of proof. It had to be ensured that neither the press nor the person being photographed was prevented from adducing proof of circumstances relevant for the balancing of the competing interests. Where the press intended to publish a photo without the consent of the person concerned, it could be required to substantiate the circumstances in which the photo had been taken in order to allow the courts to examine the question whether publication of the photo could be opposed on grounds of the legitimate expectations of the person photographed. 45. The Federal Constitutional Court observed that it was the task of the civil courts to apply and interpret the provisions of civil law in the light of the fundamental rights at stake while having regard to the Convention. It added that its own role was limited to examining whether the lower courts had had sufficient regard to the impact of fundamental rights when interpreting and applying the law and when balancing the competing rights. Such was also the scope of the scrutiny of the Constitutional Court regarding the question whether the courts had fulfilled their obligation to incorporate the Court’s relevant case-law into the national legal order (Teilrechtsordnung). The fact that the court’s balancing exercise of the various rights in multi-polar disputes – that is, disputes involving the interests of several different persons – and complex ones could also result in a different outcome was not sufficient reason for requiring the Federal Constitutional Court to correct a court decision. However, there would be a violation of the Constitution if the protective scope (Schutzbereich) or extent of a fundamental right had been wrongly determined and the balancing exercise were accordingly flawed, or if the requirements under constitutional law or the Convention had not been duly taken into account. 46. Applying those principles to the case submitted to it, the Federal Constitutional Court observed that the Federal Court of Justice and the criteria it had established were constitutionally unobjectionable. It considered in particular that nothing, from a constitutional-law perspective, had prevented the Federal Court of Justice from departing from its own established case-law in the field and developing a new concept of protection. The fact that it had not itself called into question, in its leading judgment of 15 December 1999, the former concept of protection established by the Federal Court of Justice merely meant that this had been in conformity with constitutional-law criteria. It did not mean, by extension, that a different concept could not meet those criteria. The Federal Court of Justice had not been prevented, in particular, from dispensing with the legal concept of “figure of contemporary society” and instead balancing the competing interests when examining the question whether a photo was an aspect of contemporary society and could accordingly be published without the consent of the person concerned (unless it interfered with a legitimate interest of the latter). 47. Applying the criteria thus established to the photos in question, starting with the second and third ones on which an injunction had been imposed by the courts and then challenged by the publishing company Ehrlich & Sohn (see paragraph 40 above), the Federal Constitutional Court noted that the Federal Court of Justice had had regard to the fact that the second photo showed the applicant in a public place which was neither isolated nor out of public view. It had attached decisive weight, however, to the fact that the article concerned only the applicant’s skiing holiday, that is, a situation falling within the core area of private life and concerning the applicant’s need for peace and quiet, and the consequent lack of public interest other than satisfying public curiosity. Contrary to the submissions of the publishing company, the readers’ interest in the applicant’s fashionable ski suit did not amount to a public interest. Moreover, that aspect had not been mentioned anywhere in the article. 48. In the opinion of the Federal Constitutional Court, the same conclusion had to be drawn with regard to the third photo whose publication had been challenged by the first applicant. There had been no public interest, beyond merely satisfying public curiosity, in the information contained in either the article commenting on the first applicant and her husband’s trip to St Moritz to celebrate the latter’s birthday or the photo showing them both in a chairlift. Whilst the article had also mentioned the Rose Ball – an event which, according to the Federal Court of Justice, could possibly be regarded as an aspect of contemporary society – no link had been made between that event and the photo. 49. With regard to the first photo, the Federal Constitutional Court found that the Federal Court of Justice had had valid grounds for considering that the reigning Prince of Monaco’s ill-health was a matter of general interest and that the press had accordingly been entitled to report on the manner in which the prince’s children reconciled their obligations of family solidarity with the legitimate needs of their private life, among which was the desire to go on holiday. The conclusion reached by the Federal Court of Justice, according to which the photo that had been published had a sufficiently close link with the event described in the article, was constitutionally unobjectionable. 50. The Federal Constitutional Court pointed out that the Federal Court of Justice had indicated that the protection of personality rights could prevail in cases where the photo in question had been taken in conditions that were particularly unfavourable for the person concerned, for example where it had been taken surreptitiously or following continual harassment by photographers. However, the publishing company had given details about how the photo had been taken and the first applicant had not complained before the lower civil courts or the Federal Court of Justice that those details were insufficient. In particular, she had not alleged that the photo had been taken in conditions that were unfavourable to her. 51. The Federal Constitutional Court also dismissed the first applicant’s allegation that the Federal Court of Justice had disregarded or taken insufficient account of the Court’s case-law. Pointing out that a complaint of that nature could be raised in constitutional proceedings if it was based on a fundamental right guaranteed by the Basic Law, it observed that the Federal Court of Justice had taken account of the judgments delivered in Von Hannover, cited above, and Karhuvaara and Iltalehti v. Finland (no. 53678/00, ECHR 2004X) and had not failed to comply with its obligation to satisfy the criteria established by the Convention. The Federal Constitutional Court had undertaken an analysis of the Court’s relevant case-law and observed that the Court’s decisive criterion when balancing the competing rights was the question whether the report in its entirety (article and photo) contributed to the free formation of public opinion. Furthermore, a distinction had to be drawn between political figures, public figures and ordinary individuals. Whilst the latter enjoyed the greatest protection of the three groups, political figures could expect only a small degree of protection from media reports about themselves. 52. According to the Court’s case-law (Gurguenidze v. Georgia, no. 71678/01, § 57, 17 October 2006, and Sciacca v. Italy, no. 50774/99, § 27, ECHR 2005-I), the first applicant was a public figure, which allowed the press – where there was an interest in informing the public – to publish photos, even of the person going about his or her daily business in public. Publication of that sort, which, moreover, attracted the protection of Article 10 of the Convention, could serve to exercise public scrutiny over the private conduct of persons who were influential in the economic, cultural or media sectors. The Federal Constitutional Court pointed out that the Court had previously criticised the approach taken by domestic courts which had applied over-restrictive criteria to the question whether the media were or were not reporting matters of public interest when they reported on circumstances relating to the private life of a person who was not part of political life (Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007). It was sufficient that the report concerned, at least to some degree, important matters relating to politics or another sphere (Karhuvaara and Iltalehti, cited above, § 45). 53. The Federal Constitutional Court concluded that the Federal Court of Justice had found in the present case that the report in question concerned important subjects in a democratic society. In its Von Hannover judgment, cited above, the Court had not categorically excluded the possibility that a report contributing to a debate about questions of interest to the public could be illustrated by photos showing a scene from the daily life of a political or public figure. Even though the Court had concluded in Von Hannover that the photos in question had not been of information valueand having regard to the Court’s case-law – that the photo in question was of information value was constitutionally unobjectionable. 54. On an unspecified date, the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the photo that had appeared in the magazine Frau Aktuell, issue no. 9/02 of 20 February 2002. 55. In a judgement of 1 July 2005, the Regional Court granted the applicant’s request. 56. In a judgment of 13 December 2005, the Hamburg Court of Appeal allowed an appeal lodged by the publishing company and set aside the Regional Court’s judgment. 57. In a judgment of 6 March 2007 (no. VI ZR 14/06), the Federal Court of Justice dismissed an appeal by the first applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 51/06 – see paragraphs 28-39 above). It stated that the first applicant had not argued before it – and nor was there anything to suggest – that the photo had been taken surreptitiously or with equivalent secret technical devices such as to render its publication unlawful. 58. In a decision of 16 June 2008 (no. 1 BvR 1625/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the first applicant. 59. On 30 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the Ehrlich & Sohn GmbH & Co. KG publishing company of the three photos that had appeared in the magazine Frau im Spiegel. 60. In a judgment of 1 July 2005, the Regional Court granted the injunction. 61. In a judgment of 31 January 2006, the Hamburg Court of Appeal allowed an appeal by the publishing company. 62. In a judgment of 6 March 2007 (no. VI ZR 50/06), the Federal Court of Justice dismissed an appeal on points of law by the second applicant in respect of the first photo. With regard to the second and third photos, it allowed the appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court. It based its conclusions on the same grounds as those set out in its judgment no. VI ZR 51/06 of the same day (see paragraphs 28-39 above). With regard to the second applicant’s high profile, it upheld the opinion of the Court of Appeal that he was well known to the public, in particular as the husband of the first applicant who was especially the subject of public attention. 63. In a decision of 16 June 2008 (no. 1 BvR 1624/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant. 64. On 29 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the WZV Westdeutsche Zeitschriftenverlag GmbH & Co KG publishing company of the photo that had appeared in the magazine Frau Aktuell. 65. In a judgment of 24 June 2005, the Regional Court granted the injunction. 66. In a judgment of 13 December 2005, the Hamburg Court of Appeal allowed an appeal by the publishing company. 67. In a judgment of 6 March 2007 (no. VI ZR 13/06), the Federal Court of Justice dismissed an appeal on points of law lodged by the second applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 14/06 – see paragraph 57 above). 68. In a decision of 16 June 2008 (no. 1 BvR 1622/07), a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant. 69. The relevant provisions of the Basic Law provide as follows. “The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it.” “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].” “1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting via the radio, television and cinema shall be guaranteed. There shall be no censorship. 2. These rights shall be subject to the limitations laid down by the provisions of the general laws and to statutory provisions for the protection of young people and to the obligation to respect personal honour [Recht der persönlichen Ehre].” 70. Section 22(1) of the Copyright (Arts Domain) Act (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie) provides that images can only be disseminated with the express consent of the person concerned. Section 23(1)(1) of the Act provides for exceptions to that rule, where the images portray an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) on condition that publication does not interfere with a legitimate interest (berechtigtes Interesse) of the person concerned (section 23(2)). 71. The relevant passages of this Resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998, read as follows. “1. The Assembly recalls the current affairs debate it held on the right to privacy during its September 1997 session, a few weeks after the accident which cost the Princess of Wales her life. 2. On that occasion, some people called for the protection of privacy, and in particular that of public figures, to be reinforced at the European level by means of a convention, while others believed that privacy was sufficiently protected by national legislation and the European Convention on Human Rights, and that freedom of expression should not be jeopardised. 3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights organised a hearing in Paris on 16 December 1997 with the participation of public figures or their representatives and the media. 4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights, has already been defined by the Assembly in the declaration on mass communication media and human rights, contained within Resolution 428 (1970), as ‘the right to live one’s own life with a minimum of interference’. 5. In view of the new communication technologies which make it possible to store and use personal data, the right to control one’s own data should be added to this definition. 6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people’s private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the 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 in 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. ...” 72. The Resolution of the Committee of Ministers (CM/ResDH(2007)124), including the Appendix (extracts), adopted on 31 October 2007 at the 1007th meeting of the Ministers’ Deputies, is worded as follows: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter ‘the Convention’ and ‘the Court’); Having regard to the judgments transmitted by the Court to the Committee once they had become final; Recalling that the violation of the Convention found by the Court in this case concerns a breach of the right to respect for private life of the applicant, Princess Caroline von Hannover, the eldest daughter of Prince Rainier III of Monaco, on account of [the] German courts’ refusal of her requests to prohibit publication of a series of photographs of her (see details in Appendix); Having invited the government of the respondent State to inform the Committee of the measures taken to comply with Germany’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment; Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention; Having satisfied itself that, within the time-limit set, the respondent State paid the applicant the just satisfaction provided in the judgment (see details in Appendix); Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of – individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and – general measures, preventing similar violations; DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close the examination of this case. Appendix to Resolution CM/ResDH(2007)124 Information about the measures to comply with the judgment in the case of ... I. Payment of just satisfaction and individual measures ... b) Individual measures Although it is possible under German law, the applicant did not take action to prevent further publication of the photographs in question after the European Court’s judgment, but took action against a similar photograph (see under “General Measures”, No. 4) below. According to information available to the Secretariat, the photographs at issue in the European Court’s judgment have not been reprinted by the German press. II. General measures – Publication and dissemination of the judgment of the European Court: The judgment has been widely published and discussed by the German legal community. As is the case with all judgments of the European Court against Germany it is publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link to the Court’s website for judgments in German (www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf _Deutsch/). Furthermore, the judgment was disseminated by letter of the Government Agent to the courts and justice authorities concerned. – Change of domestic case-law: When deciding upon similar cases, domestic courts have taken into account the judgment of the European Court, thus giving it direct effect in German law: 1) The partner of a famous singer successfully sued at the Berlin Court of Appeal (KG Urt. v. 29.10.2004, 9 W 128/04, Neue Juristische Wochenschrift, NJW, 2005, pp. 605-07). 2) The Convention’s principles as set out in the European Court’s judgments were also acknowledged, even though they were not directly relevant to the case, in a judgment of the Hamburg District Court forbidding commercial exploitation of the popularity of former Chancellor Schröder (AG Hamburg, Urt. v. 2.11.2004, 36A C 184/04, NJW-RR 2005, pp. 196-98). 3) On the basis of the judgment of the European Court, the German Federal Civil Court upheld a judgment allowing the publication of an article about fining the applicant’s husband for speeding on a French motorway. The Court stated that the public had a justified interest in this information as it constitutes an offence, making this behaviour the topic of a public discussion (BGH, Urt. v. 15.11.2005, VI ZR 286/04, available via www.bundesgerichtshof.de). 4) Concerning the applicant herself, in July 2005, the regional court of Hamburg (Landgericht), referring to the judgment of the European Court, decided in favour of the applicant, prohibiting the publication of a photograph showing her together with her husband in a St Moritz street during a skiing holiday. However, in December 2005, the second instance (Appeal Court of Hamburg, Oberlandesgericht) reversed this decision, basing its judgment rather on the case-law of the German Federal Constitutional Court (Bundesverfassungsgericht). Upon revision to the Federal Civil Court (Bundesgerichtshof) sought by the applicant, the Federal Civil Court on 6 March 2007 decided that the photograph in question may be published. In its reasoning the domestic court, balancing the different interests at stake, explicitly took into account the Convention’s requirements as set out in the European Court’s judgment (BGH, Urt. v. 6.3.2007, VI ZR 14/06 available via www.bundesgerichtshof.de). ...”