Privacy vs. free speech
By Marina Küchen Posted Jan 1 2005
EPA/Christian Hartmann
The European Court of Human Righs decided celebrities' privacy rights can be more important than press freedom.
Journalists in Germany fear a serious threat to press freedom after a court ruling curtailed media reporting on the private lives of public figures. A ruling by the European Court of Human Rights said that photos published of Princess Caroline of Monaco in German magazines violate her privacy rights. The so-called Caroline order became legally binding in September 2004.
Caroline fought her way in every single German judicial authority through Hamburg’s celebrity lawyer Matthias Prinz. The judges in Strasbourg eventually ruled that the unauthorized publishing of photographs that show her eating, swimming, shopping, biking or riding a horse to be a violation of her right to privacy. That makes it illegal in the future to take a picture of the princess without permission unless she is acting in her royal capacity.
The German Federal Constitutional Court emphasizes that public figures also serve as role models in society. In that sense, it had been possible until now to report on “figures of contemporary history” to a certain length beyond the spotlight without them being able to do anything about it.
But the court order from Strasbourg strengthened the privacy rights of celebrities. While the court emphasized the “watchdog role” of the press in a democratic society – granting the right to spread information and ideas, also in the form of pictures – it said the press has to contribute to a debate of “public interest.” Entertainment, or simply the satisfaction of curiosity, is not enough reason to publish anymore. For journalists in Germany, one question is now gaining prominence: How is one supposed to know in advance whether or not a report contributes to a debate, and how is “public interest” defined?
Photographs that show Caroline shopping for a fur coat can still be printed – the debate of fur and animal husbandry has been engaging the public for a long time. However, pictures that show Caroline leaving her house are now forbidden without her permission. If she meets her stable boy in a coffeehouse, photos must not be published either. The German yellow press, which sells 20 million magazines a week, could be deprived of its main source of income. Journalists are becoming cautious; one better consult the legal department first to estimate the legal and financial consequences of a print.
Privacy law has become a profitable business, especially for the lawyers of celebrities who commend the Strasbourg court order as a “milestone for the privacy protection of prominent figures.” The former director of the German Press Council Dorothee Bölke, a lawyer, has represented the newsmagazine Der Spiegel for years. She has noticed that celebrity lawyers have already started to exploit Strasbourg’s court order. “Litigations are going to be on the increase, forces will be bound by law suits, the financial risk for media outlets is rising,” she forecasts.
Besides their lawyers, the VIPs themselves can also benefit from the court ruling by setting the price of photographs from their wedding and of their children and houses even higher. Supermodel Claudia Schiffer, for instance, prohibited photos of her son, but not much later pictures of both of them adorned the catalogue of Quelle, one of Germany’s major mail order companies.
When it comes to politicians, circumstances look different. When the Minister of Foreign Affairs Joschka Fischer goes shopping with an unknown young woman, the paparazzi are allowed to keep on snapping because Fischer holds a public office. The trust of the public is essential for his election, hence he is encouraged not to commit a lapse even in his private life. For politicians only the sphere of intimacy is essentially protected; however, shades of grey emerge where the political crosses the private sphere.
It is also not clear what the Caroline court order means for German jurisprudence. The coverage of the private lives of so-called “absolute figures of contemporary history” is becoming harder. The decision of the judges in Strasbourg asserted a violation of the European Convention of Human Rights, and according to article 46 of this convention, Germany is required to follow the decision.
How exactly it will be enforced remains unclear. Two basic rights, the right to privacy and the right of free speech stand against each other. After the judgment, Caroline can sue Germany for damages.
It is an important aspect in the development of the Caroline case that the German government did not appeal the court ruling, although Attorney General Brigitte Zypries, Minister of Commerce Wolfgang Clement, and State Secretary for Culture and Media Christina Weiss advocated an appeal. Editors, publishers and journalist organizations strongly protested against the court order and called it censorship. But, obviously, too many of the cabinet members have had their own experiences with the press. And while many of them benefit from deliberate media staging, they now have the opportunity, based on Goethe’s “Sorcerer’s Apprentice,” to be delivered from the spirits that they called or at least to immensely constrain their work. Forget about the media’s constitutional role to inform the public.
The government declared the ruling will not have any consequences and the primal legal situation would remain unaffected. This is only partially correct. In the long run one has to expect changes, namely whether German courts will grant more weight to the Strasbourg order in their judgments than they actually have to. Such cases can already be observed.
The Manager Magazin ran a story on the German business family Otto in May. They wrote the brother of the Otto director should expect to pay a huge alimony to his wife in case of his expected divorce in the United States. The article speculated about possible impacts for the Otto group. A divorce is still a private concern, but as soon as it can have consequences for a large company, coverage has always been appropriate, according to previous arguments, because the public has a right to be informed. But the Berlin District Court conceded the case to the plaintiff, Otto, and verbally referred to the decision of the Strasbourg judges.
The answer of the German Federal Constitutional Court to Strasbourg came soon: A bare two weeks after the Caroline ruling went into effect, the constitutional court decided that rulings of the European Court of Human Rights are not binding for German courts.
Though the German judiciary would have to consider the Strasbourg judgment and adapt it “gently,” a “schematic enforcement” of the judgment would be out of the question in most cases. The European Convention for Human Rights, which was transformed into German law in 1953 as an international treaty, has “the status of a federal law.” Therefore, the Basic Constitutional Law of Germany takes priority. Practice will have to prove what that means in detail for the work of German journalists.
It is absolutely possible that the European Court of Human Rights will oppose the decision made by the German court in the course of a future case of similar nature. Experts say in that case the struggle for competence and power between Strasbourg and the German Federal Constitutional Court would become a case for the Committee of Ministers of the Council of Europe.
Despite all that, the judgment of Strasbourg will creep in the German judiciary even if it doesn’t bind German judges. Judicial practice will have a bigger impact on media coverage in the future. The Strasbourg ruling may concern not only pictures but also be applied to textual press coverage. It is questionable how far press freedom, let alone the public mission to inform, can be guaranteed under such circumstances. At the moment, a debate of whether coverage of misconduct of prominent figures is allowed at all is bursting open in legal circles.
The Caroline court order shook the German media tremendously. It created uncertainty that makes many journalists and publishers extra cautious.