Article 8 vs. Article 10 0

It all burns down to proportionality -- if the sacrifice of one value has been disproportionate then we rule in favor of the sacrificed value.

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Dean spielmann 255x203

Interview with Dean Spielmann, Judge of the European Court of Human Rights

Are there any general criteria that the European Court of Human Rights follows when measuring freedom of the press against the right to privacy?

I think there is one general criterion, which has to be appraised in the particular circumstances of the case, the principle of proportionality. That is a notion we apply in each case, but it depends on the circumstances of the case if the interference is disproportionate or not. It also depends on the values that are at stake. On the one hand, the entitlement of the public to receive information, and, on the other hand, the entitlement of the person to have his or her privacy respected. If you sacrifice one of the values you have to strongly consider the proportionality issue. I think that the issue of proportionality is present in all cases as a general notion.

Public interest is one of the factors considered when balancing privacy against press freedom. What are the circumstances that allow you to determine that in a particular case public interest takes priority?

Public interest, of course, is closely linked to the notion of necessity in a democratic society. If it is a political debate, which is necessary in a democratic society, because a society without such debate cannot call itself democratic, then it is clearly in the public interest. The problem arises in those cases when there is an interest from the public to receive information about someone’s private life. And then you have to look at the person at the heart of the case -- whether it is a public figure or a private figure. Even a public figure has the right to a certain degree of privacy. If it is a public figure then it is clearly in the public interest to know how that public person behaves. But does it go as far as intruding into the very core of his private life, into his sexual life, for instance? That is another question. There might be limits and, as the Court has said, even a public figure has the right to privacy to a certain extent. Von Hannover case[1] made it clear that the Princess, a “figure of contemporary society ‘par excellence’”, also has the right to protection of her private life. But the Court also insisted on the fact that the Princess did not have a public function as a politician. The case might have had a different verdict if she had to perform public duties.

In other words, if the case concerns, for example, a famous football player, it would differ from the one concerning a politician?

Yes, but local courts and the European Court also consider the context of the debate. A politician who is constantly claiming that morals should be respected is, of course, exposed to scrutiny concerning his own personal life, because if it contradicts his claims he loses credibility. So, it is the figure in question that is being considered but also the context of the debate.

What about the relatives of public figures? The first case of press freedom v. right to privacy in Latvia involved a relative of a former politician. What is the difference between a public figure and his or her family member?

You should never forget that human rights are always individual rights. It is not because your husband is a politician that you waive your own rights. What might be acceptable for publication concerning a politician might not be acceptable if it involves his children or spouse. For example, in the Von Hannover case the German courts took into consideration this aspect and had ruled that close relatives are entitled to protection. I think there is a clear difference between public figures and relatives who are not necessarily public figures. They might be public figures, of course, if they waive their rights voluntarily. There was a case of a television presenter who, started revealing details of his personal life. The judge granted an interim injunction to restrain publication of photographs, although he declined to stop publication in a newspaper of the fact that the presenter had visited the brothel and engaged in sexual activity there or of details of those activities[2]. In this case one can say that he waived to a certain extent his rights to privacy and cannot complain afterwards if the press revealed other details. So there is also the issue of attitude of the person concerned prior to the publication of personal details. But, as I said, it all depends on the circumstances of the case; you always have to take into account all the factors before deciding if freedom of the press prevails or not.

I understand that there is no general list of factors that are considered, but I wonder if you could expand on the circumstances of, say, Von Hannover v. Germany? What were the specific issues taken in to account?

First of all, the German courts have quite an extensive case law on the notion of public figures. They draw a very subtle distinction between “absolute public figures” and “relative public figures”. An absolute public figure is open to quite a wide scrutiny by the press, whereas in the case of a relative public figure the scrutiny might be narrower. That was precisely the reason why the Constitutional Court ruled against Princess Von Hannover -- she was undeniably a contemporary public figure and had to tolerate the publication of photographs in media. As I said earlier, the Federal Constitutional Court granted the applicant’s injunction regarding the photographs in which she appeared with her children on the ground that their need for protection of their intimacy was greater than that of adults. But, concerning the Princess herself, the Court ruled against her. But the decisive factor in the ECHR ruling was that there was no real contribution to the general public debate. That was one of the factors that the Court took into account. The photographs in question were of an entirely private nature; they provided no contribution to a debate of public interest. The second factor to be taken into account was that the Princess had a legitimate expectation to be left alone in such circumstances.

Different countries have different understandings of how wide the borders of freedom of expression really are. In some countries, Holocaust denial is a crime, in others, an exercise of freedom of expression. Has the Court had to deal with such cases?

We have not had many cases on this issue. But in the cases we have we go as far as saying that this is an abuse of rights. To a person who claims that he has the right to deny Holocaust, we say that, under Article 17 of the Convention, which prohibits abuse of rights, there is no issue of freedom of expression because the Convention itself has precluded him from bringing the case to Strasbourg. Article 17 says there is no liberty for the enemies of liberty.

For example, in the case of Garaudy v. France[3], the Court has held that the main content and general tenor of the applicant's book, and thus its aim, are markedly revisionist and therefore run counter to the fundamental values of the Convention, as expressed in its Preamble, namely justice and peace. It considered that the applicant attempts to deflect Article 10 of the Convention from its real purpose by using his right to freedom of expression for ends which are contrary to the text and spirit of the Convention. Such ends, if admitted, would contribute to the destruction of the rights and freedoms guaranteed by the Convention.

Accordingly, the Court considered that, in accordance with Article 17 of the Convention, the applicant could not rely on the provisions of Article 10 of the Convention regarding his conviction for denying crimes against humanity.

And, precisely when it comes to such questions as promoting racism, hate speech, or Holocaust denial, we always say that there is no protection under Article 10 of the Convention.

An increasing volume of private information reaches the public through the Internet and numerous sites feature products created by the web users themselves. Has the Court had cases of someone complaining about violation of his privacy on the Internet?

We do not have many cases concerning the Internet yet, but there could be in the future. Almost every European state has legislation tackling these issues. An applicant turning to the ECHR could either be a person whose privacy rights have been infringed, saying that his rights have not been protected sufficiently, or a person who wants to publish information under Article 10. Article 10 does not apply exclusively to journalists, but in general promotes freedom of expression.

Finding the balance between two conflicting human rights seems an impossible task. How do you find this balance?

It all burns down to the issue of proportionality. If sacrifice of one value has been disproportionate then we rule in favor of the sacrificed value. It really depends on the circumstances of the case and also on the issue if the protected value is at the heart of privacy or on the boundaries of it. For example, the tax assessment case[4]. You cannot say that tax assessment of a public figure is at the heart of privacy. It might be covered by privacy in certain circumstances, but it is on the periphery of privacy. There is clearly a presumption in favor of freedom of expression in such a case and you have to balance it against other value, i.e. not to publish tax assessments. But tax assessments are not at the very heart of privacy. I could imagine that intimate life of a person is at the very core of privacy rights whereas his relations with state administration when it comes to tax issues may be covered by privacy, but not necessarily. And then, if you weigh up these rights, in the Fressoz and Roire v. France case, the balance clearly shifts towards freedom of expression, particularly because at the time a public debate was going on related to the issue of pay rise.


[1] Von Hannover v. Germany, no. 59320/00, ECHR 2004‑VI.
Princess Caroline von Hannover had unsuccessfully applied to the German courts for an injunction preventing any further publication of a series of photographs, which had appeared in the 1990s in the German magazines Bunte, Freizeit Revue and Neue Post. She claimed that they infringed her right to protection of her private life and her right to control the use of her image. On 15 December 1999, the Federal Constitutional Court granted the applicant’s injunction regarding the photographs in which she appeared with her children on the ground that their need for protection of their intimacy was greater than that of adults. However, the Constitutional Court considered that the applicant had to tolerate the publication of photographs of herself in a public place. In the case Von Hannover v. Germany the ECHR ruled that there had been a violation of Article 8 of the European Convention on Human Rights (right to respect for private life).

[2] Theakston v. MGN [2002] EMLR 398, Ouseley J. quoted by E. Barendt, Freedom of Speech, 2nd ed., Oxford University Press, 2006, at 239.

[3] Garaudy v. France, (dec.),no. 65831/01, ECHR 2003‑IX (extracts).

[4] Fressoz and Roire v. France [GC], no. 29183/95, § …, ECHR 1999‑I.
Fressoz and Roire worked for the satirical newspaper Canard enchaine. Following an industrial dispute within the Peugeot company, the Canard enchaine published an article by Roire referring to salary increases awarded to Calvet, Peugeot's Chairman and Managing Director. The article was accompanied by photocopies of extracts from Calvet's tax assessments. Following a complaint by Calvet, criminal proceedings were brought against Fressoz and Roire for receiving photocopies that had been obtained through a breach of a duty of confidentiality by an unidentified tax official. The Paris Court of Appeal sentenced the applicants to a fine and damages. The ECHR ruled that the applicant's conviction was an interference with the exercise of their right to freedom of expression as guaranteed under Article 10 of the Convention. The Court stated that the information was of public interest because it showed that Peugeot's chairman received large pay increases while opposing his employee's claims for a pay raise.

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