The European Court of Human Rights in Strasbourg decided on Thursday (16 January) that publishing photos from the wedding of two celebrities in a magazine without their consent, as long as the photos were not taken at the ceremony per se, but outside of the ceremony location, is not a violation of the right to private life as it is enshrined in Article 8 of the European Convention of Human Rights.
The Court decided in its Lillo Stenberg and SÆTHER v. Norway decision (Application no. 13258/09) that “a wedding has a public side” (para. 37), hence “the publication of an article about a wedding cannot itself relate exclusively to details of a person’s private life and have the sole aim of satisfying public curiosity in that respect (see, Von Hannover (no. 2), § 110). It (the Court – n.n.) therefore considers that there was an element of general interest in the article about the applicants’ wedding” (para. 37).
In this regard, the Court entirely admitted the argument of the Supreme Court of Norway, which stated in a decision concerning the facts of the case that “a wedding is a very personal act. At the same time it also has a public side. A wedding is a public affirmation that two persons intend to live together, and has legal consequences in many different sectors of society. Thus information about a wedding does not in itself involve a violation of privacy if it is given in a natural form and based on a reliable source” (see para. 37 of the ECHR Decision).
According to the facts of the case, the first applicant is a musician and the second applicant is an actress. They are both known to the public in Norway. On 20 August 2005, the applicants married in a private ceremony which took place outdoors on an islet in the municipality of Tjøme in the Oslo fjord, approximately 100 km south of the capital. The weekly magazine Se og Hør published a two-page article about the wedding, accompanied by six photographs. The photographs were taken without the consent of the applicants and outside of the premises of the wedding.
Highlights of the judgment
A. Criteria to assess the balance between freedom of expression and the right to private life
The Court reiterated the specific criteria it uses to assess which right prevails in a certain situation – freedom of expression or the right to private life:
“(i) contribution to a debate of general interest
(ii) how well known is the person concerned and what is the subject of the report?
(iii) prior conduct of the person concerned
(iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken
(v) content, form and consequences of the publication.”
(see para. 34 of the current case, Von Hannover (no. 2), paras. 109‑113, and Axel Springer AG, paras. 89-95).
B. Interference with dignity to weigh in between freedom of expression and private life?
Without clearly indicating in the wording of the judgment that it rallies with the point of view of the Norwegian Supreme Court, ECHR pointed out one of the arguments used by the Supreme Court which indicates that an interference with dignity is able to decisively lean in towards the protection of private life or freedom of expression.
“It [the Supreme Court – n.] also pointed out that neither the text nor the photographs in the disputed magazine article contained anything unfavourable to the applicants. It did not contain any criticism, nor was there anything in the content that could damage their reputation“ (see para. 41).
C. The implied legitimate expectation of privacy
ECHR accepted the Supreme Court’s view that “since the ceremony took place in an area that was accessible to the public, easily visible, and a popular holiday location, it was likely to attract attention by third parties”, hence “these elements should also be given a certain amount of weight” (see para. 43).
D. The increased autonomy of the national courts
Finally, I have to point out to the reiteration of the ECHR that “although opinions may differ on the outcome of a judgment, where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case‑law, the Court would require strong reasons to substitute its view for that of the domestic courts” (see para. 44).
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