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).
ECHR, on the private life of third parties in the context of telephone tapping authorised by a judge
The European Court of Human Rights gave its judgment yesterday in Case Pruteanu v. Romania (Case 30181/05), which concerns the complaint of a lawyer whose conversations with a client were intercepted by prosecutors in the context of a criminal case. The client was not a part of the criminal case, but he was an associate of the accused persons. The recordings were used in the criminal trial, where neither the lawyer, nor his client, were a part. The lawyer wanted to challenge the legality of the interceptions and to require their deletion, but was not able to do so.
The facts of the case bring forward the issue of the extent that third parties whose telephone conversations are recorded following an authorisation to intercept them issued on the name of someone else, enjoy the right to private life under Article 8 of the European Convention of Human Rights.
The Court emphasises in this judgment that an “effective control”, be it a posteriori, of an authorisation to intercept issued by a judge, exercised by a third-party to the authorisation to intercept, is necessary in order to make the interception compliant with the right to private life of the third party.
“On 1 September 2004 the commercial company M. was barred from carrying out bank transactions. The police received several criminal complaints against the company for deceit. One of the company’s partners, C.I., instructed the applicant as his defence lawyer. On 24 September 2004 the District Court authorised the prosecuting authorities to intercept and record the partners’ telephone conversations for a period of thirty days.
From 27 September to 27 October 2004 the fraud investigation unit intercepted and recorded C.I.’s conversations, including twelve conversations with the applicant. On 21 March 2005 the District Court held that the recordings were relevant to the criminal case against C.I.’s fellow partners in company M., and ordered that the transcripts and the tapes be placed under seal. Mr Pruteanu and C.I. both lodged appeals, which were declared inadmissible” (Source).
Findings of the Court
After stating that any interception of a conversation is an interference in the right to private life, the Court analysed whether this interference is necessary in a democratic society.
The Court notes that “the authorisation to record the conversations of C.I. was given by a tribunal. Nevertheless, that authorisation targeted C.I. and not the applicant, in such a way that it cannot be concluded that the tribunal had examined a priori the necessity of the measure regarding the person concerned. Furthermore, the Court recalls that it already rejected the argument which lead to consider that the mere fact that the person who issues an order and supervises the interceptions is a magistrate implies, ipso facto, the lawfulness and the conformity of the interceptions with Article 8 of the Convention, such a reasoning making any remedy for the interested parties inoperative” (para. 50, my translation; the Court refers here to Matheron case, para. 40).
Further, the Court considers it has to examine “if the applicant had the possibility to appeal a posteriori the recordings in order to control them” (para. 51, my translation).
Analysing the legislation in force at the time of the facts, the Court concluded that the applicant did not have legal standing to intervene in the criminal proceedings in which the recordings were used – “therefore, the applicant could not control, based on his own arguments, the legality and the necessity of the recordings, nor could he require the balancing of the interests of justice with his right to respect for private life and correspondence” (para. 52, my translation).
Considering the only way the applicant could have challenged the legality of the interceptions was during a criminal trial against himself or against his client, the Court concluded that “the accessibility of the remedy for the applicant must be considered uncertain” (para. 54, my translation).
As regards a civil action to request for damages (which was indicated by the Government as an alternative), the Court stated that “the Government did not provide any example of case-law which would prove the effectiveness of this particular remedy. In addition, a complaint in front of the civil judge regarding the pecuniary liability of the state does not have the nature to allow the control of the legality of the recordings and to lead, where appropriate, to a decision to order their destruction – a result sought by the applicant -, so as it cannot be seen as an effective control for the purposes of Article 8” (para. 55, my translation).
The applicant received 4.500 EUR as non-pecuniary damage.
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