An imminent judgment of the European Court of Human Rights is expected to bring unprecedented clarity to the vexed question of privacy in relation to media reporting on public figures. HOUMAN BAREKAT spoke to prominent media lawyer PROF. DR MATTHIAS PRINZ, the lead lawyer on the case, about the potential impact of the decision.
When the European Court of Human Rights handed down its verdict in the 2004 case of von Hannover v Germany, commentators hailed a legal landmark. The Court's message was clear: the general public did not have a legitimate interest in knowing the private business of Princess Caroline of Monaco, unless such information could be shown to contribute to “a debate of general interest” to the public. The decision precipitated a spate of high-profile privacy cases in the UK, as a colourful array of film stars, supermodels and adulterers looked to the courts to protect them against the intrusive practices of overzealous paparazzi. The UK judiciary, historically reticent on the issue of privacy, found itself having to give domestic effect to the Strasbourg judgment without impinging on freedom of speech and the long-standing prerogatives of the tabloid press. That a general 'right to privacy' was inevitably taking shape was clear enough, but a definitive, authoritative statement on the nature and extent of this right remained as elusive as ever. Today, with Princess Caroline back before the Strasbourg court, we may be on the cusp of a breakthrough.
Last October, the princess brought a new claim in the European Court of Human Rights, in connection with the German courts' refusal to grant an injunction restraining publication of personal family photographs in the German magazines Frau im Spiegel and Frau Aktuell. In immediately fast-tracking the new claim to its Grand Chamber, and allocating a panel of no fewer than 17 senior judges to hear it (Max Mosley’s case was heard by a mere seven), the Court indicated an intention to lay down a comprehensive marker and put an end to the considerable uncertainty in this area. Following several months' deliberation, the Court is expected to hand down its verdict any day now. Prof. Dr Matthias Prinz, of Hamburg law firm Prinz Neidhardt Engelschall, is representing Princess Caroline in this case. He believes the significance of the decision will easily eclipse that of the first von Hannover case: “This time the court may provide very specific guidelines – these 17 judges may, for the first time, actually define the right of privacy.”
The imminent ruling is expected to address, in particular, the relationship between Articles 8 (the right to privacy) and 10 (the right to free speech) of the European Convention of Human Rights. For Prinz (pictured), it is a question of striking a sensible balance: “The press has an important role in society, as a public watchdog. But nobody should have to accept being used for other people's entertainment.” He advocates a distinction between what is genuinely in the public interest and the sort of prurient voyeurism that has become such a staple of tabloid journalism – echoing the “debate of general interest” test alluded to, but never satisfactorily elucidated, in the first von Hannover case. It's a far cry from the pre-2004 approach of the German courts, which identified all “persons of absolute public interest” as fair game for the paparazzi.
The Strasbourg court faces a double challenge: laying down a comprehensive set of guidelines is one thing; managing the response of a sceptical public is quite another. The von Hannover case will have a far-reaching impact on UK law, and the Court finds itself in an unenviable position: the further it seeks to consolidate the right of privacy, the greater the inevitable hostility from a popular press whose commitment to celebrity tittle-tattle is matched only by its visceral antipathy towards Strasbourg’s jurisdiction.
These are interesting times for media lawyers and for journalism in general. “Reputation protection is changing faster than any other area of law,” explains Prinz, “Not least because the media themselves are changing so rapidly. Not only from a technological point of view, but also in terms of the variety of subjects they are interested in.” In a world of 24-hour coverage and cyber gossip, the legal framework has lagged behind for some time. The first von Hannover case was, in retrospect, something of a false dawn; the second will not put an end to the controversy, but it should, at the very least, provide some long-overdue clarity.