Proposals for new privacy legislation go to Cabinet next week. They are based on a human rights case Princess Caroline of Monaco fought and won, writes Lara Marlowe in Paris
In the context of a new privacy law in Ireland, the Minister for Justice Michael McDowell recently announced he will recommend that the June 2004 ruling by the European Court of Human Rights (ECHR) in the case of von Hannover v Germany be recognised in Irish law.
In that case, Princess Caroline of Monaco, who is married to Prince Ernst August of Hannover, sued the German state for failing to protect her right to privacy, which is enshrined by article 8 of the 1950 European Convention on Human Rights. Caroline won, and the German government was eventually ordered to pay her €115,000 in costs and damages.
"That an Irish minister wants to strengthen Ireland's privacy law based on this decision is exactly the result we feared," says Larry Kilman of the Paris-based World Association of Newspapers (WAN). The organisation for the newspaper industry represents 18,000 newspapers worldwide, including The Irish Times.
The case came to symbolise the tension between the right to privacy and the right to freedom of expression, both of which are guaranteed by the Convention on Human Rights. It has since been cited in Naomi Campbell's suit against a newspaper that printed photographs of her leaving an addiction clinic, and by Michael Douglas and Catherine Zeta-Jones when they sued Hello magazine over wedding photos.
Since 1993, Princess Caroline had pursued the German magazines Bunte, Neue Post and Freizeit Revue through five German courts, with limited success. Only a handful of the approximately 50 photographs Caroline objected to were banned for reprinting. Those showing her children Peter, Andrea and Charlotte were judged to infringe her right to family protection.
The German Federal Court of Justice banned a July 1993 photograph of Caroline with her then-boyfriend, the actor Vincent Lindon, at the back of a courtyard in a restaurant in Saint-Rémy-de-Provence.
"These photos are evidence of the tenderest romance of our time," the caption said. The couple "had retired to a secluded place . . . where . . . confident of being away from prying eyes, they behaved . . . in a manner in which they would not behave in a public place," the German court said.
But the German courts allowed distribution of a different photo of Caroline and Lindon in another restaurant, a March 1997 image of Caroline and Ernst August von Hannover at a horse show, under the title: "The kiss. Or: they're not hiding anymore", as well as pictures of Caroline walking, shopping, cycling, horseback riding and playing tennis. One series showed Caroline at the Monte Carlo Beach Club, wrapped in a towel, tripping and falling down, under the title "Ernst August played fisticuffs and Princess Caroline fell flat on her face".
In 1999, Germany's Constitutional Court ruled that Caroline was "a figure of contemporary society par excellence" and therefore had to put up with such intrusions. The fact that the photographs were taken for entertainment, not to inform, was considered irrelevant.
"Entertainment also plays a role in the formation of opinions," the German court said. "It can sometimes even stimulate or influence the formation of opinions more than purely factual information . . . The public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behaviour on their official engagements."
In her submission to the ECHR, Caroline said she was "constantly hounded by paparazzi who followed her every daily movement". In France, where she lives most of the time, the law requires her prior agreement for publication of any photos not showing her at an official event. But photographers frequently sold photos taken in France for publication in German.
"The protection of private life from which she benefited in France was therefore systematically circumvented by virtue of the decisions of the German courts," says the ECHR decision.
Although photographs also constitute freedom of expression, the ECHR said, "the present case does not concern the dissemination of 'ideas', but of images containing very personal or even intimate 'information' about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution."
Forty German newspaper and magazine editors asked Chancellor Gerhard Schroeder to appeal the decision because "the most important duty of the press - to closely watch the powerful - will be massively hindered". The government did not appeal.
WAN and the World Editors Forum also urged the German government to appeal on the grounds that if unchallenged, von Hannover v Germany "would have a significant and deleterious impact on freedom of the press in many parts of Europe". The requirement that photographs "contribute to . . . debate of general interest to society" was deemed particularly dangerous by newspaper editors. The Court ruled that "a fundamental distinction needs to be made between reporting facts - even controversial ones - capable of contributing to a debate in a democratic society . . . and reporting details of the private life of an individual, who, moreover, as in this case, does not exercise official functions."
All 25 EU states and the 46 members of the Council of Europe have incorporated the Convention on Human Rights in domestic law. Ireland's European Convention on Human Rights Act 2003 requires courts to "take notice" of any judgment of the ECHR.
It is not clear what more will be accomplished by Minister McDowell's proposal to specifically recognise von Hannover v Germany in Irish law.