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23.05.2016

ECtHR: Right to privacy not necessarily violated by repeated publication of private pictures

by Sofie Luise Burger
The European Court for Human Rights (ECtHR) decided on 17 march 2016 (Application no.16313/10) that the repeated publication of pictures of a famous footballer’s children by the same tabloids over a lengthy period of time does not necessarily violate article 8 of the European Convention of Human Rights (ECHR).

ECtHR 16313/10 Kahn vs. Germany - Right to privacy not necessarily violated by repeated publication of private pictures

The applicants, born in 1998 and 2003 are the children of a very famous German football player. Between 2004 and 2009, two tabloids owned by the same publisher had repeatedly published several articles about the applicants’ family illustrated with photographs showing private situations like spending time at a pool or on a boat tour.

The first publications, showing pictures of a family holiday with the applicants’ parents, were published in July 2004. After each publication, the publisher signed a cease and desist declaration stating that he will not publish anymore pictures of the applicants. The editor, however, refused to sign such a declaration. In the following, the applicants applied at the Regional Court in Hamburg for a general prohibition on publishing photographs of them. The Regional Court of Hamburg passed two verdicts in January 2005, forbidding the editor to publish or diffuse any photographs depicting the applicants under penalty of a fine up to 250 000 €.

Again in July 2007, the same tabloid published photographs of the applicants depicting private situations. The applicants applied for a noticeable fine. As a consequence, the publisher was charged for two violations, with a fine of 5000 € each. A few months later, the tabloids anew published pictures of the applicants and were charged a higher fine. The applicants, however, had in all these procedures requested a lot higher fines than the publisher was eventually charged with.

In December 2007, the applicants filed another law suit against the publisher for the violation of their personality rights. The legal dispute passed through all German courts including the German Federal Constitutional Court Bundesverfassungsgericht in 2009. All Courts had declared the protection of the applicants’ rights provided by German Courts as by fining the publisher for each further publication as sufficient. The applicants, however, turned to the ECtHR, claiming that they were not sufficiently protected from interferences into their right to privacy according to art. 8 European Convention Human Rights (ECHR).

The ECtHR noted that the applicant’s did not complain about an action of the German state, but rather about the fact that the protection offered by the German state was not efficient and strong enough to stop the repeated publications of their private pictures by the editor. The Court reiterated that the main goal of art 8 of the Convention is the protection of the individual against arbitrary interferences of their privacy. It is, however, not its purpose to avoid all actionable nuisances. Instead, the choice of measure is at the discretion of the particular States.

The Court noted that there are several different ways to protect the individual’s privacy, financial compensation for immaterial damages only being one of them. If the national authorities had been notified about the necessity to balance serval rights guaranteed by the Convention and they had balanced them, the Court needs severe reasons for substituting his opinion with theirs.

In general, the Court merely needs to verify if the decisions made by national authorities are compatible with the dispositions of the Convention. The ECtHR noted that the infringements of the applicants‘rights to privacy had been addressed by German Courts every time, and that the fines had increased in the amount after repeated violations of the declared prohibition.

The Court also noted that the main claim of the applicants was that the fines were (still) not high enough. Considering that the reporting had mainly been about the applicant’s parents and their marriage breakdown and the fact that in later publications, the faces of the applicants had been pixelated, the ECtHR found that the German authorities offered altogether a sufficient protection to the applicants’ rights. Therefore, the Court unanimously declared that Art. 8 f ECHR had not been violated in this particular case.

Sofie Luise Burger is a research associate at the Institute of European Media Law (EMR) in Saarbrucken/ Brussels.


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The full decision of the ECtHR (Application no.16313/10) can be found in French here.



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