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 PRIVATE LIFE AND THE MARGIN OF APPRECIATION,
INTRODUCTORY NOTE TO THE EUROPEAN COURT OF HUMAN RIGHTS:
ALEX SPRINGER AG V. GERMANY AND VON HANNOVER V. GERMANY (NO. 2)
BY PROFESSOR DR. GUIDO WESTKAMP*
[February 7, 2012]
+Cite as 51 ILM 631 (2012)+

Introduction
Two recent cases before the European Court of Human Rights ("ECtHR")-both originating in Germany-have
further elucidated the balancing test required in cases where personality rights and freedom of the press conflict.
In Von Hannover v. Germany (No. 2),1 the ECtHR determined the scope of judicial freedom in national courts in
balancing the protection for private life under Article 8 and the freedom of the press under Article 10 of the
European Convention on Human Rights ("ECHR" or "Convention' ).2 In short, the ECtHR endorsed the German
doctrine of "a person of contemporary history" and concluded that human rights law under the Convention would
not bar a national court from exercising its own balancing test provided that certain criteria are observed.
In Alex Springer AG v. Germany, the Court asserted that Article 10 of the ECHR had been breached by the
application of German tort law (Article 823 of the German Civil Code) because German courts had underestimated
the impact of Article 10. The Court drew a distinction-particularly between an obligation by the media to keep
secret the identity of an (alleged) offender, who is a well-known TV actor-where details pertaining to a public
prosecution were already in the public domain, and cases where information about the misconduct of a celebrity
was acquired by unlawful means or in bad faith.
Facts of the Case and National Legal Background
Von Hannover (No. 2): Privacy in Public Places
The Von Hannover (No. 2) case concerns an application by members of the Monaco royal family challenging a
decision by the German Federal Constitutional Court.3 That decision concerned the issue whether certain images
and a 2002 news reports published by the German media violated the applicants' personality rights under German
constitutional and tort law. The case before the Constitutional Court was a constitutional complaint against a final
decision by the German Federal Court of Justice, wherein the Court of Justice decided that images taken of the
princess violated her right to privacy; however, the Court of Justice also held that a series of images showing a
member of the reigning house of Monaco, accompanied by a report detailing his ill health, did not violate his
privacy rights. The complaint concerned particularly the question whether, if at all, German courts may still apply
provisions of Article 23 of the Artistic Copyright Act that allows the depiction of a person of contemporary history
in the media without consent. The applicants therefore sought a declaration that the application of such a principle
was not in compliance with Article 8 of the Convention and that consequently the right to privacy had to be tested
irrespective of whether a person whose image had been taken is a person of contemporary history.
In this regard, the application further sought to clarify the position following the decision in Von Hannover (No.
1). Here, the ECtHR had taken the view-contested by many commentators in Germany and elsewhere-that any
person, including celebrities, had a right to be left alone, that is, to demand legal protection where a reasonable
expectation of privacy could be established. In Von Hannover(No. 1), the ECtHR effectively reversed the traditional
test under the applicable image rights provisions of German law to the extent that celebrities could generally rely
on privacy unless they acted in an official function. This had grave effects on the media that heavily relies on
images of celebrities, including members of the royalty and the aristocracy.
The Graduated Test Under Previous German Law
Traditionally, under German law, in cases dealing with violations of personality and privacy rights, courts employed
a graduated test, under which the margin of appreciation afforded to either the celebrity or the media depended
on whether the intrusion fell within a particular sphere, thus dividing the conflict between the right to privacy and
press freedom.Thus, German law would normally not permit the publication of personal details where the intimate

Chair in Intellectual Property and Comparative Law, Centre for Commercial Law Studies, Queen Mary, University of
London. The author can be reached at g.westkamp@qmul.ac.uk.
 INTERNATIONAL LEGAL MATERIALS [VOL. S1:

sphere was affected, and in such cases, no balancing with conflicting rights, including rights enjoyed by the media,
was permissible. In contrast, a person that was depicted in a public place would not have redress against the press;
where aspects of a personality had been made publicly available concerning the public sphere, the balancing test
would generally favor the media, irrespective of whether the person in question was a celebrity or not. This
usually meant that the press could publish images showing celebrities in public places without first conducting a
balancing test.
Cases in the gray area require a more robust balancing test. Thus, a person in a public place would normally not
worry about the publication of his or her personal details without consent unless a public interest in the publication
could be established. The depiction of celebrities in public places was also within this category; however, and in
contrast to many other European jurisdictions, German law expressly required courts to observe the concept of a
person of contemporary history. Under this concept, which covers all celebrities in the public eye, a fundamental
preference is afforded to the media and, consequentially, the public interest of being informed about such persons.
Effectively, the doctrine was applied without balancing the rights to privacy against the freedom of the press, and
celebrities had to endure the publication of their images at least in those cases where the images contained no
detrimental or unfavorable information.
Celebrities in Public Places: The Von Hannover (No. 1) Decision
In Von Hannover (No. 1), the ECtHR did not expressly declare the doctrine of persons of contemporary history
in violation of the Convention rights. However, the Court took the view that even when celebrities were in public
places, they would usually enjoy their right to privacy, especially in those cases where celebrities were subject to
continuous hounding by the paparazzi. The Court thus reserved a sphere of privacy that went beyond the intimate
sphere of one's home and that included a person's freedom to walk in public places without constant attention
from the media.
Following the Von Hannover (No. 1) decision, German courts adopted a more open-ended balancing test not
initially limited by the concept of "a person of contemporary history" as required by the Federal Constitutional
Court in Gorgiilii.4 In short, however, the concept still informed judicial reasoning, and, consequentially, celebrities
were treated differently-at least under the law-than "everyday" persons.
In the present case, the applicants asked the Court to have the German doctrine quashed, given that even after
Von Hannover (No. 1), German courts continued to apply the doctrine by characterizing the applicants as persons
of contemporary history "par excellence." The applicants further contended that a conflict existed between the
concepts applied by German courts and the ECtHR and that therefore the German courts (and German law) were
in breach of community rights because the applicability of the doctrine of a person of contemporary history was
not in line with Strasbourg jurisprudence.
The Decision in Von Hannover (No. 2)
The ECtHR rejected the application, pointing out that it was not in a position to adjudicate the existence and
compatibility of divergent national doctrines, such as the doctrine of a person of contemporary history. The Court
concluded that it could not substitute the national decision with its own views unless compelling reasons existed. 5
According to the Court, its role was to consider whether a particular national decision or other act of state was
in violation of a Convention right. Formally, therefore, member states are at liberty to employ principles such as
person of contemporary history. However, in order to comply with the requirements under ECHR Article 8, national
courts must conduct a balancing test between Articles 8 and 10 of the Convention and must do so by taking into
account the parameters and criteria that have been laid down by the ECtHR. The Court would therefore only find
fault where these principles were ignored.
The Court addressed the criteria in detail. It first asserted that neither the protection of privacy nor the protection
of the media would take preference and that therefore both Convention rights were on equal footing. Compliance
with the Convention thus required a balancing of the competing Convention rights.
The ECtHR first drew attention to the fact that images and reports contributed to a debate of general interest. If
this essential criterion is not met, no further balancing exercise is arguably necessary. Other aspects to be taken
into account are the status of the person in question, his or her degree of fame, the subject of the accompanying
2012] INTRODUCTORY NOTE To AXEL SPRINGER AG v. GERMANY a VON HANNOVER V. GERMANY (EUR. CT. H.R.) 633

report, the person's prior conduct in the press, the specific content, form, and consequences of the publication to
the person concerned, and the circumstances in which the photos were taken. Overall, the Court did not find any
fault in the assessment undertaken by the German courts.
The most important aspect of the decision concerns the public interest requirement. It is at this junction that the
central tenet of whether the concept of a person of contemporary history constitutes a violation of ECHR Article
8 comes to light, and how the law should generally deal with individuals who are well-known public figures. The
Court confirmed that public interest exists only where a particular reason for the publication is established that
goes beyond a mere "interested public," such as in the case of images taken to illustrate a press report concerning
the alleged ill health of the Monaco monarch.
Anonymity, Reputation, and Public Interest
The second decision concerns aspects of the protection of anonymity and reputation, rather than the more general
personality right. The claimant, a television actor well known in Germany, was featured in a front page newspaper
report that detailed his conviction for drug abuse and included pictures of his arrest at the Munich beer festival.
The newspaper had allegedly acquired the information from the prosecution and the police before the arrest
occurred. A German court ordered that further publication of the story be prohibited, relying on a contradictory
decisions by German courts on that issue. The publisher complained to the ECtHR, claiming an unlawful interference
with its rights under ECHR Article 10 (l).6
The ECtHR first noted that the cause of action on which the actor's case rested, namely the general tort clause
under Article 823 (1) of the German Civil Code, constituted an interference with the right to press freedom under
ECHR Article 8, and that Article 823 (1) of the German Civil Code pursued a legitimate aim to protect, inter
alia, the reputation and rights of others in accordance with ECHR Article 10 (2). The central issue was whether
the interference in the present case was "necessary in a democratic society."
The Court first asserted that the type of information in question fell within ECHR Article 10 (1), which not only
protects the publication of ideas and information but extends to the publication of shocking and disturbing news.
The Court then balanced the two conflicting positions, which were identified as the right to maintain one's reputation
as an element of the right to private life (including the right to personal integrity) and the freedom of the press
in its role as a watchdog. According to the Court, the parameters to be employed include the contribution to a
debate of general interest, how well the person is known and the subject of the report, the conduct of the person
concerned prior to publication, and how the information was obtained.
The ECtHR first asserted that the articles in question concerned the arrest and conviction of an actor and that
such information may be of general interest. The Court further contended that this degree will vary depending on
further aspects, such the person's notoriety, the circumstances of the case, and the general development of the
proceedings. Furthermore, whether public interest impacts the balancing test depends on how well the person is
known; the Court referred to this aspect broadly given that it was the role of the actor that had led the two German
courts to issue divergent decisions. The ECtHR also found that the actor was a sufficiently well-known individual
and therefore could be considered a public figure; this conclusion reinforced the claim under ECHR Article 10
(1), and the fact that he could be considered a role model further lent weight to the permissibility of the publication.
The ECtHR further endorsed the view of the domestic courts that the subject of the article, which related to cocaine
abuse, did not deal with a petty offense. The Court also noted that the actor had "actively sought the limelight,"
thus reducing his legitimate expectation of privacy and respect for his personal integrity.
The Court then assessed the impact of how the information in question had been obtained. It observed that, in
general, obtaining information in bad faith would generally speak in favor of the protection of the right to
privacy. In this case, the German government disputed the allegation that the information about the arrest and the
commencement of criminal proceedings was provided by public authorities. However, the ECtHR pointed out that
the arrest was made in public and that information was obtained from a member of the prosecution service.
Therefore, the publisher could rely on these facts, and the truth of the information was undisputed. The Court
pointed out that even where information had been obtained from public prosecution bodies, the press still had an
obligation to conduct a balancing test. The Court concluded that this requirement was fulfilled. It was further
relevant that the information had, at the time of publication, been in the public domain as it had been the subject
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

of several television broadcasts. In conclusion, the ECtHR considered that the interference with Article 10 (1) was
not sufficiently justified given that the German courts had applied the margin of appreciation between the two
conflicting human rights incorrectly.
Summary
At the heart of both decisions lies the insight that in cases where personality rights clash with those of the press,
true justice is of a procedural nature and that as long as the proportionality test applies the parameters set by the
ECtHR, the contracting states maintain their freedom to employ any specific doctrine to the protection of personality
rights. However, at the same time, the ECtHR will certainly maintain its authority to assess in detail whether
national judges have placed sufficient weight on the facts when applying the test.
In general, the relationship between divergent notions of media freedom and privacy rights as recognized in
contracting states will remain a source of debate. The central tenet is the public interest. Still, no legitimate public
interest exists in cases where celebrity images are published without proper reasons beyond satisfying public
curiosity. The Court clearly maintains that constant shadowing and harassment by the press should be prevented
in this regard. As Springer shows, however, there is a certain weakening of the (arguably) rigid principles established
in Von Hannover (No.1). Obviously, as long as such legitimate public interest can be established, it will become
extremely difficult for celebrities to prevent the press from interfering with their privacy. The approach taken in
Springer indeed appears to reflect the German jurisprudential thinking as it existed before Von Hannover (No. 1),
that is, the fact that a person had actively sought the limelight, resulting in an assumption that the individual had
waived his or her right to complete anonymity.
Overall, whilst the Court seems adamant in preventing paparazzi from harassing celebrities, it has extended the
notions of press freedom, thus permitting national courts to move away from an overly restrictive reading of
Article 8. In particular, it appears that the German concept of a person of contemporary history as a decisive factor
will become increasingly redundant in those cases. It may, conversely, be employed as a parameter in cases where
the public interest under Article 10(1) is present. The future will certainly see an increase in cases challenging
the media's notion of what amounts to legitimate public interest.

ENDNOTES
1 Von Hannover v. Germany (No. 2) [GC], App. Nos. 40660/
08 & 60641/08 (Eur. Ct. H.R. Feb. 7, 2012); Axel Springer
AG v. Germany [GC], App. No. 39954/08 (Eur. Ct. H.R. Feb.
7, 2012).
2 Convention for the Protection of Human Rights and Funda-
mental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 (entered
into force Sept. 3, 1953).
3 See Bundesverfassungsgericht [BVerGE] [Federal Constitu-
tional Court] Feb. 26, 2008, 1 BVerfGE 1602/07, Absatz-Nr.
(1-109), available at http://www.bverfg.de/entscheidungen/
rs20080226_lbvrl 60207.html.
4 See Bundesverfassungsgericht [BVerGE] [Federal Constitu-
tional Court Oct. 14, 2004, 2 BvRGE 1481/04, Absatz-Nr.
(1-73), Neue Juristische Wochenschrift 3407, 2004 (Ger.),
available at http://www.bverfg.de/entscheidungenrs2004
1014_2bvr148104.html.
5 See MGN Ltd. v. United Kingdom, App. No. 39401/04, 9N
150, 155 (Eur. Ct. H.R. Jan. 18, 2012); Palomo Sanchez v.
Spain, App. Nos. 28955/06, 28957/04, 28959/04, 28964/06,
57 (Eur. Ct. H.R. Sept. 12, 2011).
6 See Chauvy & Others v. France, 2004-VI Eur. Ct. H.R. 70;
see also Pfeifer v. Austria, App. No. 12556/03, 35 (Eur. Ct.
H.R. Nov. 15, 2007).
 AXEL SPRINGER AG V. GERMANY*
[February 7, 2012]
+Cite as 51 ILM 635 (2012)+

EUROPEAN COURT OF HUMAN RIGHTS

COUR EUROP9MN DES DROITS DE L'HOMME

GRAND CHAMBER

CASE OF AXEL SPRINGER AG v. GERMANY

(Application no. 39954/08)

JUDGMENT

STRASBOURG
7 February 2012

This judgment is final but may be subject to editorial revision.

In the case of Axel Springer AG v. Germany,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Nicolas Bratza, President,
Jean-Paul Costa,
Frangoise Tulkens,
Josep Casadevall,
Lech Garlicki,
Peer Lorenzen,
Karel Jungwiert,
Renate Jaeger,
David Th6r Bj6rgvinsson,
Jin Sikuta,
Mark Villiger,
Luis L6pez Guerra,
Mirjana Lazarova Trajkovska,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Michael O'Boyle, Deputy Registrar,

* This text was reproduced and reformatted from the text available at the European Court of Human Rights Web site
(visited June 5, 2012) http://hudoc.echr.coe.int/sites/englpages/search.aspx?i=001-109034.
 INTERNATIONAL LEGAL MATERIALS [VOL. S1"

Having deliberated in private on 13 October 2010 and on 7 December 2011,

Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 39954/08) against the Federal Republic of Germany lodged with
the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention") by a public limited company incorporated under German law, Axel Springer AG ("the
applicant company"), on 18 August 2008.
2. Relying on Article 10, the applicant company complained about the injunction imposed on it against reporting
on the arrest and conviction of a well-known actor for a drug-related offence.
3. The application was initially allocated to the Fifth Section of the Court (Rule 52 1 of the Rules of Court -
"the Rules"). On 13 November 2008 a Chamber of that Section decided to give notice of the application to the
Government. By virtue of Article 29 3 of the Convention, as worded at the relevant time, it also decided that
the admissibility and merits of the case should be considered together. On 30 March 2010 the Chamber, composed
of the following judges: Peer Lorenzen, President,Renate Jaeger, Karel Jungwiert, Rait Maruste, Mark Villiger,
Mirjana Lazarova Trajkovska and Zdravka Kalaydjieva, and also Claudia Westerdiek, Section Registrar, after
deciding to join the present application to the applications Von Hannover v. Germany (nos. 40660/08 and 60641/
08) concerning the refusal by the German courts to grant an injunction against any further publication of two
photos, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relin-
quishment (Article 30 of the Convention and Rule 72).
4. The composition of the Grand Chamber was determined according to the provisions of Article 26 2 and
3 of the Convention (now Article 26 4 and 5) and Rule 24 of the Rules of Court. On 3 November 2011 Jean-
Paul Costa's term as President of the Court came to an end. Nicolas Bratza succeeded him in that capacity and
took over the presidency of the Grand Chamber in the present case (Rule 9 2). Jean-Paul Costa continued to
sit following the expiry of his term of office, in accordance with Article 23 3 of the Convention and Rule 24
4. At the final deliberations, Lech Garlicki and Nona Tsotsoria, substitute judges, replaced Rait Maruste and
Christos Rozakis, who were unable to take part in the further consideration of the case (Rule 24 3).
5. The President of the Grand Chamber decided to maintain the application of Article 29 3 of the Convention
before the Grand Chamber with a view to a joint examination of the admissibility and merits of the applications.
He also decided that the proceedings in the present case should be conducted simultaneously with those in the
Von Hannover cases cited above (Rule 42 2).
6. The applicant company and the Government each filed written observations on the admissibility and merits
of the case. The Government filed written observations on the applicant company's observations.
7. In addition, third-party comments were received from the following non-governmental organisations: Media
Lawyers Association, Media Legal Defence Initiative, International Press Institute and World Association of
Newspapers and News Publishers, which had been given leave by the President to intervene in the written procedure
(Article 36 2 of the Convention and Rule 44 2). The parties were given the opportunity to reply to those
comments (Rule 44 5).
8. A hearing took place in public in the Human Rights Building, Strasbourg, on 13 October 2010 (Rule 59 3).
There appeared before the Court:
(a) for the Government
Mrs A. WrITLING-VOGEL, Federal Ministry of Justice, Agent,
Mr C. WALTER, Professor of Public Law, Counsel,
Mrs A. VON UNGERN-STERN.ERG, Assistant,
Mr R. SOMMERLAT-M, Federal Office for Culture,
Mr A. MAATSCH, Judge of the Hamburg Regional Court, Advisers;
2012] AXEL SPRINGER AG v. GERMANY (EUR. CT. H.R.)

(b) for the applicant company

Mr U. BORGER, Lawyer, Counsel,
Mrs K. HESSE, Lawyer, Adviser.

The Court heard addresses, and answers to questions from judges, from Mr Walter and Mr B6rger.

After being invited by the Court to provide additional information concerning the holding of a press conference
by the Munich public prosecutor's office following the arrest of the actor X, the parties subsequently submitted
a certain number of documents in that connection.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9. The applicant is a public limited company whose registered office is in Hamburg. It publishes the Bild, a
daily newspaper with a large circulation. The present case concerns the publication by the newspaper of two
articles about X, a well-known television actor. Between May 1998 and November 2003 X had played the part
of Police Superintendent Y, the hero of a television series broadcast on a private television channel in the evenings,
until 2005. By October 2004, 103 episodes had been broadcast, the last 54 of which had starred X in the role of
Police Superintendent Y. The average audience rating was 18% (between 3 and 4,700,000 viewers per episode).

10. On 14 June 2003 the applicant company revealed that X had been convicted of unlawful possession of
drugs. After receiving a warning from X, it undertook, on pain of an agreed penalty, to refrain from publishing
information according to which four grams of cocaine had been found at X's home that he had had sent to him
by post from Brazil and for which he had been given a prison sentence, suspended for five months, and fined
5,000 euros (EUR).

A. X's arrest

11. At approximately 11 p.m. on 23 September 2004 X was arrested at the Munich beer festival (Oktoberfest)
for possession of cocaine. In a sworn statement (eidesstattliche Versicherung) a journalist from the applicant
company declared that she had asked the police present at the scene whether X had been arrested and, if so, on
what grounds. The police had confirmed that X had been arrested in the Kdifer tent in possession of cocaine,
without giving any further details.

12. According to that statement, the journalist had then contacted the public prosecutor, W., from the public
prosecutor's office of Munich Regional Court I, in charge of relations with the press, and had asked him for
information. W. had confirmed that X had been arrested in the Kafer tent in possession of cocaine. According to
W., plain-clothes police officers had arrested X because they had seen him making a suspicious movement with
his hand when coming out of the toilets. The officers had searched him, and, having found him to be in possession
of an envelope containing 0.23 grams of cocaine, had arrested him. According to W., the arrest had taken place
at approximately 11 p.m. on 23 September and a criminal complaint was currently being investigated.
B. The articles in issue

1. The first article

13. In its 29 September 2004 edition, the applicant company's daily newspaper, the Bild, published the following
headline in large type on its front page:

"Cocaine! Superintendent Y caught at the Munich beer festival."

The article, which was printed in small type, read as follows:

"He came out of the gents tapping his nose suspiciously and was arrested! At the beer festival
the police caught X (... years old, Superintendent Y on television), in possession of a small envelope
of cocaine. See page 12 for the details."
 INTERNATIONAL LEGAL MATERIALS [VOL. S1:

The following headline appeared on page twelve of the daily:

"TV star X caught in possession of cocaine. A bretzel (Brezn), a beer mug [containing a litre
of beer - Ma3] and a line of coke (Koks)."
The article, printed in small type, read as follows:
"Thursday night, 11 p.m. At the beer festival there was drinking, partying, swaying arm in
arm. And sniffing.... In the celebrities' tent the TV star X (... years old, whose real name is ...)
came out of the gents tapping his nose and attracting the attention of police officers. They searched
the star actor from the TV series Y (of which, by June, there had been more than 60 episodes in
five years). COCAINE! X had a packet on him containing 0.23 grams of coke, and was arrested.
Public prosecutor W. from Munich told the Bild: "He was making suspicious movements with
his hand, tapping his nose with his fingers. This of course attracted the attention of our officers.
An investigation is under way. Only a small quantity of cocaine is involved though. W. : "Right
in the middle of the festival grounds (Wiesn) - it might have been snuff tobacco, but our men
have a flair for this sort of thing...". X had already had a run-in with the law for possession of
drugs. In July 2000 the Superintendent from the TV series had been given a five-month suspended
prison sentence and two years' probation and fined EUR 5,000. He was accused of illegally
importing drugs. On a trip to Brazil X had arranged for four grams of cocaine to be sent to his
address in Munich. His probation period ended two years ago. The quantity of the drug found in
the tent ... is negligible. What can the actor expect? According to a legal expert questioned by
Bild: "Even if the probation period is over the previous conviction is recent. X may get an
unsuspended prison sentence - up to six months". Why prison? "X has apparently not been
sufficiently daunted by the suspended prison sentence". The actor has probably had to submit to
a forensic head hair examination. Each centimetre of hair will enable the expert to determine
whether and how much cocaine was taken. Yesterday X refused to comment. P.S: "In every toilet
cubicle in the tent ... there are signs saying: "The use of drugs is liable to prosecution!"
The article was accompanied by three photos of X, one on the first page and the other two on page twelve.
14. On the same day, during the morning, press agencies and other newspapers and magazines reported on X's
arrest, referring in part to the article published in the Bild. That day the prosecutor W. confirmed the facts reported
in the Bild to other written media and television channels, two of which ("RTL" and "pro7") broadcast the same
reports that evening. During one of the broadcasts the prosecutor W. made the following statement:
"The police officers saw X making a suspicious movement with his hand while coming out of
the men's toilets and concluded that he had taken something. They searched him and found an
envelope containing 0.213 grams of cocaine. He had already been convicted of importing drugs
and given a suspended prison sentence. He is not a first offender (Ersttdter). He should have
known that he should not touch drugs. He can now expect a further prison sentence, even if the
quantity found on him is insignificant."
2. The second article
15. In its 7 July 2005 edition the Bild printed the following headline on its inside pages: "TV series Superintendent
X confesses in court to having taken cocaine. He is fined 18,000 euros!"
The article read as follows:
"Munich - On TV he plays a superintendent who puts criminals behind bars. Yesterday, it was
the turn of the actor X (... years old, ...) to be hauled up in front of the court and confess! X, who
had to explain himself to the Munich District Court [Amtsgericht] on charges of "unlawful
possession of drugs", has confessed to taking drugs! X's counsel ... stated: "We fully acknowledge
the offence with which we have been charged in the indictment". X confessed to the court: "I
have occasionally smoked cannabis and taken cocaine from time to time. This has not made me
happy. It had not turned into a habit but is just something that I have done from time to time".
20121 AXEL SPRINGER AG v. GERMANY (EUR. CT. H.R.)

Question from the court ... : "Are you currently taking drugs?" Reply from X: "No, I smoke
cigarettes." The sentence: a fine of EUR 18,000. The court: "The accused's full confession has
counted in his favour." On TV X continues investigating on the side of law and order. In Vienna
which should be starting on the second
he is in front of the cameras for the television series ...
channel in the autumn."
The article was accompanied by a photo of X.
C. The proceedings in the German courts
16. Immediately after the articles appeared, X. instituted proceedings against the applicant company in the
Hamburg Regional Court. The applicant company attached to its initial reply the statement by its journalist (see
paragraphs 11 and 12 above) and numerous press articles about X, including a number of interviews given by
him, to Bunte magazine among others, together with photos of him.
1. The first set of proceedings
(a) The injunction proceedings
17. On 30 September 2004 the Hamburg Regional Court imposed an injunction on publication of the article,
following a request lodged by X on 29 September 2004. In a judgment of 12 November 2004 it confirmed the
injunction. That judgment was upheld by the Court of Appeal on 28 June 2005.
On 6 October 2004 the Regional Court also imposed an injunction on publication of the photos illustrating
the article. It confirmed that decision in a judgment of 12 November 2004. The applicant company did not challenge
that judgment, which became final.
(b) The main proceedings
(i) Judgment of the Regional Court
18. On 11 November 2005 the Hamburg Regional Court prohibited any further publication of almost the entire
first article, on pain of an agreed penalty, under Articles 823 1 and 1004 1 (by analogy) of the Civil
Code (see paragraph 47 below), read in the light of the right to protection of personality rights (Allgemeines
Persrnlichkeitsrecht).It ordered the applicant company to pay EUR 5,000 as a penalty under the agreement and
to reimburse the procedural expenses (EUR 811.88, plus statutory interest accrued from 4 November 2004).
19. According to the Regional Court, the article in question, which mentioned X's name and was accompanied
by photos of him, amounted to a serious interference with his right to the protection of his personality rights; the
disclosure of his criminal conduct had, so to speak, resulted in his being pilloried and discredited in the eyes of
the public. The court found that, despite those negative effects, reporting of that kind would nonetheless have
been lawful in the event of serious crimes that were part of contemporary society and on which the press was
entitled to report. Any interference with a criminal's private sphere was limited, however, by the proportionality
principle, which involved a balancing exercise between the competing interests. The court held that in the present
case the right to protection of X's personality rights prevailed over the public's interest in being informed, even
if the truth of the facts related by the daily had not been disputed. Neither the nature of the crime committed, nor
the person of X, nor any other circumstances justified publication of the article at issue.
20. The court observed that whilst a drugs-related offence was not a petty crime, particularly as in the present
case it had been cocaine, which was a hard drug, X had been in possession of only a small quantity of that drug
and had not been accused of drug trafficking. The type of offence involved was of medium, or even minor,
seriousness, was a very common one and there was no particular public interest in knowing about it. The court
added that, unlike serious crimes (such as spectacular robberies, or murders), there were no particular circumstances
distinguishing the offence in question from ordinary crimes, even if there was an assumption that drug abuse was
more widespread amongst key figures from the arts world and the media than in other circles. Furthermore, the
way in which the report had been made by the applicant company confirmed that the offence itself was not an
important one. The report had focussed more on X's person than on the offence, which would probably never
have been reported in the press if it had been committed by a person unknown to the public. Similarly, the court
640 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

pointed out, whilst X's previous conviction for a similar offence was such as to increase the public's interest, it
was his only previous conviction and, moreover, dated back several years.
21. The court also found that publication of the articles in question was not justified by the person of X. The
public did admittedly show an interest in Police Superintendent Y, a character in a relatively popular television
series, but not in the actual person of the actor playing the part. There was nothing to suggest that X attracted the
attention of the public on account of his performance as an actor or other activities bringing him within a circle
of persons about whom the public had a need for regular information. The interest in X did not, in any event, go
beyond the interest habitually manifested by the public in leading actors in German television series.
22. The court observed that the applicant company had published many articles about X over a period of six
years and particularly over the last three years. The vast majority of these publications had, however, merely
mentioned X's name - often without a photo - among the names of celebrities invited to various events. Whilst
it was undisputed that X had taken part in over 200 national and international cinematographic and televised
productions, that did not convey much of an idea of his public importance. Indeed, actors could have starred in
hundreds of television series and still remain little known to the public. There was no evidence that X had made
a name for himself on account of any particular performance or that he had occupied a prominent position in
society which had brought him into the public eye.
23. X had, to an extent, sought to attract the public's attention by giving interviews to certain magazines
between 2000 and 2003. He therefore had to be more tolerant towards reports published about him than other
well-known figures who avoided the limelight. According to the court, X had not, however, courted the public to
a degree that he could be considered to have implicitly waived his right to the protection of his personality rights.
24. The Regional Court conceded that the fact that the actor had broken the law whereas on television he
played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if
the actor had played any other kind of role. However, that contrast between the television role and the personal
lifestyle of the actor did not mean that the public confused the latter with the fictional character. The actor merely
donned the persona of a superintendent, just as he could don that of any other character, without thereby adopting
the conduct of the character in question in his daily life. The fact that an actor did not adopt the lifestyle of the
character he played could not in any way be regarded as an extraordinary event worthy of being reported. In the
court's view, viewers could distinguish between the actor and his role, even where the actor was well known
essentially for playing one particular character.
25. The Regional Court found, further, that X had not sought to portray himself as an emblem of moral virtue;
neither had he adopted a stand on matters relating to drug abuse. The interviews reported by the applicant company
contained no comment by X on the subject. In issue no. 48/2003 of the magazine Bunte, X had stated, in passing,
that he did not have any alcohol in the house and that he had become a big tea connaisseur. In the court's view,
the fact that X had briefly remarked on his previous conviction in two interviews with magazines in 2000 and
2001 did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert
in the field. That subject had been only marginally covered in the interview, which had mainly concerned the
actor's professional prospects and his difficulties in his relationships.
26. Observing that when balancing the competing interests, the decisive criteria were how well known X was
and the seriousness of the offence with which he was charged, the Regional Court found that the case concerned
an actor who was not exceptionally well known and was accused of an offence which, while not insignificant,
was not particularly spectacular and could be regarded as fairly common in the entertainment world. The public
did not therefore have a great interest in being informed of an event that was actually fairly anodyne, whereas
the information published amounted to a serious (gravierend)interference with X's right to the protection of his
personality rights.
27. The Regional Court found, lastly, that the applicant company was not justified in arguing that the publication
of the article was lawful because it pursued legitimate interests. Admittedly, the press officer from the public
prosecutor's office at the Munich Regional Court I had informed a large number of media reporters of the offence
with which X had been charged and had disclosed his identity to them; nor was there any doubt that the public
prosecutor's office could be regarded as a "privileged source" (privilegierteQuelle) of information that did not,
20121 AXEL SPRINGER AG v. GERMANY (EUR. CT. H.R.)

as a general rule, require verification as to the truth of its content. Moreover, three press agencies had disclosed
similar details. However, even assuming that it had received all the information before publishing the article in
question, the applicant company could only conclude that the published information was true and was not thereby
absolved from the requirement to check whether its publication was justified in terms of X's right to protection
of his personality rights. In the court's opinion, the question of the veracity of information issued by a public
authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by
the press.
28. The court found that it could be presumed that institutions providing a public service, and in particular the
public prosecutor's office and the police, made every effort, in accordance with the principle of neutrality, not to
issue information unless the public interest in doing so had been carefully weighed against that of the persons
concerned. However, such institutions were not necessarily in a better position than a publisher to weigh the
conflicting interests at stake regarding the dissemination of the information through the media.
29. In the instant case the applicant company was actually better placed than a member of the Munich public
prosecutor's office to judge the degree to which X was known and the question regarding whether the public had
an interest in learning of his arrest. On that point the court considered that account also had to be taken of the
context in which the information was published: the public services were not in a position to anticipate every
possible form of dissemination of factual information in any foreseeable context or to foresee whether a report
mentioning the person's name was justified or not. Accordingly, publishers could not generally consider that the
disclosure of a person's identity by a privileged source would make any kind of report on the person concerned
legal, without having first balanced the interests at stake.
30. The Regional Court pointed out that there were situations in which there may be doubts regarding the
assessment by the public authorities. Accordingly, in the case of X, the question arose as to whether it was
appropriate for the public prosecutor's office to have expressed an opinion on the sentence that X could expect
to receive when the criminal investigation had only just started. The court concluded that the applicant company
could not argue that it had relied on the disclosure of X's name by the public prosecutor's office.
(ii) Judgment of the Court of Appeal
31. On 21 March 2006 the Court of Appeal dismissed an appeal by the applicant company, but reduced the
amount of the agreed penalty to EUR 1,000. It upheld the conclusions of the Regional Court, pointing out that
the disclosure of a suspect's name when reporting on an offence constituted, as a general rule, a serious infringement
of the right to the protection of personality rights, even if it was a drug offence of medium or minor seriousness.
In X's case the fact of informing the public that he had taken cocaine could adversely affect his future prospects
of securing acting roles and, in particular, of obtaining a role in an advertisement or in television series aimed at
a young audience.
32. The Court of Appeal reiterated the relevant criteria when balancing the rights of the press against the right
to protection of personality rights, as established by the Federal Court of Justice (see paragraph 48 below). It
confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an
everyday offence and would not have aroused any interest if the perpetrator had been little known. In the court's
opinion, the possession and consumption of low quantities of drugs did not have adverse effects on third parties
or on the general public. As X had not taken cocaine in the tent in front of everyone, his conduct did not imperil
a young audience that might be likely to imitate him on account of his being a well-known television star.
33. The Court of Appeal acknowledged that the public had a particular interest in being informed and entertained
because X was a well-known figure and had played the part of a police superintendent over a long period of time
(lingererZeitraum). However, even if X played that role, this did not mean that he had himself necessarily become
an idol or role model as a law-enforcement officer, which could have increased the public's interest in the question
whether in his private life he actually behaved like his character. It was clear that the actor X could not be identified
with the fictitious character of Superintendent Y that he played. The fact that X had his fan clubs and had made
public appearances as the actor who played the part of Superintendent Y did not alter that finding. It could well
be that X's appearance, his manner of presenting himself, and the relaxed attitude portrayed in his films appealed
to others, particularly a young audience. That did not mean, though, that others saw in him a moral role model
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

whose image should be corrected by the newspaper report in question.

34. The publications submitted by the applicant company were indeed evidence that X was hugely popular,
but did not support the contention that he had used confessions about his private life to attract the public's attention.
Nor was the newspaper report justifiable on the ground that X had been arrested in public, in a tent, because the
drug had actually been consumed in the men's toilets, that is, in a place that fell within the protected private
sphere, and out of public view. Lastly, even if it were to be established that X's arrest was a matter of substantial
public interest, the same could not be said of the description and characterisation of the offence committed out
of public view.
35. Lastly, while upholding the conclusions of the Regional Court regarding the role of the Munich public
prosecutor's office, the Court of Appeal stated that the applicant company's liability did not extend beyond minor
negligence given that the information disclosed by the public prosecutor's office had led it to believe that the
report was lawful. The illegal disclosure by the public prosecutor's office did not, however, make publication by
the applicant company legal. The Court of Appeal accordingly reduced the agreed penalty to EUR 1,000. It refused
leave to appeal on points of law because its judgment did not conflict with the case-law of the Federal Court of
Justice.
(iii) The decisions of the Federal Court of Justice
36. On 7 November 2006 the Federal Court of Justice refused the applicant company leave to appeal on points
of law on the ground that the case did not raise a question of fundamental importance and was not necessary for
the development of the law or to guarantee uniformity of the case-law.
37. On 11 December 2006 the Federal Court of Justice dismissed an appeal lodged by the applicant company
claiming that it had not had a sufficient opportunity to make submissions (Anhirungsriige).It stated that when
balancing the public's interest in being informed about public criminal proceedings against an interference with
the defendant's private sphere, the Court of Appeal had taken into account the circumstances of the case and had
reached its decision in accordance with the criteria established in its case-law. There was no evidence that the
relevant criteria for the balancing exercise had been disregarded. The Federal Court of Justice stated that the fact
that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points
of law and did not amount to a violation of the right to be heard.
2. The second set of proceedings

(a) The injunction proceedings

38. On 15 August 2005 the Hamburg Regional Court granted an application by X for an injunction against
any further publication of the second article.
(b) The main proceedings
(i) Judgment of the Regional Court
39. By a judgment of 5 May 2006, the Regional Court granted X's application in the main proceedings, ordered
the applicant company to refrain from any further publication of the second article on pain of penalty and ordered
it to pay EUR 449.96 in costs, plus statutory interest accrued from 22 September 2005. It based its decision on
essentially the same grounds as those set out in its judgment of 11 November 2005 (see paragraphs 18-30 above).
It stated that the case in question had to be distinguished from the one that had been the subject of the judgment
of the Federal Court of Justice of 15 November 2005 (see paragraph 48 below) in that the person concerned in
that case, Prince Ernst August von Hannover, was much more widely known than X, so the press had been entitled
to report on the substantial penalty imposed in that case.
(ii) Judgment of the Court of Appeal
40. On 12 September 2006 the Hamburg Court of Appeal dismissed an appeal by the applicant company on
essentially the same grounds as those given in its judgment of 21 March 2006 (see paragraphs 31-35 above). On
the subject of the relevant criteria for weighing the conflicting interests, it stated that, according to the judgment
2012] AXEL SPRINGER AG v. GERMANY (EUR. CT. H.R.)

of the Federal Constitutional Court of 13 June 2006 (see paragraph 49 below), the fact that a person was a
prominent figure or one known to the public was not a sufficient factor in itself to justify the existence of an
interest on the part of the public in being informed of his or her conduct. In the present case, the public's interest
in being informed and entertained, which derived from the fact that X was a well-known figure and starred as a
superintendent in a television series, was insufficient to justify the interference with his right to decide for himself
which information he was willing to disclose (informationelle Selbstbestimmung).
41. The applicant company's reliance on the high audience rating of the television series Y. did not, in the
Court of Appeal's opinion, prove that X. had served as a role model or a counter model. If a role model existed
for millions of viewers, the role model in question was the character of the superintendent. The Court of Appeal
reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful
because the offence itself had been committed out of public view, in the men's toilets. The suspicious movement
that X had made with his hand had admittedly attracted the attention of the police at the scene, but it had not
been established that other persons present in the tent had noticed that X had taken cocaine.
42. The Court of Appeal added that whilst the fact that the "quality press" had reported the case might indicate
that there was a not insignificant (nicht geringes) interest in reporting it, that was not a basis on which to conclude
that the interference with X's right to the protection of his personality rights had been lawful.
43. The Court of Appeal refused the applicant company leave to appeal on points of law on the ground that
its judgment did not conflict with the case-law of the Federal Court of Justice, in particular the latter's judgment
of 15 November 2005 (see paragraph 48 below).
(iii) Decisions of the Federal Court of Justice
44. On 17 April 2007 the Federal Court of Justice refused the applicant company leave to appeal on points of
law on the ground that the case did not raise a question of fundamental importance and was not necessary for the
development of the law or to guarantee uniformity of the case-law. On 12 June 2007 it dismissed an appeal lodged
by the applicant company claiming that it had not had a sufficient opportunity to make submissions.
3. Decision of the Federal Constitutional Court
45. On 5 March 2008 a three-judge panel of the Federal Constitutional Court declined to entertain constitutional
appeals lodged by the applicant company against the court decisions delivered in the first and second sets of
proceedings. It stated that it was not giving reasons for its decision.
4. Other judicial decisions concerning the applicant company
46. On 12 September 2006 and 29 January 2008 the Hamburg Regional Court ordered the applicant company
to pay X two penalty payments of EUR 5,000, each one for having breached the order of 15 August 2005 (see
paragraph 38 above). The court criticised the applicant company for, inter alia, publishing in the 7 July 2006
edition of the daily newspaper Die Welt and on the newspaper's internet page (welt.de) on 22 March 2007 the
following statement by one of its editors:
"Accordingly, we had no right whatsoever to report on the trial of the popular actor X for possession
of cocaine, even though he was a very well-known recidivist and the offence was committed at
the beer festival in Munich."
II. RELEVANT DOMESTIC LAW AND PRACTICE AND EUROPEAN TEXTS
A. Domestic law and practice
1. The Civil Code
47. Article 823 1 of the Civil Code (Biirgerliches Gestezbuch) provides that anyone who, intentionally or
negligently, unlawfully infringes another's right to life, physical integrity, health, freedom, property or other similar
right, shall be liable to make compensation for the resulting damage.
In accordance with Article 1004 1, where another's property is damaged otherwise than by removal or illegal
retention the owner may require the perpetrator to cease the interference. If there are reasonable fears that further
 INTERNATIONAL LEGAL MATERIALS [VOL S1:

damage will be inflicted, the owner may seek an injunction.

2. Relevant case-law
48. In its judgment of 15 November 2005 (no. Vi ZR 286/04) the Federal Court of Justice reiterated its
established case-law according to which the decisive criteria for evaluating the lawfulness of a news report
mentioning the name of the person concerned were the nature of the offence and the person of the suspect. The
facts of the case were a fine and a prohibition on driving imposed by the French courts for speeding on a motorway
(211 instead of 130 km per hour) on a person known to the public. The Federal Court of Justice found, firstly,
that the speed limit had been exceeded to such an extent that it could be regarded as an expression of extreme
contempt for the highway regulations, and, secondly, that the offence had put other motorists at considerable risk.
Moreover, both the manner in which the person concerned had behaved in public in the past and his origins and
the fact that he was the husband of a very well-known individual meant that the interest of the press in publishing
a news report prevailed over the right to protection of the personality rights of the person concerned. The Federal
Court of Justice pointed out that the Court's judgment in the case of Von Hannover v. Germany of 24 June 2004
(no. 59320/00, ECHR 2004-VI) allowed of no other conclusion. The articles (and photos) in that case had concerned
only scenes from Caroline von Hannover's daily life, and had aimed merely to satisfy the curiosity of a particular
readership regarding her private life.
49. In a decision of 13 June 2006 (no. 1 BvR 565/06), a three-judge panel of the Federal Constitutional Court
decided not to entertain a constitutional appeal lodged against the judgment of the Federal Court of Justice and
upheld the latter's findings.
B. Texts adopted by the Council of Europe
1. Recommendation Rec(2003)13 of the Committee of Ministers
50. The relevant passages of Recommendation (Rec(2003)13 of the Committee of Ministers to member states
on the provision of information through the media in relation to criminal proceedings, adopted on 10 July 2003
at the 848th meeting of the Ministers' Deputies, read as follows:-

Recalling that the media have the right to inform the public due to the right of the public to
receive information, including information on matters of public concern, under Article 10 of the
Convention, and that they have a professional duty to do so;
Recalling that the rights to presumption of innocence, to a fair trial and to respect for private
and family life under Articles 6 and 8 of the Convention constitute fundamental requirements
which must be respected in any democratic society;
Stressing the importance of media reporting in informing the public on criminal proceedings,
making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the
functioning of the criminal justice system;
Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention
and the necessity to balance these rights in view of the facts of every individual case, with due
regard to the supervisory role of the European Court of Human Rights in ensuring the observance
of the commitments under the Convention;

Recommends, while acknowledging the diversity of national legal systems concerning criminal
procedure, that the governments of member states:
1. take or reinforce, as the case may be, all measures which they consider necessary with a
view to the implementation of the principles appended to this recommendation, within the limits
of their respective constitutional provisions,
2012] AXEL SPRINGER AG v. GERMANY (EuR. CT. H.R.)

Appendix to Recommendation Rec(2003)13

Principles concerning the provision of information through the media in relation to criminal proceedings
Principle 1 - Information of the public via the media
The public must be able to receive information about the activities of judicial authorities and police services
through the media. Therefore, journalists must be able to freely report and comment on the functioning of the
criminal justice system, subject only to the limitations provided for under the following principles.
Principle 2 - Presumption of innocence
Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial.
Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated
or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or
accused.
Principle 3 - Accuracy of information
Judicial authorities and police services should provide to the media only verified information or information
which is based on reasonable assumptions. In the latter case, this should be clearly indicated to the media.
Principle 4 - Access to information
When journalists have lawfully obtained information in the context of on-going criminal proceedings from
judicial authorities or police services, those authorities and services should make available such information,
without discrimination, to all journalists who make or have made the same request.

Principle8 - Protection of privacy in the context of on-going criminal proceedings

The provision of information about suspects, accused or convicted persons or other parties to criminal proceed-
ings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular
protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses
and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to
the harmful effect which the disclosure of information enabling their identification may have on the persons
referred to in this Principle."
2. Resolution 1165 (1998) of the ParliamentaryAssembly of the Council of Europe on the right to privacy
51. The relevant passages of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, read as
follows:-

6. The Assembly is aware that personal privacy is often invaded, even in countries with specific
legislation to protect it, as people's private lives have become a highly lucrative commodity for
certain sectors of the media. The victims are essentially public figures, since details of their private
lives serve as a stimulus to sales. At the same time, public figures must recognise that the special
position they occupy in society - in many cases by choice - automatically entails increased pressure
on their privacy.
7. Public figures are persons holding public office and/or using public resources and, more
broadly speaking, all those who play a role in public life, whether in politics, the economy, the
arts, the social sphere, sport or in any other domain.
8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which
is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade
people's privacy, claiming that their readers are entitled to know everything about public figures.
 INTERNATIONAL LEGAL MATERIALS [VOL. S1:

9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed
be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to
be informed of those facts.
10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights,
both of which are guaranteed by the European Convention on Human Rights: the right to respect
for one's private life and the right to freedom of expression.
11. The Assembly reaffirms the importance of every person's right to privacy, and of the right
to freedom of expression, as fundamental to a democratic society. These rights are neither absolute
nor in any hierarchical order, since they are of equal value.
12. However, the Assembly points out that the right to privacy afforded by Article 8 of the
European Convention on Human Rights should not only protect an individual against interference
by public authorities, but also against interference by private persons or institutions, including the
mass media.
13. The Assembly believes that, since all member states have now ratified the European Conven-
tion on Human Rights, and since many systems of national legislation comprise provisions guaran-
teeing this protection, there is no need to propose that a new convention guaranteeing the right
to privacy should be adopted ... "
THE LAW
I. DISJOINDER OF THE APPLICATION
52. The Court notes that before relinquishing jurisdiction in favour of the Grand Chamber the Chamber had
joined the present application to the applications in Von Hannover v. Germany (nos. 40660/08 and 60641/08) -
see paragraph 3 above). Having regard, however, to the nature of the facts and the substantive issues raised in
those cases, the Grand Chamber considers it appropriate to disjoin applications nos. 40660/08 and 60641/08 from
the present application.
II. ALLEGED VIOLATION QF ARTICLE 10 OF THE CONVENTION
53. The applicant company complained about the injunction imposed on it against reporting on the arrest and
conviction of X. It relied on Article 10 of the Convention, the relevant parts of which read as follows:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public authority
and regardless of frontiers ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society ... for the protection of the reputation or rights of others ...
or
for maintaining the authority and impartiality of the judiciary."
A. Admissibility
54. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 3
a) of the Convention. It notes further that no other ground for declaring it inadmissible has been established and
that it must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The Government
55. The Government acknowledged that the impugned court decisions amounted to an interference with the
applicant company's right to freedom of expression. However, the interference was prescribed by law and pursued
20121 AXEL SPRINGER AG v. GERMANY (EUR. CT. H.R.)

an aim recognised as legitimate by the Court, namely, the protection of the private sphere (News Verlags GmbH &
Co.KG v. Austria, no. 31457/96, 44, ECHR 2000-I). The question at issue between the parties in the present
case was whether the interference had been proportionate, and in particular whether the balancing exercise undertaken
by the national courts of the applicant company's right to freedom of expression against X's right to respect for
his private life was in conformity with the criteria established by the Court's case-law. In that connection regard
had to be had to the role of the person concerned, the purpose of the publication and the severity of the sanction
imposed on the press.

56. The Government referred to the national courts' finding that, unlike Superintendent Y, X was not well
known to the public and accordingly could not be regarded as a public figure. In its judgment concerning the
second article, the Regional Court had, moreover, differentiated X from Prince Ernst August von Hannover (see
paragraph 39 above). The press interviews given by X had not been sufficient in themselves to increase the public's
interest in his person. In the Government's submission, the task of assessing how well a person was known to
the public should fall to the domestic courts. That was particularly true in borderline cases, which required an
assessment of the facts and of social situations that the Court could not undertake in respect of each and every
potential public figure in 47 States.

57. With regard to the subject matter of media reports, the Government acknowledged that where the press
reported on the commission of an offence it was generally playing its role as "public watchdog", in particular
where criminal proceedings were concerned. There was a greater public interest in this case than when the press
merely reported details of the private life of an individual. In the present case, however, the public had no interest
in being informed about the offence committed by X, whom they could not have dissociated from the person of
the defendant. The present case had not called into question the workings of the justice system, like the case of
Obukhova v. Russia (no. 34736/03, 8 January 2009), but had concerned only a minor drugs-related offence
committed by a relatively well-known actor.

58. The task of assessing the seriousness of the offence should fall within the margin of appreciation of the
national authorities. In the instant case the courts considered that the offence was of medium, or even minor,
seriousness. The Government pointed out that the amount of the fine was relatively high on account of X's income.
The criminal courts had fixed the amount at 90 day-fines, so the offence did not appear in X's certificate of good
conduct (destined for employers) or in his criminal record.

59. The Government disputed the applicant company's allegation that the Munich prosecutor had held a press
conference and published a press release about X's arrest prior to publication of the first article (see paragraph
69 below).

60. As regards the nature of the penalty imposed on the applicant company, the Government observed that the
latter had merely been prevented from publishing the content of the articles in question and had been ordered to
reimburse modest legal costs. The applicant company had neither been convicted under criminal law nor ordered
to pay damages, unlike publishers in other cases who had been given a custodial sentence; nor had it been prevented
from carrying on the profession of journalist or faced an order for the seizure of all copies of the particular edition
of a newspaper or an order to pay hefty damages (Cump, ni and Maztre v. Romania [GC], no. 33348/96, 112,
ECHR 2004-XI; Wirtschafts-Trend Zeitschriften-VerlagsGmbH v. Austria, no. 58547/00, 41, 27 October 2005;
and Flinkkild and Others v. Finland,no. 25576/04, 89, 6 April 2010). The Government added that the German
courts had not, moreover, imposed a blanket ban on all reporting of X's arrest and trial; the problem had been
that the applicant company had failed to maintain the anonymity of the actor at the time of his arrest and prior
to the trial.

61. The Government highlighted the margin of appreciation enjoyed by the State in the present case. That
margin depended on the nature of the activities in question and the aim pursued by the restrictions. In its recent
case-law, the Court had moreover left the State a broad margin of appreciation in cases concerning Article 8 of
the Convention. (Armoniene v. Lithuania, no. 36919/02, 38, 25 November 2008, and A. v. Norway, no. 28070/
06, 66, 9 April 2009). Generally speaking, the margin enjoyed by the States was broader where there was no
European consensus. In the Government's submission, whilst there was admittedly a trend towards harmonisation
of the legal systems in Europe, differences nevertheless remained, as evidenced by the failure of the negotiations
for the adoption of a regulation of the European Union on conflict-of-law rules regarding non-contractual obligations
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

(Regulation EC No. 864/2007 of 11 July 2007 - Rome II Regulation). The margin of appreciation was also broad
where the national authorities had to strike a balance between competing private and public interests or Convention
rights (Evans v. the United Kingdom [GC], no. 6339/05, 77, ECHR 2007-1, and Dickson v. the United Kingdom
[GC], no. 44362/04, 78 ECHR 2007-XIII). Moreover, the case-law of the Court of Justice of the European
Union apparently took the same approach (cases of Omega of 14 October 2004, C-36/02, and Schmidberger of
12 June 2003, C-112/00).
62. The Government argued that the special nature of certain cases, such as the present one, in which the
domestic courts were required to balance the rights and interests of two or more private individuals lay in the fact
that the proceedings before the Court were in fact a continuation of the original legal action, with each party to
the domestic proceedings potentially able to apply to the Court. It was precisely for that reason that one result
alone of the balancing exercise of the competing interests was insufficient, and that there should be a "corridor"
of solutions within the confines of which the national courts should be allowed to give decisions in conformity
with the Convention. Failing that, the Court would have to take the decision on every case itself, which could
hardly be its role.
63. The Government stated that there had been slightly less of a tendency to do this at domestic level because
the Federal Constitutional Court granted the ordinary courts a margin of appreciation in that respect and refrained
from carrying out its own balancing exercise in their stead. That could, moreover, explain the absence of reasons
given for the decision of the Federal Constitutional Court in the present case. The tendency, at national level, to
reduce the scope of review by a constitutional court should apply a fortiori to the European Court of Human
Rights, which had the task of examining the outcome of balancing exercises carried out by the courts in 47
Contracting States, whose legal systems were still very heterogeneous.
64. In the Government's submission, the Court should intervene only where the domestic courts had not taken
account of certain specific circumstances when undertaking the balancing exercise or where the result of that
exercise was patently disproportionate (Cumpdni and Mazare, cited above, 111-120). That conclusion was
confirmed, moreover, by Article 53 of the Convention: where the relationship between State and citizen was
concerned, a gain of freedom for the individual concerned involved only a loss of competence for the State,
whereas in the relationship between two citizens the fact of attaching more weight to the right of one of the persons
concerned restricted the right of the others, which was forbidden under Article 53 of the Convention.
(b) The applicant company
65. The applicant company maintained that at the material time X was a well-known actor who played the
main role in a television crime series that was extremely popular, especially among young male adults; X had,
moreover, been voted second most popular actor in 2002. He was not therefore just an ordinary individual who
did not attract media attention, as had been so in other cases decided by the Court (see, inter alia, Sciacca v. Italy,
no. 50774/99, ECHR 2005-1; Toma v. Romania, no. 42716/02, 24 February 2009; and Egeland and Hanseid v.
Norway, no. 34438/04, 16 April 2009).
66. In the applicant company's submission, the commission of a criminal offence was, by its very nature, never
a purely private matter. Furthermore, in the present case X was a repeat offender as he had already been given a
five-month suspended prison sentence in July 2000 and fined EUR 5,000 for possession of drugs.
67. The public's interest in being informed prevailed over X's right to respect for his private life. X had - of
his own initiative - courted public attention, had a market value corresponding to his high profile, had willingly
allowed photos to be taken of himself on public occasions and had given press interviews revealing aspects of
his private life, including his drug consumption. As a role model and having himself entered the public arena, X
should have accepted that he would attract the public's attention, in particular if he committed a criminal offence.
The applicant company argued that anyone who used the media for self-promotion should expect their conduct
to be truthfully reported on by the media. This was particularly true in X's case because, following his first
conviction for possession of drugs, he had asserted that he had given up taking drugs. He had accordingly waived
his right to privacy.
68. The applicant company stated, further, that the truth-of the facts reported in the articles in question was
not disputed (citing, conversely, Pedersen and Baadsgaardv. Denmark [GC], no. 49017/99, ECHR 2004-XI).
20121 AXEL SPRINGER AG v. GERMANY (EUR. CT. H.R.)

The information given had, moreover, not affected the conduct of the preliminary investigation or the trial (citing,
conversely, Tourancheau and July v. France, no. 53886/00, 24 November 2005); it had included details not only
about X's private life, but also serious factual information about criminal law and the consequences of drug taking.
The present case was thus distinguishable from the case of Von Hannover (cited above), especially as, unlike X,
the applicant in that case had always sought to protect her private life.
69. The applicant company reiterated that it had reported on X's arrest after the prosecution authorities had
disclosed the facts and the identity of the person arrested. In its submissions at the hearing, particularly in reply
to the judges' questions, it had stated that prior to publication of the articles the Munich public prosecutor's office
had held a press conference - in the presence of television cameras - during which it had provided detailed
information. The public prosecutor's office had also published a long press release on the subject. Accordingly,
the applicant company had published only information that had already been made public. It would be demotivating
for journalists not to be able to publish such information. Attending a press conference would be a complete waste
of time.
70. In conclusion, the applicant company submitted that the press should not be reduced to reporting only on
political figures. Since prominent persons were able to establish a certain image of themselves by seeking the
attention of the media, the latter should be permitted to correct that image when it no longer corresponded to the
reality. It was not a question of asserting the primacy of the freedom of expression over the night to respect for
private life. Freedom of expression should, however, prevail where the person concerned enjoyed a more than
regional degree of prominence and had freely engaged in his or her self-promotion.
2. Third parties' observations
(a) Media Lawyers Association
71. The third-party association submitted that the right to reputation was not protected by the Convention.
Publication of a defamatory article about a person did not, of itself, amount to an interference with the exercise
of the rights guaranteed under Article 8. When balancing the rights under Articles 8 and 10 of the Convention
wide and strong protection should be given to the right of the media to report on all matters of public interest
and in particular to inform the public about judicial proceedings. The third-party association observed that the
inclusion of a person's name or other identifying detail played an important part in fulfilling the task of informing
the public.
72. According to a United Kingdom Supreme Court ruling, if the names of the parties were not revealed when
reporting on court proceedings the report would be disembodied, readers would be less interested and editors
would give the report lower priority. The Media Lawyers Association also stressed the importance of preserving
a wide editorial discretion and the principle of open justice to which the media contributed an essential element,
adding that there should be no incursion into that principle except where strictly necessary such as protecting a
defendant or witness by anonymity. Other than in those circumstances, there should be no restriction on the right
of the media to publish reports on court proceedings including photographs.
(b) Joint submissions by the Media Legal Defence Initiative, International Press Institute and
World Association of Newspapers and News Publishers
73. The three third-party associations submitted that a broad trend could be observed across the Contracting
States towards the assimilation by the national courts of the principles and standards articulated by the Court
relating to the balancing of the rights under Article 8 against those under Article 10 of the Convention, even if
the individual weight given to a particular factor might vary from one State to another. They invited the Court to
grant a broad margin of appreciation to the Contracting States, submitting that such was the thrust of Article 53
of the Convention. They referred to the Court's judgment in the case of Chassagnouand Others v. France ([GC],
nos. 25088/94, 28331/95 and 28443/95, 113, ECHR 1999-II), submitting that the Court had indicated that it
would allow Contracting States a wide margin of appreciation in situations of competing interests.

74. The Contracting States were likewise generally granted a wider margin in respect of positive obligations
in relationships between private parties or other areas in which opinions within a democratic society might
reasonably differ significantly (Frettiv. France, no. 36515/97, 41, ECHR 2002-1). The Court had, moreover,
 INTERNATIONAL LEGAL MATERIALS [VOtL S1:

already allowed the Contracting States a broad margin of appreciation in a case concerning a balancing exercise
in respect of rights under Articles 8 and 10 of the Convention (A. v. Norway, cited above, 66). Its role was
precisely to confirm that the Contracting States had put in place a mechanism for the determination of a fair
balance and whether particular factors taken into account by the national courts in striking such a balance were
consistent with the Convention and its case-law. It should only intervene where the domestic courts had considered
irrelevant factors to be significant or where the conclusions reached by the domestic courts were clearly arbitrary
or summarily dismissive of the privacy or reputational interests at stake. Otherwise, it ran the risk of becoming
a court of appeal for such cases.
3. The Court's assessment
75. The parties agreed that the judicial decisions given in the present case constituted an interference with the
applicant company's right to freedom of expression as guaranteed by Article 10 of the Convention.
76. Such interference contravenes the Convention if it does not satisfy the requirements of paragraph 2 of
Article 10. It therefore falls to be determined whether the interference was "prescribed by law", had an aim or
aims that is or are legitimate under Article 10 2 and was "necessary in a democratic society" for the aforesaid
aim or aims.
77. It is common ground between the parties that the interference was prescribed by Articles 823 1 and 1004
1 of the Civil Code (see paragraphs 18 and 47 above), read in the light of the right to protection of personality
rights. They also agree that it pursued a legitimate aim - namely, the protection of the reputation or rights of
others - within the meaning of Article 10 2 of the Convention, which, according to the Court's case-law (Chauvy
and Others v. France,no. 64915/01, 70, ECHR 2004-VI, and Pfeiferv. Austria, no. 12556/03, 35, 15 November
2007), can encompass the right to respect for private life within the meaning of Article 8. The parties disagree,
however, as to whether the interference was "necessary in a democratic society".
(a) General principles
(i) Freedom of expression
78. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the
basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it
is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as
a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance
and broadmindedness without which there is no "democratic society". As set forth in Article 10, freedom of
expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions
must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December
1976, 49, Series A no. 24; EditionsPlon v. France,no. 58148/00, 42, ECHR 2004-IV; and Lindon, Otchakovsky-
Laurens and July v. France [GC], nos. 21279/02 and 36448/02, 45, ECHR 2007-IV).
79. The Court has also repeatedly emphasised the essential role played by the press in a democratic society.
Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights
of others, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities -
information and ideas on all matters of public interest. Not only does the press have the task of imparting such
information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable
to play its vital role of "public watchdog" (see Bladet Tromso and Stensaas v. Norway [GCJ, no. 21980/93,
59 and 62, ECHR 1999-111, and Pedersen and Baadsgaard,cited above, 71).
80. This duty extends to the reporting and commenting on court proceedings which, provided that they do not
overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under
Article 6 1 of the Convention that hearings be public. It is inconceivable that there can be no prior or contemporane-
ous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the
public at large. Not only do the media have the task of imparting such information and ideas; the public also has
a right to receive them (see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, 56, ECHR 2000-1; Dupuis
and Others v. France,no. 1914/02 35, ECHR 2007-VIl; and Campos Ddtmaso v. Portugal,no. 17107/05, 31,
24 April 2008).
20121 AXEL SPRINGER AG V. GERMANY (EuR. CT. H.R.)

81. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see
Pedersen and Baadsgaard,cited above, 71). Furthermore, it is not for the Court, any more than it is for the
national courts, to substitute its own views for those of the press as to what techniques of reporting should be
adopted in a particular case (see Jersild v. Denmark, 23 September 1994, 31, Series A no. 298, and Eerikainen
and Others v. Finland,no. 3514/02, 65, 10 February 2009).
(ii) Limits on the freedom of expression
82. However, Article 10 2 of the Convention states that freedom of expression carries with it "duties and
responsibilities", which also apply to the media even with respect to matters of serious public concern. These
duties and responsibilities are liable to assume significance when there is a question of attacking the reputation
of a named individual and infringing the "rights of others". Thus, special grounds are required before the media
can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals.
Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the
extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see
Pedersen and Baadsgaard,cited above, 78, and Tonsbergs Blad A.S. and Haukom v. Norway, no. 510/04, 89,
ECHR 2007-111).
83. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of
the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, 70; Pfeifer,
cited above, 35; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, 40, 21 September 2010).
The concept of "private life" is a broad term not susceptible to exhaustive definition, which covers the physical
and psychological integrity of a person and can therefore embrace multiple aspects of a person's identity, such
as gender identification and sexual orientation, name or elements relating to a person's right to their image (see
S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, 66, ECHR 2008-...). It covers personal
information which individuals can legitimately expect should not be published without their consent (see Flinkkild
and Others, cited above, 75, and Saaristo and Others v. Finland,no. 184/06, 61, 12 October 2010).
In order for Article 8 to come into play, however, an attack on a person's reputation must attain a certain
level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private
life (see A. v. Norway, cited above, 64). The Court has held, moreover, that Article 8 cannot be relied on in
order to complain of a loss of reputation which is the foreseeable consequence of one's own actions such as, for
example, the commission of a criminal offence (see Sidabras andD_iautas v. Lithuania, nos. 55480/00 and 59330/
00, 49, ECHR 2004-VIII).
84. When examining the necessity of an interference in a democratic society in the interests of the "protection
of the reputation or rights of others", the Court may be required to verify whether the domestic authorities struck
a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each
other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other,
the right to respect for private life enshrined in Article 8 (see Hachette FilipacchiAssocies v. France, no. 71111/
01, 43, 14 June 2007, and MGN Limited v. the United Kingdom, no. 39401/04, 142, 18 January 2011).
(iii) Margin of appreciation
85. The Court reiterates that, under Article 10 of the Convention, the Contracting States enjoy a certain margin
of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed
under that provision is necessary (see Tammer v. Estonia, no. 41205/98, 60, ECHR 2001-1, and Pedersen and
Baadsgaard,cited above, 68).
86. However, this margin goes hand in hand with European supervision, embracing both the legislation and
the decisions applying it, even those delivered by an independent court (see Karhuvaaraand Iltalehti v. Finland,
no. 53678/00, 38, ECHR 2004-X, and Flinkkild and Others, cited above, 70). In exercising its supervisory
function, the Court's task is not to take the place of the national courts, but rather to review, in the light of the
case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible
with the provisions of the Convention relied on (see Petrenco v. Moldova, no. 20928/05, 54, 30 March 2010;
Polanco Torres and Movilla Polanco,cited above, 41; and Petrov v. Bulgaria (dec.), no. 27103/04, 2 November
2010).
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

87. In cases such as the present one the Court considers that the outcome of the application should not, in
principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the
publisher who has published the offending article or under Article 8 of the Convention by the person who was
the subject of that article. Indeed, as a matter of principle these rights deserve equal respect (see Hachette Filipacchi
Associis (ICI PARIS) v. France, no. 12268/03, 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03,
144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, 111, 10 May 2011; see also point
11 of the Resolution of the Parliamentary Assembly - paragraph 51 above). Accordingly, the margin of appreciation
should in principle be the same in both cases.
88. Where the balancing exercise between those two rights 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 MGN Limited, cited above, 150 and 155, and Palomo Sdnchez
and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, 57, 12 September 2011).
(iv) Criteria relevantfor the balancing exercise

89. Where the right to freedom of expression is being balanced against the right to respect for private life, the
criteria laid down in the case-law that are relevant to the present case are set out below.
(a) Contribution to a debate of general interest
90. An initial essential criterion is the contribution made by photos or articles in the press to a debate of general
interest (see Von Hannover, cited above, 60; Leempoel & S.A. ED. Cini Revue v. Belgium, no. 64772/01, 68,
9 November 2006; and Standard Verlags GmbH v. Austria (no. 2), no. 21277/05 46, 4 June 2009). The definition
of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless
considers it useful to point out that it has recognised the existence of such an interest not only where the publication
concerned political issues or crimes (see White v. Sweden, no. 42435/02, 29, 19 September 2006; Egeland and
Hanseid,cited above, 58; and Leempoel & S.A. ED. Cini Revue, cited above, 72), but also where it concerned
sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, 25,
22 February 2007; Cola~o Mestre and SIC - Sociedade Independente de Comunica do, S.A. v. Portugal,nos.
11182/03 and 11319/03, 28, 26 April 2007; and Sapan v. Turkey, no. 44102/04, 34, 8 June 2010). However,
the rumoured marital difficulties of a president of the Republic or the financial difficulties of a famous singer
were not deemed to be matters of general interest (see Standard Verlags GmbH, cited above, 52, and Hachette
FilipacchiAssociis (ICI PARIS), cited above, 43).

(13) How well known is the person concerned and what is the subject of the report?
91. The role or function of the person concerned and the nature of the activities that are the subject of the
report and/or photo constitute another important criterion, related to the preceding one. In that connection a
distinction has to be made between private individuals and persons acting in a public context, as political figures
or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection
of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no.
14991/02, 14 June 2005, and Petrenco, cited above, 55). A fundamental distinction needs to be made between
reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise
of their official functions for example, and reporting details of the private life of an individual who does not
exercise such functions (see Von Hannover, cited above, 63, and Standard Verlags GmbH, cited above, 47).
Whilst in the former case the press exercises its role of "public watchdog" in a democracy by imparting
information and ideas on matters of public interest, that role appears less important in the latter case. Similarly,
although in certain special circumstances the public's right to be informed can even extend to aspects of the private
life of public figures, particularly where politicians are concerned, this will not be the case - even where the
persons concerned are quite well known to the public - where the published photos and accompanying commentaries
relate exclusively to details of the person's private life and have the sole aim of satisfying the curiosity of a
particular readership in that respect (see Von Hannover, cited above, 65 with the references cited therein, and
Standard Verlags GmbH, cited above, 53; see also point 8 of the Resolution of the Parliamentary Assembly -
paragraph 51 above). In the latter case, freedom of expression calls for a narrower interpretation (see Von Hannover,
cited above, 66; Hachette FilipacchiAssociis (ICI PARIS), cited above, 40; and MGN Limited, cited above,
20121 AXEL SPRINGER AG v. GERMANY (EUR. CT. H.R.)

143).
(y) Prior conduct of the person concerned
92. The conduct of the person concerned prior to publication of the report or the fact that the photo and the
related information have already appeared in an earlier publication are also factors to be taken into consideration
(see Hachette FilipacchiAssociis (ICI PARIS), cited above, 52 and 53, and Sapan, cited above, 34). However,
the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving
the party concerned of all protection against publication of the report or photo at issue (see Egeland and Hanseid,
cited above, 62).
(6) Method of obtaining the information and its veracity
93. The way in which the information was obtained and its veracity are also important factors. Indeed, the
Court has held that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general
interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide
"reliable and precise" information in accordance with the ethics of journalism (see, for example, Fressoz and
Roire v. France [GC], no. 29183/95, 54, ECHR 1999-I; Pedersen and Baadsgaard,cited above, 78; and Stoll
v. Switzerland [GC], no. 69698/01, 103, ECHR 2007-V).
(E) Content, form and consequences of the publication
94. The way in which the photo or report are published and the manner in which the person concerned is
represented in the photo or report may also be factors to be taken into consideration (see Wirtschafts-Trend
Zeitschriften-Verlagsgesellschaftm.b.H. v. Austria (no. 3), nos. 66298/01 and 15653/02, 47, 13 December 2005;
Reklos and Davourlis v. Greece, no. 1234/05, 42, 15 January 2009; and Jokitaipale and Others v. Finland,no.
43349/05, 68, 6 April 2010). The extent to which the report and photo have been disseminated may also be an
important factor, depending on whether the newspaper is a national or local one, and has a large or a limited
circulation (see Karhuvaaraand Iltalehti, cited above, 47, and Gurgenidze v. Georgia, no. 71678/01, 55, 17
October 2006).
(t) Severity of the sanction imposed
95. Lastly, the nature and severity of the sanctions imposed are also factors to be taken into account when
assessing the proportionality of an interference with the exercise of the freedom of expression (see Pedersen and
Baadsgaard,cited above, 93, and Jokitaipale and Others, cited above, 77).
(b) Application to the present case
(i) Contribution to a debate of general interest
96. The Court notes that the articles in question concern the arrest and conviction of the actor X, that is, public
judicial facts that may be considered to present a degree of general interest. The public do, in principle, have an
interest in being informed - and in being able to inform themselves - about criminal proceedings, whilst strictly
observing the presumption of innocence (see News Verlags GmbH & Co. KG, cited above, 56; Dupuis and
Others, cited above, 37; and Campos Damaso, cited above, 32; see also Recommendation Rec(2003)13 of
the Committee of Ministers and in particular principles nos. 1 and 2 appended thereto - paragraph 50 above).
That interest will vary in degree, however, as it may evolve during the course of the proceedings - from the time
of the arrest - according to a number of different factors, such as the degree to which the person concerned is
known, the circumstances of the case and any further developments arising during the proceedings.
(ii) How well known is the person concerned and what is the subject of the report?
97. The Court notes the substantially different conclusions reached by the national courts in assessing how
well known X was. In the Regional Court's opinion, X was not a figure at the centre of public attention and had
not courted the public to a degree that he could be considered to have waived his right to the protection of his
personality rights, despite being a well-known actor and frequently appearing on television (see paragraph 23
above). The Court of Appeal, however, found that X was a well-known and very popular figure and had played
 INTERNATIONAL LEGAL MATERIALS [VOL. Sl:

the part of a police superintendent over a long period of time without himself having become a model law-
enforcement officer, which would have justified the public's interest in the question whether in his private life he
actually behaved like his character (see paragraphs 33 and 34 above).
98. The Court considers that it is, in principle, primarily for the domestic courts to assess how well known a
person is, especially where that person is mainly known at national level. It notes in the present case that at the
material time X was the main actor in a very popular detective series, in which he played the main character,
Superintendent Y. The actor's popularity was mainly due to that television series, of which, when the first article
appeared, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Superintendent Y.
Accordingly, he was not, as the Regional Court appeared to suggest, a minor actor whose renown, despite a large
number of appearances in films (more than 200 - see paragraph 22 above), remained limited. It should also be
noted in that connection that the Court of Appeal referred not only to the existence of X's fan clubs, but also to
the fact that his admirers could have been encouraged to imitate him by taking drugs, if the offence had not been
committed out of public view (see paragraph 32 above).
99. Furthermore, whilst it can be said that the public does generally make a distinction between an actor and
the character he or she plays, there may nonetheless be a close link between the popularity of the actor in question
and his or her character where, as in the instant case, the actor is mainly known for that particular role. In the
case of X, that role was, moreover, that of a police superintendent, whose mission was law enforcement and crime
prevention. That fact was such as to increase the public's interest in being informed of X's arrest for a criminal
offence. Having regard to those factors and to the terms employed by the domestic courts in assessing the degree
to which X was known to the public, the Court considers that he was sufficiently well known to qualify as a
public figure. That consideration thus reinforces the public's interest in being informed of X's arrest and of the
criminal proceedings against him.
100. With regard to the subject of the articles, the domestic courts found that the offence committed by X was
not a petty offence as cocaine was a hard drug. The offence was nevertheless of medium, or even minor, seriousness,
owing both to the small quantity of drugs in X's possession - which, moreover, were for his own personal
consumption - and to the high number of offences of that type and related criminal proceedings. The domestic
courts did not attach much importance to the fact that X had already been convicted of a similar offence, pointing
out that this had been his only previous offence and, moreover, had been committed some years previously. They
concluded that the applicant company's interest in publishing the articles in question was solely due to the fact
that X had committed an offence which, if it had been committed by a person unknown to the public, would
probably never have been reported on (see paragraph 20 above).
The Court can broadly agree with that assessment. It would observe, however, that X was arrested in public,
in a tent at the beer festival in Munich. In the Court of Appeal's opinion, that fact was a matter of important
public interest in this case, even if that interest did not extend to the description and characterisation of the offence
in question as it had been committed out of public view.
(iii) X's conduct prior to publication of the impugned articles
101. Another factor is X's prior conduct vis-ti-vis the media. He had himself revealed details about his private
life in a number of interviews (see paragraph 25 above). In the Court's view, he had therefore actively sought the
limelight, so that, having regard to the degree to which he was known to the public, his "legitimate expectation"
that his private life would be effectively protected was henceforth reduced (see, mutatis mutandis, Hachette
FilipacchiAssociis (ICI PARIS), cited above, 53, and, by converse implication, Eerikiinen and Others, cited
above, 66).
(iv) Method of obtaining the information and its veracity
102. With regard to the method of obtaining the published information, the applicant company submitted that
it had reported on X's arrest only after the disclosure, by the prosecuting authorities, of the facts and of the identity
of the accused. It also asserted that all the information that it had published had already been made public,
particularly during a press conference and in a press release issued by the public prosecutor's office (see paragraph
69 above). The Government denied that any such press conference had been held by the public prosecutor's office
and submitted that it was not until after the applicant company had published the first article that the prosecutor
20121 AXEL SPRINGER AG v. GERMANY (EuR. CT. H.R.)

W. had confirmed to other media the facts related by the applicant company.
103. The Court observes that it cannot be determined from the documents in its possession whether or not the
applicant company's assertions that a press conference had been held and a press release issued prior to publication
of the first article are substantiated. On the contrary, following a question put by the Court at the hearing the
assertions in question turned out to be unfounded. The Court finds the attitude of the applicant company regrettable
in this respect.
104. It can be seen, however, from the court decisions delivered in the present case and the observations of
the parties to the domestic proceedings that this point was not dealt with before the domestic courts. For the
purposes of examination of the present case, the Court will merely observe that the applicant company attached
to all its replies in the various domestic proceedings a statement by one of its journalists as to how the information
published on 29 September 2004 had been obtained (see paragraphs 11 and 12 above) and that the Government
have not contested the truth of that statement. Consequently, whilst the applicant company is not justified in
claiming that it had merely published information made public at a press conference held by the Munich public
prosecutor's office, the fact remains that the confirmation of the published information, and in particular X's
identity, emanated from the police and the prosecutor W., who was, moreover, press officer for the Munich public
prosecutor's office at the time.
105. Consequently, as the first article was based on information provided by the press officer at the Munich
public prosecutor's office, it had a sufficient factual basis (see Bladet Tromso and Stensaas, cited above, 72;
Eerikiiinen and Others, cited above, 64; and Pipi v. Turkey (dec.), no. 4020/03, 15 May 2009). The truth of the
information related in both articles was, moreover, not in dispute between the parties to the domestic proceedings,
and neither is it in dispute between the parties to the proceedings before the Court (see Karhuvaaraand Iltalehti,
cited above, 44).
106. However, in the opinion of the domestic courts examining the case, the fact that the information had
emanated from the Munich public prosecutor's office merely meant that the applicant company could rely on its
veracity; it did not dispense it from the duty to balance its interest in publishing the information against X's right
to respect for his private life. They found that that balancing exercise could only be undertaken by the press
because a public authority was not in a position to know how or in what form the information would be published
(see paragraphs 27-30 above).
107. In the Court's opinion, there is nothing to suggest that such a balancing exercise was not undertaken. The
fact is, however, that having regard to the nature of the offence committed by X, the degree to which X is well
known to the public, the circumstances of his arrest and the veracity of the information in question, the applicant
company - having obtained confirmation of that information from the prosecuting authorities themselves - did
not have sufficiently strong grounds for believing that it should preserve X's anonymity. In that context, it should
also be pointed out that all the information revealed by the applicant company on the day on which the first article
appeared was confirmed by the prosecutor W. to other magazines and to television channels. Likewise, when the
second article appeared, the facts leading to X's conviction were already known to the public (see, mutatis mutandis,
Aleksey Ovchinnikov v. Russia, no. 24061/04, 49, 16 December 2010). Moreover, the Court of Appeal itself
considered that the applicant company's liability did not extend beyond minor negligence given that the information
disclosed by the public prosecutor's office had led it to believe that the report was lawful (see paragraph 35 above).
In the Court's view, it has not therefore been shown that the applicant company acted in bad faith when publishing
the articles in question.
(v) Content, form and consequences of the impugned articles
108. The Court observes that the first article merely related X's arrest, the information obtained from W. and
the legal assessment of the seriousness of the offence by a legal expert (see paragraph 13 above). The second
article only reported the sentence imposed by the court at the end of a public hearing and after X had confessed
(see paragraph 15 above). The articles did not therefore reveal details about X's private life, but mainly concerned
the circumstances of and events following his arrest (see Flinkkild and Others, cited above, 84, and Jokitaipale
and Others, cited above, 72). They contained no disparaging expression or unsubstantiated allegation (see the
case-law cited in paragraph 82 above). The fact that the first article contained certain expressions which, to all
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

intents and purposes, were designed to attract the public's attention cannot in itself raise an issue under the Court's
case-law (see Flinkkila and Others, cited above, 74, and Pipi, above-cited decision).
The Court notes, moreover, that the Regional Court imposed an injunction on publication of the photos
accompanying the impugned articles and that the applicant company did not challenge that injunction. It therefore
considers that the form of the articles in question did not constitute a ground for banning their publication.
Furthermore, the Government did not show that publication of the articles had resulted in serious consequences
for X.
(vi) Severity of the sanction imposed on the applicant company
109. Regarding, lastly, the severity of the sanctions imposed on the applicant company, the Court considers
that, although these were lenient, they were capable of having a chilling effect on the applicant company. In any
event, they were not justified in the light of the factors set out above.
(c) Conclusion
110. In conclusion, the grounds advanced by the respondent State, although relevant, are not sufficient to
establish that the interference complained of was necessary in a democratic society. Despite the margin of
appreciation enjoyed by the Contracting States, the Court considers that there is no reasonable relationship of
proportionality between, on the one hand, the restrictions imposed by the national courts on the applicant company's
right to freedom of expression and, on the other hand, the legitimate aim pursued.
111. Accordingly, there has been a violation of Article 10 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
112. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the Protocols thereto,
and if the internal law of the High Contracting Party concerned allows only partial reparation to
be made, the Court shall, if necessary, afford just satisfaction to the injured party."
A. Damage
113. The applicant company claimed EUR 27,734.28 in respect of pecuniary damage, corresponding to the
three penalties that it had had to pay X (EUR 11,000 - see paragraphs 31 and 46 above), and X's legal costs
(EUR 1,261.84 - paragraphs 18 and 40 above) and lawyers' fees (EUR 15,472.44 ) which it had had to reimburse.
It referred, on the latter point, to the case of Verlagsgruppe News GmbH v. Austria (no. 2), (no. 10520/02, 46,
14 December 2006).
114. The Government did not comment in that connection.
115. The Court finds that there is a sufficient causal link between the violation found and the amounts claimed,
except those corresponding to the two penalty payments of EUR 5,000. Accordingly, it awards EUR 17,734.28
under this head.
B. Costs and expenses
116. The applicant company sought EUR 32,522.80 in respect of costs and expenses. That sum included court
costs (EUR 6,610) and lawyers' fees for the proceedings before the civil courts (EUR 13,972.50), the Federal
Constitutional Court (EUR 5,000) and the Court (EUR 5,000), plus translation costs for the proceedings before
the Court (EUR 1,941.30). The applicant company specified that although it had agreed on a higher amount of
fees with its lawyers, it was claiming only the amounts provided for in the statutory fee scales. With regard to
the amounts claimed for lodging the appeal with the Federal Constitutional Court and the application before the
Court, the applicant company left the matter to the Court's discretion, whilst specifying that it sought at least EUR
5,000 in respect of each set of proceedings.
117. The Government noted that the applicant company limited its claims for lawyers' fees to the amounts set
out in the scales applicable in Germany, which was not open to criticism. They contested the amounts claimed
20121 AXEL SPRINGER AG v. GERMANY (EUR. CT. H.R.)

for the proceedings before the Federal Constitutional Court and before the Court, however, for lack of particulars.
They indicated that where the Federal Constitutional Court declined to entertain a constitutional appeal, it generally
fixed the value of the subject matter of the case at EUR 4,000. The corresponding lawyers' fees would in that
case amount to EUR 500 inclusive of tax.
118. The Court finds the sums claimed to be reasonable and, accordingly, awards those sums.
C. Default interest
119. The Court considers it appropriate that the default interest should be based on the marginal lending rate
of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Disjoins, unanimously, the applications in the case of Von Hannover v. Germany (nos. 40660/08 and 60641/
08) from the present application;
2. Declares, unanimously, the application admissible;
3. Holds, by twelve votes to five, that there has been a violation of Article 10 of the Convention;
4. Holds, by twelve votes to five,
(a) that the respondent State is to pay the applicant company, within three months, the following
amounts:
(i) EUR 17,734.28 (seventeen thousand seven hundred and thirty-four euros and twenty-eight
centimes), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 32,522.80 (thirty-two thousand five hundred and twenty-two euros and eighty centimes),
plus any tax that may be chargeable to the applicant company, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall
be payable on the above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
5. Dismisses, unanimously, the remainder of the applicant company's claim in respect of just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg,
on 7 February 2012.
Michael O'Boyle Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 2 of the Convention and Rule 74 2 of the Rules of Court, the dissenting
opinion of Judge L6pez Guerra joined by Judges Jungwiert, Jaeger, Villiger and Poalelungi is annexed to this
judgment.
N.B.
M.O'B.
 INTERNATIONAL LEGAL MATERIALS [VOL S1:

DISSENTING OPINION OF JUDGE LOPEZ GUERRA JOINED BY JUDGES JUNGWIERT,

JAEGER, VILLIGER AND POALELUNGI

I do not agree with the finding by the Grand Chamber of a violation of Article 10 of the Convention. In my
opinion, in the present case the Grand Chamber had no grounds for concluding that the domestic courts did not
duly protect the applicant company's right to freedom of expression.
I certainly agree with the Grand Chamber's determination of the facts of the case. It correctly established that
there had been an interference with the applicant company's right to freedom of expression as recognised in Article
10 of the Convention (in this case, the right to publish certain information) as a result of court sanctions imposed
on it for publishing two press articles concerning the arrest and sentencing of a third person. I also agree with the
Grand Chamber that the sanctions were provided for by law and pursued a legitimate end, namely, respect for
the rights of others, in this case the right to privacy (including the right to respect for one's reputation) as recognised
in Article 8 of the Convention. I also agree with the Grand Chamber's assertion (see paragraph 76 of the judgment)
that the Court's task was to determine whether those sanctions were necessary in a democratic society pursuant
to the terms of Article 10 2 of the Convention. Also, as indicated in subsequent paragraphs of the Grand Chamber
judgment, in order to answer this question this Court had to decide whether the domestic courts had adequately
weighed the conflicting rights and interests, namely, the right to freedom of expression versus the right to privacy.
My difference of opinion with the Grand Chamber judgment derives from its further reasoning. According to
our consolidated case-law as cited in this judgment (see Petrenco v. Moldova, no. 20928/05, 54, 30 March 2010;
Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010; and Polanco Torres and Movilla Polanco v. Spain,
no. 34147/06, 40, 21 September 2010), it is not -the task of this Court to assume the role of the competent
national courts in determining the merits of the case, but rather to review the decisions those courts render in the
exercise of their powers of appreciation. Concerning compliance with Article 10 of the Convention, the domestic
courts have a certain margin of appreciation (see Von Hannover v. Germany, no. 59320/00, 57, ECHR 2004-
VI, and Lappalainenv. Finland(dec.), no. 22175/06, 20 January 2009) although, as the Grand Chamber underscores
in the present judgment (see paragraph 86) their decisions are subject to the scrutiny of this Court. In that regard,
this Court has established a series of criteria which must be followed when assessing how the domestic courts
have balanced conflicting rights, including, inter alia, the published information's contribution to a debate of
general interest, the previous behavior and degree of notoriety of the person affected, the content and veracity of
the information, and the nature of the sanctions and penalties imposed. In balancing the conflicting rights in the
cases brought before them, national authorities (in this case, the national courts) must apply these criteria in
reaching their decision, whilst appraising, with the benefit of direct examination, the facts and circumstances of
the case when applying their domestic law.
In order to exercise this Court's powers of review without becoming a fourth instance, our task in guaranteeing
respect for Convention rights in this type of case is essentially to verify whether the domestic courts have duly
balanced the conflicting rights and have taken into account the relevant criteria established in our case-law without
any manifest error or omission of any important factor. Where these prerequisites have been met, that is, the
domestic courts have expressly weighed the conflicting rights and interests and applied the pertinent criteria
established in our above-cited case-law, an additional assessment of the competing interests by this Court, examining
anew the facts and circumstances of the case, is tantamount to acting as a fourth instance (or, as now, a fifth
instance).
In the present case the domestic courts (mainly the Hamburg Regional Court and the Court of Appeal) certainly
performed the required balancing exercise. Concerning each of the published articles, on two consecutive occasions
those courts assessed the competing interests derived from freedom of expression and the safeguard of privacy.
In extensive reasoning they explained their final judgments and their reasons for giving more weight to the
protection of the right to privacy and reputation. These judgments exhaustively examined the different aspects
and circumstances of the question, including the relevance of the matter for the public interest, the degree of
notoriety of the person affected, the nature of the crime of which he was suspected and subsequently accused and
sentenced, and the severity of the sanction imposed on the applicant company. Furthermore - albeit indirectly -
the domestic Court of Appeal consciously applied our Court's criteria by using as a point of reference the judgment
of the Federal Court of Justice of 15 November 2005, a judgment which expressly cited and applied the criteria
established in our Von Hannover v. Germany judgment of 24 June 2004.
20121 VON HANNOVER V. GERMANY (No. 2) (EUR. CT. H.R.)

There is certainly a possibility that domestic courts may apply the relevant criteria in a manifestly unreasonable
way or may fail to duly assess the presence of some important factor. But in this case the judgments of both the
Hamburg Regional Court and the Court of Appeal demonstrate that both domestic courts carefully weighed all
the relevant facts of the case, with the advantage of their knowledge and their continuous contact with the social
and cultural reality of their country, in a way which cannot be considered arbitrary, careless or manifestly
unreasonable.
In view of the above, none of the grounds which would justify a review by this Court of the judgments of
the domestic courts are present in this case. The domestic courts did not fail to balance the conflicting interests
or to apply the relevant criteria in doing so. They made no manifest error of appreciation; nor did they fail to
consider all the relevant factors. Nevertheless, on this occasion and instead of concentrating its assessment on
whether the domestic courts applied the above-mentioned criteria effectively, the Grand Chamber has chosen to
re-examine the same facts that were brought before the national courts. And this was done in spite of the national
courts having extensively assessed the circumstances of the case in a way that was not manifestly unreasonable,
and with the added benefit of their direct examination of the context in which the events occurred. Analysing the
same facts and using the same criteria and same balancing approach as the domestic courts, the Grand Chamber
came to a different conclusion, giving more weight to the protection of the right to freedom of expression than
to the protection of the right to privacy. But that is precisely what the case-law of this Court has established is
not our task, that is, to set ourselves up as a fourth instance to repeat anew assessments duly performed by the
domestic courts.
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

VON HANNOVER V. GERMANY (NO. 2) (EUR. CT. H.R.)*

[February 7, 2012]
+Cite as 51 ILM 660 (2012)+

EUROPEAN COURT OF HUMAN RIGHIS

COUR EUROPfENNE DES DROITS DE L'HOMME

GRAND CHAMBER

CASE OF VON HANNOVER v. GERMANY (no. 2)

(Applications nos. 40660/08 and 60641/08)

JUDGMENT

STRASBOURG
7 February 2012
This judgment is final but may be subject to editorial revision.
In the case of Von Hannover v. Germany (no. 2)
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Nicolas Bratza, President,
Jean-Paul Costa,
Franqoise Tulkens,
Josep Casadevall,
Lech Garlicki,
Peer Lorenzen,
Karel Jungwiert,
Renate Jaeger,
David Th6r Bj6rgvinsson,
Jin Sikuta,
Mark Villiger,
Luis L6pez Guerra,
Mirjana Lazarova Trajkovska,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Michael O'Boyle, Deputy Registrar,

* This text was reproduced and reformatted from the text available at the European Court of Human Rights Web site
(visited June 5, 2012) http://hudoc.echr.coe.intsites/eng/pages/search.aspx?i=001-109029.
20121 VON HANNOVER V. GERMANY (No. 2) (EuR. Cr. H.R.)

Having deliberated in private on 13 October 2010 and on 7 December 2011,

Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in two applications (nos. 40660/08 and 60641/08) against the Federal Republic of
Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention") by a Monegasque national, Princess Caroline von Hannover, and a
German national, Prince Ernst August von Hannover ("the applicants"), on 22 August and 15 December 2008
respectively.
2. The applicants alleged that the refusal by the German courts to grant an injunction against any further
publication of photos of them infringed their right to respect for their private life as guaranteed by Article 8 of
the Convention.
3. The applications were initially allocated to the Fifth Section of the Court (Rule 52 1 of the Rules of Court -
"the Rules"). On 13 November 2008 a Chamber of that Section decided to give notice of application no. 40660/
08 to the German Government ("the Government"). By virtue of Article 29 3 of the Convention, as worded
at the relevant time, it also decided that the admissibility and merits of the case should be considered together.
On 8 January 2009 the President of the Fifth Section decided to give notice of application no. 60641/08 to the
Government. By virtue of Article 29 3 of the Convention, as worded at the relevant time, he also decided that
the admissibility and merits of the case should be considered together. On 24 November 2009 a Chamber of the
Fifth Section decided to join the two applications.
On 30 March 2010 the Chamber, composed of the following judges: Peer Lorenzen, President,Renate Jaeger,
Karel Jungwiert, Rait Maruste, Mark Villiger, Mirjana Lazarova Trajkovska and Zdravka Kalaydjieva, and also
Claudia Westerdiek, Section Registrar, after deciding to join the present applications to the application Axel
Springer AG v. Germany (no. 39954/08), also communicated by it on 13 November 2008 and concerning an
injunction against the applicant company on publishing two reports on the arrest and criminal conviction of a
television actor, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to
relinquishment (Article 30 of the Convention and Rule 72).
4. The composition of the Grand Chamber was determined according to the provisions of former Article 27
2 and 3 of the Convention (now Article 26 4 and 5) and Rule 24 of the Rules of Court. On 3 November
2011 Jean-Paul Costa's term as President of the Court came to an end. Nicolas Bratza succeeded him in that
capacity and took over the presidency of the Grand Chamber in the present case (Rule 9 2). Mr Costa continued
to sit following the expiry of his term of office, in accordance with Article 23 3 of the Convention and Rule
24 4. At the final deliberations Lech Garlicki and Nona Tsotsoria, substitute judges, replaced Rait Maruste and
Christos Rozakis, who were unable to take part in the further consideration of the case (Rule 24 3).
5. The President of the Grand Chamber decided to maintain the application of Article 29 3 of the Convention
before the Grand Chamber with a view to a joint examination of the admissibility and merits of the applications.
He also decided that the proceedings in the present cases should be conducted simultaneously with those in the
case of Axel SpringerAG v. Germany (Rule 42 2).
6. The applicants and the Government each filed written observations on the admissibility and the merits of
the case. The parties replied in writing to each other's observations.
7. In addition, third-party comments were received from the Association of German Magazine Publishers
(Verband Deutscher Zeitungsverleger), from the publishing company that had published one of the photos in
question, Ehrlich & Sohn GmbH & Co. KG, from the Media Lawyers Association, from the Media Legal Defence
Initiative, from the International Press Institute and from the World Association of Newspapers and News Publishers,
which had been given leave by the President to intervene in the written procedure (Article 36 2 of the Convention
and Rule 44 2). The parties were given an opportunity to reply to those comments (Rule 44 5).
8. Having been informed on 17 November 2008 of their right to submit written observations, the Monegasque
Government indicated to the Court that they did not intend to take part in the proceedings. After being informed
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

of that right again on 31 March 2010, following the decision of the Chamber to relinquish jurisdiction in favour
of the Grand Chamber, the Monegasque Government did not express an intention to take part in the proceedings.
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 13 October 2010 (Rule 59 3).
There appeared before the Court:
(a) for the Government
Mrs A. WITTLING-VOGEL, Federal Ministry of Justice, Agent,
Mr C. WALTER, Professor of Public Law, Counsel,
Mrs A. VON UNGERN-STERNBERG, Assistant,
Mr R. SOMMERLAT-TE, Federal Office for Culture,
Mr A. MAATSCH, Judge of the Hamburg Regional Court, Advisers;

(b) for the applicant company

Mr M. PRiNz, member of the Hamburg Bar,
Mr M. LEHR, member of the Hamburg Bar, Counsels,
Mrs S. LINGENS, Lawyer, Adviser.

The Court heard addresses by Mr Walter and Mr Prinz.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The applicants, who are the elder daughter of the late Prince Rainier III of Monaco and her husband, were
born in 1957 and 1954 respectively and live in Monaco.
A. Background to the cases
11. Since the early 1990s the first applicant has been trying - often through the courts - to prevent the publication
of photos about her private life in the press.
12 Two series of photos, published in 1993 and 1997 respectively in three German magazines and showing
the first applicant with the actor Vincent Lindon or her husband, had been the subject of three sets of proceedings
in the German courts and, in particular, leading judgments of the Federal Court of Justice of 19 December 1995
and of the Federal Constitutional Court of 15 December 1999 dismissing the first applicant's claims.

13. Those proceedings were the subject of the Von Hannover v. Germany judgment of 24 June 2004 (no.
59320/00, ECHR 2004-VI) in which the Court held that the court decisions had infringed the first applicant's
right to respect for her private life, a right guaranteed by Article 8 of the Convention.
14. Regarding the reasoning of the domestic courts, the Court made the following findings in particular:
"72. The Court finds it hard to agree with the domestic courts' interpretation of section 23(1)
of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of
contemporary society "par excellence". Since that definition affords the person very limited
protection of their private life or the right to control the use of their image, it could conceivably
be appropriate for politicians exercising official functions. However, it cannot be justified for a
"private" individual, such as the applicant, in whom the interest of the general public and the
press is based solely on her membership of a reigning family, whereas she herself does not exercise
any official functions.
In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly
to ensure that the State complies with its positive obligation under the Convention to protect
private life and the right to control the use of one's image.
73. Lastly, the distinction drawn between figures of contemporary society "par excellence"
and "relatively" public figures has to be clear and obvious so that, in a State governed by the
20121 VON HANNOVER v. GERMANY (NO. 2) (EUR. Cr. H.R.)

rule of law, the individual has precise indications as to the behaviour he or she should adopt.
Above all, they need to know exactly when and where they are in a protected sphere or, on the
contrary, in a sphere in which they must expect interference from others, especially the tabloid
press.
74. The Court therefore considers that the criteria on which the domestic courts based their
decisions were not sufficient to protect the applicant's private life effectively. As a figure of
contemporary society "par excellence" she cannot - in the name of freedom of the press and the
public interest - rely on protection of her private life unless she is in a secluded place out of the
public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the
case, she has to accept that she might be photographed at almost any time, systematically, and
that the photos are then very widely disseminated even if, as was the case here, the photos and
accompanying articles relate exclusively to details of her private life.
75. In the Court's view, the criterion of spatial isolation, although apposite in theory, is in reality
too vague and difficult for the person concerned to determine in advance. In the present case,
merely classifying the applicant as a figure of contemporary society "par excellence" does not
suffice to justify such an intrusion into her private life."
B. The photos at issue
15. Relying on the Court's judgment in the first applicant's case, the applicants subsequently brought several
sets of proceedings in the civil courts seeking an injunction against any further publication of photos that had
appeared in German magazines.
1. The photos published in the magazine Frau im Spiegel
16. The first three photos were published by the publishing company Ehrlich & Sohn GmbH & Co. KG in the
magazine Frau im Spiegel.
(a) The first photo
17. The first photo, which appeared in issue no. 9/02 of 20 February 2002, shows the applicants out for a walk
during their skiing holiday in St. Moritz. It is accompanied by an article with the heading: "Prince Rainier - not
alone at home" ("Fiirst Rainier - Nicht allein zu Haus"). The article reads as follows:
"The first magnolia buds are flowering in the grounds of Monaco Palace - but Prince Rainier
(78) appears to have no interest in the burgeoning spring. He goes for a walk outside with his
daughter Stephanie (37). She supports him as he walks along slowly. He is cold despite the
sunshine. The old gentleman is weary. The Monacans saw their prince for the last time three
weeks ago at a circus festival. He had appeared bright and cheerful, walking along beside his
daughter who was laughing. But since then he has not left the palace. Not even for the Saint
Devote celebration held in honour of the national patron saint. The country is worried, as are
Prince Rainier's children. Prince Albert (who is currently taking part in the Olympic Games in
Salt Lake City), Princess Caroline (on holiday in St. Moritz with Prince Ernst August von Hannover)
and Princess St6phanie take it in turns to look after their father. He must not be left alone at home
when he is not well. Not without his children's love."
A photo of Prince Rainier with his daughter Princess St6phanie and a photo of Prince Albert of Monaco taken
during the Olympic Games in Salt Lake City appeared on the same page.
(b) The second photo
18. The second photo, which appeared in issue no. 9/03 of 20 February 2003, shows the applicants out for a
walk in St. Moritz. The caption says: "Ernst August von Hannover and his wife, Princess Caroline of Monaco,
enjoy the sun and snow in St. Moritz." A small photo of Prince Albert and two photos of members of a European
royal family appeared on the same page. The article accompanying the photos, bearing the heading "Royal fun
in the snow", is about how happy the persons photographed are to meet up in St. Moritz.
 INTERNATIONAL LEGAL MATERIALS [VOL. S|:

(c) The third photo

19. The third photo, which appeared in issue no. 12/04 of 11 March 2004, shows the applicants in a chair lift
in Ziirs am Arlberg during their skiing holiday. On the same page there is a small photo of Prince Rainier, the
first applicant and Prince Albert, taken during the national holiday on 19 November and bearing the heading "The
princess's last appearance". Another photo, taking up half the page, shows the first applicant at the Rose Ball.
The three photos illustrate an article bearing the heading "Princess Caroline. The whole of Monaco awaits
her", of which the passages relevant to the present case read as follows:
"Tickets for the Rose Ball, which will be held on 20 March in Monaco, have been selling for
weeks. And the guests will be coming only for her: Princess Caroline von Hannover (47). She
has not attended any official engagements since the national holiday ... She was not at the circus
festival or the Sainte Devote celebration held in honour of the patron saint of Monaco. By tradition,
the eldest daughter of Prince Rainier (80) opens the annual ball. She has inherited this role from
her mother, who died in an accident, and this ball is Caroline's favourite... The prince, who is
seriously ill, has just come out of hospital after a heart operation and is still too weak to attend
the ball. The welcome speech which he will be making in honour of the guests will be retransmitted
via television cameras and projected onto a big screen. Princess Caroline and her husband Ernst
August von Hannover will open the Rose Ball with a waltz.
They celebrated their fifth wedding anniversary together in January. And there was another
subject for celebration in the von Hannover household: the prince turned 50 on 26 February. He
celebrated his birthday with Caroline and some friends at the fashionable resort of St. Moritz,
glistening white in the snow. The couple were actually spending their holiday in Zirs am Arlberg,
but for the birthday party they went down to the Palace Hotel in St. Moritz for a few days."
2. The photo published in the magazine Frau Aktuell
20. The publishing company WZV Westdeutsche Zeitschriftenverlag GmbH & Co. KG published in issue no.
9/02 of 20 February 2002 of the magazine Frau Aktuell the same photo (or a virtually identical one) as the one
that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above). The article
accompanying the photo in FrauAktuell bears the heading: "That is genuine love. Princess St6phanie. She is the
only one who looks after the sick prince." The relevant passages of the article are worded as follows:
"Her love life may appear unbridled. One thing is certain, though: where her father is concerned
Princess St6phanie knows where her heart lies. While the rest of the family are travelling around
the world, she has run to be at the side of Prince Rainier (78), who appears to be seriously ailing.
She is the only one who takes care of the sick monarch. Stephanie's sister, Caroline (45), has
taken a few days' holiday with her husband Ernst August (48) and their daughter Alexandra (2)
at the fashionable St. Moritz ski resort in Switzerland. Prince Albert, for his part, has been at the
Olympic Games in Salt Lake City taking part in the four-man bobsleigh race. 'For the fifth and
last time," he said. From time to time he would disappear for a number of days. It is said that
the Prince of Monaco has seen his heart-throb, Alicia Warlick (24), an American pole vaulter who
is rumoured to become his future wife. The prince [Rainier], who hates staying alone now, was
very glad to see his younger daughter. St6phanie has devoted a lot of time to the prince. She has
been out on long walks with him and they have greatly confided in each other. 'Rainier has relished
the company of his younger daughter. When she is at his side he truly flourishes. During those
moments he forgets that he is old and sick," say the Monacans. 'Stephanie should come much
more often'."
On the same page there is the photo of Princess St6phanie with her father that had appeared the same day in
the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above), a headshot of her and two other photos, one of
Prince Albert alone and the other of the prince with Alicia Warlick.
2012] VON HANNOVER V. GERMANY (No. 2) (EUR. CT. H.R.)

C. The proceedings at issue

1. The proceedings instituted by the first applicant
(a) The first set of proceedings
(i) Judgment of the Regional Court of 29 April 2005
21. On an unspecified date in 2004 the first applicant sought an injunction in the Hamburg Regional Court
against any further publication of the three photos by the Ehrlich & Sohn publishing company.
22. In a judgment of 29 April 2005 the Regional Court granted the injunction on the ground that the first
applicant had not consented to publication of the photos, which was a precondition under section 22 of the Copyright
(Arts Domain) Act (hereafter "the Copyright Act" - see paragraph 70 below). The court stated, however, that
even if consent were deemed unnecessary in the case of the first photo on the ground that it was an image from
contemporary society (Bildnis aus dem Bereich der Zeitgeschichte) within the meaning of 23(1)(1) of the same
Act, publication of the photo was not justified. Under sub-section 2 of that provision, publication of such an image
was only lawful if it did not interfere with a legitimate interest of the person photographed. According to the
court, the question as to whether there was such a legitimate interest had to be determined by balancing the interests
of the person photographed against those of the public in being informed.
23. The Regional Court found that in the present case it was the first applicant's right to the protection of her
personality rights that prevailed. In reaching that conclusion the Regional Court referred extensively to the Court's
judgment in the case of Von Hannover. It found that the first applicant's relationship with her father, regardless
of the fact that he was ill, did not contribute to a debate of general interest to society especially as the first applicant
was connected to the prince of a State of minor importance in international politics merely through a family tie
and did not exercise any official function.
24. The Regional Court stated that whilst that reasoning was not entirely in keeping with the principles established
by the Federal Constitutional Court, which did not recognise a legitimate interest unless the person photographed
had retired to a secluded place away from the public eye, it was not bound by that precedent to the extent that it
could not take into consideration the Court's case-law on the subject.
(ii) Judgment of the Court of Appeal of 31 January 2006
25. The publishing company appealed against that judgment.
26. In a judgment of 31 January 2006 the Hamburg Court of Appeal set aside the judgment on the ground that
the applicant's right under Article 8 of the Convention had to yield to the fundamental rights of the press. It found
that whilst the articles were primarily of entertainment value, publication of the photos was nonetheless lawful in
terms of the judgment of the Federal Constitutional Court of 15 December 1999 whose main legal reasoning
(tragende Erwigungen) was binding on the Court of Appeal. It pointed out that public figures should certainly
be protected from the risk of being photographed at any time and anywhere and seeing the photos subsequently
published. However, in the Court of Appeal's opinion, the legitimate interest of such figures, within the meaning
of section 23(2) of the Copyright Act, should not result in the prohibition of any reporting on well-known people
outside their official appearances. In any event, the right to respect for private life did not require the banning of
publication of photos taken in public places accessible to all and where the individual concerned was amongst
many other people.
(iii) Judgment of the Federal Court of Justice of 6 March 2007

27. The first applicant appealed on points of law against that judgment.
28. In a judgment of 6 March 2007 (no. VI ZR 51/06) the Federal Court of Justice dismissed her appeal in
respect of the first photo. With regard to the second and third photos, it upheld her appeal, quashed the judgment
of the Court of Appeal and reinstated the injunction imposed by the Regional Court.
29. The Federal Court of Justice found that the opinion of the Court of Appeal did not correspond to the
concept of graduated protection (abgestuftes Schutzkonzept) that had been developed in the case-law on the basis
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

of sections 22 and 23 of the Copyright Act and which it had clarified in a number of recent decisions delivered
following the Von Hannover judgment and in response to the reservations of principle which the Court had
expressed in that judgment. According to that new concept of protection, section 23(1) of the Copyright Act,
which provided for an exception to the rule according to which a photo could not be published without the prior
consent of the person concerned, took account of the public's interest in being informed and of the freedom of
the press. Accordingly, when assessing whether or not the impugned publication portrayed an aspect of contemporary
society, within the meaning of section 23(1)(1) of the Copyright Act, a balancing exercise had to be undertaken
between the rights under Articles 1 1 and 2 1 of the Basic Law and Article 8 of the Convention on the one
hand and those under Article 5 1, second sentence, of the Basic Law and Article 10 of the Convention on the
other hand.
30. The Federal Court of Justice added that the Court's criticism of the expression "figure of contemporary
society par excellence" ultimately concerned the determination of the conditions in which the media could report
on well-known people such as these. It considered that, irrespective of the issue whether the first applicant should
be regarded as a figure of contemporary society par excellence, she was in any case a well-known person who
particularly attracted public attention. In the court's view, that fact, combined with the fact that she had not been
in a secluded place out of the public eye when the photos had been taken, was nonetheless insufficient to deprive
her of protection of her private sphere. That conclusion was not only appropriate in the light of the Court's ruling
but also reflected a proper understanding of the concept of protection thus developed.
31. Accordingly, the Federal Court of Justice found that the publication of images of persons who - on account
of their importance in contemporary society - were in theory required, under section 23(1)(1) of the Copyright
Act, to tolerate the publication of photos of themselves was nevertheless unlawful if the legitimate interests of
the person concerned were infringed (section 23(2)). There could be no exception to the obligation to obtain the
consent of the person in question unless the report in question concerned an important event of contemporary
society. The expression "contemporary society" - and indeed the term "information value" - had to be interpreted
in a broad sense and according to whether there was a public interest. It comprised any matter of general interest
to society and included reports for entertainment purposes, which could also play a role in the formation of
opinions, or even stimulate or influence these to a greater degree than purely factual information.
32. Whilst the freedom of the press and the prohibition of censorship required the press to be able to decide
for itself which subjects it intended to report on and what it intended to publish, the press was not exempt from
the duty to weigh its interest in publishing the information against the protection of the privacy of the person
concerned. The greater the information value for the general public, the more the right to protection had to yield.
Conversely, where the interest in informing the public decreased the importance of protecting the person concerned
carried correspondingly greater weight. The reader's interest in being entertained generally carried less weight
than that of protecting privacy, in which case the reader's interest did not merit protection.
33. The Federal Court of Justice stated that, accordingly, even where persons who had hitherto been regarded
as figures of contemporary society were concerned, consideration must be given to the question whether the report
contributed to a factual debate (mit Sachgehalt) and whether the content went beyond a mere intention to satisfy
public curiosity. In determining that question, there was nothing to prevent regard being had to how well the
person concerned was known to the public.
34. The Federal Court of Justice stressed that that manner of balancing the various interests at stake corresponded
to the requirements of the Court regarding effective protection of the private sphere and the requirements of the
freedom of the press, and that it did not conflict with the binding force of the judgment of the Federal Constitutional
Court of 15 December 1999. Admittedly, that court had limited the protection afforded to the private sphere against
the publication of unwanted photos to cases of spatial seclusion. That did not, however, prevent the courts - when
balancing the various interests - from having more regard to the value of the information for the public. Furthermore,
the Federal Constitutional Court had [recently] endorsed the balancing exercise undertaken by the Federal Court
of Justice according to those criteria in a judgment concerning the second applicant (decision of 13 June 2006,
no. 1 BvR 565/06).
35. The Federal Court of Justice specified that as the determining criterion for the balancing exercise was the
information value of the photo in question and as it had been published in the context of a written article, the
20121 VON HANNOVER V. GERMANY (No. 2) (EuR. CT. H.R.)

content of the text accompanying the photo could not be ignored.

36. Applying the criteria thus established to the case submitted to it, the Federal Court of Justice, beginning
with the second and third photos, observed that the second photo showed the applicants in a busy street in St.
Moritz during their skiing holiday. Whilst the press could, as a matter of principle, make its own decision regarding
the content of its publications and the applicants had indeed been in a public place amongst other people, neither
the article nor the photo related to an event of general interest or contemporary society. A celebrity's holidays
fell within the core area (Kernbereich) of his or her private sphere. The publication of the article and photo had
been for entertainment purposes only and was not in any way relevant to matters of public interest, so could only
be done with the first applicant's consent.
.37. The Federal Court of Justice noted that the third photo showed the applicants in a chair lift in Zurs during
their skiing holiday. Whilst the Rose Ball shortly to be held in Monaco, which was the subject of the article
accompanying the photo, could possibly be regarded as an event of contemporary society that was a matter of
general interest to society, there was no link between the photo and that event. The purpose of the photo had been
to supplement the part of the article about the second applicant's birthday party in St. Moritz and the applicants'
skiing holiday in Ziirs. Thus the information centred exclusively on the first applicant's private life and served
merely entertainment purposes. Accordingly, the third photo could not be published without the first applicant's
consent either.
38. Regarding the first photo, the Federal Court of Justice observed that whilst it contained no information
having any connection with an event of contemporary society or contributing to a debate of general interest, the
same was not true of the accompanying text. Admittedly, the part about the first applicant's skiing holiday did
not concern an event of contemporary society or general interest, even interpreting those terms broadly. However,
with regard to the prince's health, the Federal Court of Justice found as follows:
"The information also concerned the ill-health of the reigning Prince of Monaco. His ill-health
was thus an event of contemporary society on which the press was entitled to report. The journalistic
quality and the conception of the article are not decisive because the principle of the freedom of
the press does not allow the applicability of a fundamental right to depend upon the quality of
the press coverage or how the article is drafted. This also applies to the comments in the article
on the conduct of members of the family during the prince's illness, and, moreover, the applicant
has not complained about the article in that respect. The photo in question supports and illustrates
the information being conveyed."
39. The Federal Court of Justice concluded that, in those circumstances and having regard to the context of
the report as a whole, the first applicant had no legitimate interest that could have opposed publication of the
photo of the applicants out in the street. There had, in particular, been nothing about the photo itself that constituted
a violation (eigenstdndigerVerletzungseffekt) and thus justified a different conclusion; nor was there anything to
suggest that the photo had been taken surreptitiously or by using secret technical devices that rendered its publication
unlawful.
(iv) Judgment of the Federal Constitutional Court of 26 February 2008
40. In a judgment of 26 February 2008 the First Division (Senat) of the Federal Constitutional Court dismissed
constitutional appeals lodged by the first applicant (no. 1 BvR 1626/07) and by the Ehrlich & Sohn GmbH & Co.
KG publishing company (no. 1 BvR 1602/07) against the judgment of the Federal Court of Justice (no. VI ZR
51/06).
In the same judgment it allowed a constitutional appeal (no. 1 BvR 1606/07) lodged by the Klambt-Verlag
GmbH & Co. publishing company against an injunction, imposed by the Federal Court of Justice (judgment of 6
March 2007, no. VI ZR 52/06), on any further publication of a photo that had appeared in 7 Tage magazine
showing the applicants on holiday in an unspecified location and accompanying a written and photographic report
on the possibility of renting a holiday villa owned by the von Hannover family in Kenya. Those proceedings are
the subject of a separate application by the first applicant to the Court (no. 8772/10).
41. The Federal Constitutional Court observed, firstly, that the court decisions constituted an interference with
the first applicant's right to the protection of her personality rights guaranteed by Articles 1 1 and 2 1 of the
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

Basic Law. There were limits on the protection afforded to that right and on the freedom of the press, however.
The freedom of the press was subject to the restrictions laid down in section 22(1) of the Copyright Act and
Article 8 of the Convention, whilst the provisions of the Copyright Act and Article 10 of the Convention limited
the right to the protection of personality rights. In the German legal order the Convention had the status of an
ordinary federal Law. At constitutional-law level, the rights and freedoms guaranteed by the Convention and the
Court's case-law served as guides to interpretation when determining the content and scope of a fundamental right.
42. The Federal Constitutional Court reiterated the case-law of the Court regarding Articles 8 and 10 of the
Convention and its own case-law on the different fundamental rights at stake by referring to the principles established
in its leading judgment of 15 December 1999 (Von Hannover, cited above, 25). It added that in so far as an
image did not itself make any contribution to the formation of public opinion, its information value had to be
assessed in the context of the accompanying article. However, if that article was merely a pretext for publishing
a photo of a well-known person, no contribution was made to the formation of public opinion and there were
therefore no grounds for allowing the interest in publication to prevail over the protection of personality rights.
43. The Federal Constitutional Court went on to say that, in order to determine the weight to be attached to
the protection of personality rights, regard had to be had not only to the circumstances in which the photo had
been taken, for example whether it had been taken surreptitiously or as a result of persistent hounding by
photographers, but also to the situation in which the person concerned had been photographed and how he or she
was portrayed. The right to protection of personality rights thus carried more weight where the photo showed
details of the person's private life that were not normally the subject of public discussion. The same was true
where the person concerned could legitimately expect, having regard to the circumstances, that no photo would
be published because he or she was in a private place (rdumliche Privatheit), such as in a specially protected
location. The right to protection of personality rights could also prevail over the interest in publication in cases
other than those of spatial isolation, notably where the person concerned was pictured enjoying a moment of
relaxation or letting go, freed from the constraints of professional or everyday life.
44. The Federal Constitutional Court stated that importance had to be attached in that connection to the allocation
of procedural obligations regarding the presentation of the facts and the burden of proof. It had to be ensured that
neither the press nor the person being photographed was prevented from adducing proof of circumstances relevant
for the balancing of the competing interests. Where the press intended to publish a photo without the consent of
the person concerned, it could be required to substantiate the circumstances in which the photo had been taken
in order to allow the courts to examine the question whether publication of the photo could be opposed on grounds
of the legitimate expectations of the person photographed.
45. The Federal Constitutional Court observed that it was the task of the civil courts to apply and interpret the
provisions of civil law in the light of the fundamental rights at stake while having regard to the Convention. It
added that its own role was limited to examining whether the lower courts had had sufficient regard to the impact
of fundamental rights when interpreting and applying the law and when balancing the competing rights. Such was
also the scope of the scrutiny of the Constitutional Court regarding the question whether the courts had fulfilled
their obligation to incorporate the Court's relevant case-law into the national legal order (Teilrechtsordnung).The
fact that the court's balancing exercise of the various rights in multi-polar disputes - that is, disputes involving
the interests of several different persons - and complex ones could also result in a different outcome was not
sufficient reason for requiring the Federal Constitutional Court to correct a court decision. However, there would
be a violation of the Constitution if the protective scope (Schutzbereich) or extent of a fundamental right had been
wrongly determined and the balancing exercise were accordingly flawed, or if the requirements under constitutional
law or the Convention had not been duly taken into account.

46. Applying those principles to the case submitted to it, the Federal Constitutional Court observed that the
Federal Court of Justice and the criteria it had established were constitutionally unobjectionable. It considered in
particular that nothing, from a constitutional-law perspective, had prevented the Federal Court of Justice from
departing from its own established case-law in the field and developing a new concept of protection. The fact that
it had not itself called into question, in its leading judgment of 15 December 1999, the former concept of protection
established by the Federal Court of Justice merely meant that this had been in conformity with constitutional-law
criteria. It did not mean, by extension, that a different concept could not meet those criteria. The Federal Court
of Justice had not been prevented, in particular, from dispensing with the legal concept of "figure of contemporary
2012] VON HANNOVER V. GERMANY (No. 2) (EUR. CT. H.R.)

society" and instead balancing the competing interests when examining the question whether a photo was an
aspect of contemporary society and could accordingly be published without the consent of the person concerned
(unless it interfered with a legitimate interest of the latter).
47. Applying the criteria thus established to the photos in question, starting with the second and third ones on
which an injunction had been imposed by the courts and then challenged by the publishing company Ehrlich &
Sohn (see paragraph 40 above), the Federal Constitutional Court noted that the Federal Court of Justice had had
regard to the fact that the second photo showed the applicant in a public place which was neither isolated nor out
of public view. It had attached decisive weight, however, to the fact that the article concerned only the applicant's
skiing holiday, that is, a situation falling within the core area of private life and concerning the applicant's need
for peace and quiet, and the consequent lack of public interest other than satisfying public curiosity. Contrary to
the submissions of the publishing company, the reader's interest in the applicant's fashionable ski suit did not
amount to a public interest. Moreover, that aspect had not been mentioned anywhere in the article.
48. In the opinion of the Federal Constitutional Court, the same conclusion had to be drawn with regard to the
third photo whose publication had been challenged by the first applicant. There had been no public interest, beyond
merely satisfying public curiosity, in the information contained in either the article commenting on the first applicant
and her husband's trip to St. Moritz to celebrate the latter's birthday or the photo showing them both in a chair
lift. Whilst the article had also mentioned the Rose Ball - an event which, according to the Federal Court of
Justice, could possibly be regarded as an aspect of contemporary society - no link had been made between that
event and the photo.
49. With regard to the first photo, the Federal Constitutional Court found that the Federal Court of Justice had
had valid grounds for considering that the reigning prince of Monaco's ill-health was a matter of general interest
and that the press had accordingly been entitled to report on the manner in which the prince's children reconciled
their obligations of family solidarity with the legitimate needs of their private life, among which was the desire
to go on holiday. The conclusion reached by the Federal Court of Justice, according to which the photo that
had been published had a sufficiently close link with the event described in the article, was constitutionally
unobjectionable.
50. The Federal Constitutional Court pointed out that the Federal Court of Justice had indicated that the
protection of personality rights could prevail in cases where the photo in question had been taken in conditions
that were particularly unfavourable for the person concerned, for example where it had been taken surreptitiously
or following continual harassment by photographers. However, the publishing company had given details about
how the photo had been taken and the first applicant had not complained before the lower civil courts or the
Federal Court of Justice that those details were insufficient. In particular, she had not alleged that the photo had
been taken in conditions that were unfavourable to her.
51. The Federal Constitutional Court also dismissed the first applicant's allegation that the Federal Court of
Justice had disregarded or taken insufficient account of the Court's case-law. Pointing out that a complaint of that
nature could be raised in constitutional proceedings if it was based on a fundamental right guaranteed by the Basic
Law, it observed that the Federal Court of Justice had taken account of the judgments delivered in the cases of
Von Hannover, cited above, and Karhuvaaraand Iltalehti (no. 53678/00, ECHR 2004-X) and had not failed to
comply with its obligation to satisfy the criteria established by the Convention. The Federal Constitutional Court
had undertaken an analysis of the Court's relevant case-law and observed that the Court's decisive criterion when
balancing the competing rights was the question whether the report in its entirety (article and photo) contributed
to the free formation of public opinion. Furthermore, a distinction had to be drawn between political figures, public
figures and ordinary individuals. Whilst the latter enjoyed the greatest protection of the three groups, political
figures could expect only a small degree of protection from media reports about themselves.
52. According to the Court's case-law (Gurgenidze v. Georgia, no. 71678/01, 57, 17 October 2006, and
Sciacca v. Italy, no. 50774/99, 27, ECHR 2005-I), the first applicant was a public figure, which allowed the
press - where there was an interest in informing the public - to publish photos, even of the person going about
his or her daily business in public. Publication of that sort, which, moreover, attracted the protection of Article
10 of the Convention, could serve to exercise public scrutiny over the private conduct of persons who were
influential in the economic, cultural or media sectors. The Federal Constitutional Court pointed out that the Court
 INTERNATIONAL LEGAL MATERIALS [VOL ,51:

had previously criticised the approach taken by domestic courts which had applied over-restrictive criteria to the
question whether the media were or were not reporting matters of public interest when they reported on circumstances
relating to the private life of a person who was not part of political life (Tonsbergs Blad A.S. and Haukom v.
Norway, no. 510/04, 87, ECHR 2007-III). It was sufficient that the report concerned, at least to some degree,
important matters relating to politics or another sphere (Karhuvaaraand Iltalehti v. Finland, cited above, 45).
53. The Federal Constitutional Court concluded that the Federal Court of Justice had found in the present case
that the report in question concerned important subjects in a democratic society. In its Von Hannover judgment,
cited above, the Court had not categorically excluded the possibility that a report contributing to a debate about
questions of interest to the public could be illustrated by photos showing a scene from the daily life of a political
or public figure. Even though the Court had concluded in Von Hannover, cited above, that the photos in question
had not been of information value, the decision reached by the Federal Court of Justice - after assessing the
circumstances of the case submitted to it and having regard to the Court's case-law - that the photo in question
was of information value was constitutionally unobjectionable.
(b) The second set of proceedings
54. On an unspecified date the first applicant sought an injunction in the Hamburg Regional Court against any
further publication of the photo that had appeared in the magazine FrauAktuell, issue no. 9/02 of 20 February 2002.
55. In a judgement of 1 July 2005 the Regional Court granted the applicant's request.
56. In a judgment of 13 December 2005 the Hamburg Court of Appeal allowed an appeal lodged by the
publishing company and set aside the Regional Court's judgment.
57. In a judgment of 6 March 2007 (no. VI ZR 14/06) the Federal Court of Justice dismissed an appeal by the
first applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 51/06 - see
paragraphs 28-39 above). It stated that the first applicant had not argued before it - and nor was there anything
to suggest - that the photo had been taken surreptitiously or with equivalent secret technical devices such as to
render its publication unlawful.
58. In a decision of 16 June 2008 (no. 1 BvR 1625/07) a three-judge panel of the Federal Constitutional Court
declined, without giving reasons, to entertain a constitutional appeal lodged by the first applicant.
2. The proceedings brought by the second applicant
(a) The first set of proceedings
59. On 30 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against
any further publication by the Ehrlich & Sohn GmbH & Co. KG publishing company of the three photos that had
appeared in the magazine Frau im Spiegel.
60. In a judgment of 1 July 2005 the Regional Court granted the injunction.
61. In a judgment of 31 January 2006 the Hamburg Court of Appeal allowed an appeal by the publishing
company.
62. In a judgment of 6 March 2007 (no.VI ZR 50/06) the Federal Court of Justice dismissed an appeal on
points of law by the second applicant in respect of the first photo. With regard to the second and third photos, it
allowed the appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the
Regional Court. It based its conclusions on the same grounds as those set out in its judgment no. VI ZR 51/06
of the same day (see paragraphs 28-39 above). With regard to the second applicant's high profile, it upheld the
opinion of the Court of Appeal that he was well known to the public, in particular as the husband of the first
applicant who was especially the subject of public attention.
63. In a decision of 16 June 2008 (no.1 BvR 1624/07) a three-judge panel of the Federal Constitutional Court
declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant.
20121 VON HANNOVER v. GERMANY (No. 2) (EUR. Cr. H.R.)

(b) The second set of proceedings

64. On 29 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against
any further publication by the WZV Westdeutsche Zeitschriftenverlag GmbH & Co KG publishing company of
the photo that had appeared in the magazine Frau Aktuell.
65. In a judgment of 24 June 2005 the Regional Court granted the injunction.
66. In a judgment of 13 December 2005 the Hamburg Court of Appeal allowed an appeal by the publishing
company.
67. In a judgment of 6 March 2007 (no. VI ZR 13/06) the Federal Court of Justice dismissed an appeal on
points of law lodged by the second applicant on the same grounds as those set out in its judgment of the same
date (no. VI ZR 14/06 - see paragraph 57 above).
68. In a decision of 16 June 2008 (no. 1 BvR 1622/07) a three-judge panel of the Federal Constitutional Court
declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant.
II. RELEVANT DOMESTIC AND EUROPEAN LAW
A. The Basic Law
69. The relevant provisions of the Basic Law provide as follows:
Article 1 1
"The dignity of human beings is inviolable. All public authorities have a duty to respect and protect it."
Article 2 1
"Everyone shall have the right to the free development of their personality provided that they do not
interfere with the rights of others or violate the constitutional order or moral law [Sittengesetz]."
Article 5 1 and 2
"1. Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing
and pictures and freely to obtain information from generally accessible sources. Freedom of the press and
freedom of reporting via the radio, television and cinema shall be guaranteed. There shall be no censorship.
These rights shall be subject to the limitations laid down by the provisions of the general laws and to
statutory provisions for the protection of young people and to the obligation to respect personal honour
[Recht der personlichen Ehre]."
B. The Copyright (Arts Domain) Act
70. Section 22(1) of the Copyright (Arts Domain) Act (Gesetz betreffend das Urheberrecht an Werken der
bildenden Kiinste und der Photographie)provides that images can only be disseminated with the express consent
of the person concerned. Section 23(l)(1) of the Act provides for exceptions to that rule, where the images portray
an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) on condition that publication
does not interfere with a legitimate interest (berechtigtes Interesse) of the person concerned (section 23(2)).
C. Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right
to privacy
71. The relevant passages of this resolution, adopted by the Parliamentary Assembly of the Council of Europe
on 26 June 1998, read as follows:
"1. The Assembly recalls the current affairs debate it held on the right to privacy during its
September 1997 session, a few weeks after the accident which cost the Princess of Wales her life.
2. On that occasion, some people called for the protection of privacy, and in particular that of
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

public figures, to be reinforced at the European level by means of a convention, while others
believed that privacy was sufficiently protected by national legislation and the European Convention
on Human Rights, and that freedom of expression should not be jeopardised.
3. In order to explore the matter further, the Committee on Legal Affairs and Human Rights
organised a hearing in Paris on 16 December 1997 with the participation of public figures or their
representatives and the media.
4. The right to privacy, guaranteed by Article 8 of the European Convention on Human Rights,
has already been defined by the Assembly in the declaration on mass communication media and
human rights, contained within Resolution 428 (1970), as 'the right to live one's own life with a
minimum of interference'.
5. In view of the new communication technologies which make it possible to store and use
personal data, the right to control one's own data should be added to this definition.
6. The Assembly is aware that personal privacy is often invaded, even in countries with specific
legislation to protect it, as people's private lives have become a highly lucrative commodity for
certain sectors of the media. The victims are essentially public figures, since details of their private
lives serve as a stimulus to sales. At the same time, public figures must recognise that the special
position they occupy in society - in many cases by choice - automatically entails increased pressure
on their privacy.
7. Public figures are persons holding public office and/or using public resources and, more
broadly speaking, all those who play a role in public life, whether in politics, the economy, the
arts, the social sphere, sport or in any other domain.
8. It is often in the name of a one-sided interpretation of the right to freedom of expression,
which is guaranteed in Article 10 of the European Convention on Human Rights, that the media
invade people's privacy, claiming that their readers are entitled to know everything about public
figures.
9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed
be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to
be informed of those facts.
10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights,
both of which are guaranteed by the European Convention on Human Rights: the right to respect
for one's private life and the right to freedom of expression.
11. The Assembly reaffirms the importance of every person's right to privacy, and of the right
to freedom of expression, as fundamental to a democratic society. These rights are neither absolute
nor in any hierarchical order, since they are of equal value.
12. However, the Assembly points out that the right to privacy afforded by Article 8 of the
European Convention on Human Rights should not only protect an individual against interference
by public authorities, but also against interference by private persons or institutions, including the
mass media.
13. The Assembly believes that, since all member states have now ratified the European Conven-
tion on Human Rights, and since many systems of national legislation comprise provisions guaran-
teeing this protection, there is no need to propose that a new convention guaranteeing the right
to privacy should be adopted.

D. Resolution of the Committee of Ministers on the execution of the Von Hannover judgment
(no. 59320/00) of 24 June 2004
72. The Resolution of the Committee of Ministers (CM/ResDH(2007)124), including the appendix (extracts),
adopted on 31 October 2007 at the 1007th meeting of the Ministers' Deputies, is worded as follows:
20121 VON HANNOVER V. GERMANY (No. 2) (EUR. CT. H.R.)

"The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention
for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee
supervises the execution of final judgments of the European Court of Human Rights (hereinafter
"the Convention" and "the Court");
Having regard to the judgments transmitted by the Court to the Committee once they had
become final;
Recalling that the violation of the Convention found by the Court in this case concerns a breach
of the right to respect for private life of the applicant, Princess Caroline von Hannover, the eldest
daughter of Prince Rainier III of Monaco, on account of the German courts' refusal of her requests
to prohibit publication of a series of photographs of her (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures
taken to comply with Germany's obligation under Article 46, paragraph 1, of the Convention to
abide by the judgment;
Having examined the information provided by the government in accordance with the Commit-
tee's Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the
just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just
satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to
achieve as far as possible restitutio in integrum; and
- general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that
it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2007)124
Information about the measures to comply with the judgment in the case of

I. Payment of just satisfaction and individual measures

b) Individual measures
Although it is possible under German law, the applicant did not take action to prevent further publication of
the photographs in question after the European Court's judgment, but took action against a similar photograph
(see under "General Measures", No. 4) below. According to information available to the Secretariat, the photographs
at issue in the European Court's judgment have not been reprinted by the German press.

II. General measures

- Publication and dissemination of the judgment of the European Court: The judgment has been
widely published and discussed by the German legal community. As is the case with all judgments
of the European Court against Germany it is publicly available via the website of the Federal
Ministry of Justice (www.bmj.de, Themen: Menschenrechte, EGMR) which provides a direct link
to the Court's website for judgments in German (www.coe.intlT/D/Menschenrechtsgerichtshof/
 INTERNATIONAL LEGAL MATERIALS [VOL. S1:

Dokumente-aufDeutsch/). Furthermore, the judgment was disseminated by letter of the Govern-

ment Agent to the courts and justice authorities concerned.
- Change of domestic case law: When deciding upon similar cases, domestic courts have taken
into account the judgment of the European Court, thus giving it direct effect in German law:
1) the partner of a famous singer successfully sued at the Berlin Court of Appeal (KG Urt. v.
29.10.2004, 9 W 128/04, Neue Juristische Wochenschrift, NJW, 2005, p. 605- 607).
2) The Convention's principles as set out in the European Court's judgments were also acknowl-
edged, even though they were not directly relevant to the case, in a judgment of the Hamburg
District Court forbidding commercial exploitation of the popularity of former Chancellor Schroder
(AG Hamburg, Urt. v. 2.11.2004, 36A C 184/04, NJW-RR 2005, p. 196 - 198).
3) On the basis of the judgment of the European Court, the German Federal Civil Court upheld
a judgment allowing the publication of an article about fining the applicant's husband for speeding
on a French motorway. The Court stated that the public had a justified interest in this information
as it constitutes an offence, making this behaviour the topic of a public discussion (BGH, Urt. v.
15.11.2005, VI ZR 286/04, available via www.bundesgerichtshof.de).
4) Concerning the applicant herself, in July 2005, the regional court of Hamburg (Landgericht),
referring to the judgment of the European Court, decided in favour of the applicant, prohibiting
the publication of a photograph showing her together with her husband in a St. Moritz street during
a skiing holiday. However, in December 2005, the 2nd instance (Appeal Court of Hamburg,
Oberlandesgericht)reversed this decision, basing its judgment rather on the case-law of the German
Federal Constitutional Court (Bundesverfassungsgericht).Upon revision to the Federal Civil Court
(Bundesgerichtshoj) sought by the applicant, the Federal Civil Court on 6 March 2007 decided
that the photograph in question may be published. In its reasoning the domestic court, balancing
the different interests at stake, explicitly took into account the Convention's requirements as
set out in the European Court's judgment (BGH, Urt. v. 6.3.2007, VI ZR 14/06 available via
www.bundesgerichtshof.de) .... "
THE LAW
I. DISJOINDER OF THE APPLICATIONS
73. The Court notes that before relinquishing jurisdiction in favour of the Grand Chamber the Chamber had
joined the present applications to another application, Axel SpringerAG v. Germany (no. 39954/08 - see paragraph
3 above). Having regard, however, to the nature of the facts and the substantive issues raised in these cases, the
Grand Chamber considers it appropriate to disjoin application no. 39954/08 from the present applications.
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
I1.
74. The applicants complained of the refusal by the German courts to grant an injunction against any further
publication of the photo that had appeared on 20 February 2002 in the magazines Frau im Spiegel, issue no. 9/
02, and Frau aktuell, issue no. 9/02. They alleged that there had been a violation of their right to respect for their
private life, as guaranteed by Article 8 of the Convention, the relevant parts of which read as follows:
"1. Everyone has the right to respect for his private and family life ...
2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests of
...the protection of the rights and freedoms of others."
A. Admissibility
75. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 3
a) of the Convention. It notes further that no other ground for declaring it inadmissible has been established and
that it must therefore be declared admissible.
2012] VON HANNOVER V. GERMANY (No. 2) (EuR. CT. H.R.)

B. Merits
1. The parties' submissions
(a) The Government
76. The Government pointed out at the outset that there was no conflict between the Federal Constitutional
Court and the Court. They observed that in its judgment of 14 October 2004 (Gorgiiliijudgment - no. 2 BvR
1481/04, Reports of Judgments and Decisions of the Federal Constitutional Court no. 111, p. 307), the Federal
Constitutional Court had stated that there were grounds for lodging a constitutional appeal before it where the
domestic court had failed to take sufficient account of the Convention or of the Court's case-law. They pointed
out that in the present cases the Federal Court of Justice and the Federal Constitutional Court had taken the Court's
case-law into consideration, particularly the Von Hannover judgment. It could not therefore be alleged that there
was an attitude of denial on the part of the German courts; on the contrary, they had granted far greater protection
to personality rights than had been the case in the past.
77. The Government pointed out that the present applications related in essence to only one photo. In their
submission, whilst it was true that the photos published on 20 February 2002, although not identical, were apparently
part of the same series, the fact remained that from the point of view of an unbiased observer it was the same
photographic representation of the applicants, albeit in a different size and format. The Government observed that
in respect of the other photos examined in the judgment of the Federal Constitutional Court of 26 February 2008
either the Federal Court of Justice had upheld the injunction on their publication or they were the subject of a
separate application before the Court. Other photos, mentioned by the applicants in their observations, could not
be taken into consideration by the Court as the relevant domestic proceedings had not yet been concluded.
78. The Government submitted that up until the Von Hannoverjudgment the German courts had used the hard
and fast concept of "figure of contemporary society par excellence", which attracted only limited protection under
German law. Following the Von Hannover judgment, the Federal Court of Justice had abandoned that concept
and developed a new concept of (graduated) protection according to which it was henceforth necessary to show
in respect of every photo why there was an interest in publishing it. Furthermore, under the new approach adopted
by the Federal Court of Justice the balancing of competing interests consisted in determining whether the publication
contributed to a public debate. The information value of the publication was of particular importance in that
respect. In sum, the new case-law of the Federal Court of Justice, endorsed by the Federal Constitutional Court,
afforded greater weight to the protection of personality rights, as evidenced by the fact that an injunction was
imposed on publication of two of the initial three photos. Besides that, the photo in question and the articles
accompanying it could be clearly differentiated from the photos and their commentaries that had been the subject
of the Von Hannover judgment.
79. The Government contested the applicants' allegation that, according to the clear findings of the Court, the
first applicant was a private individual. The Court had in several judgments referred to her as a public figure in
order to differentiate her from a private individual (Gurgenidze, cited above, 40, 17 October 2006; Sciacca,
cited above, 27; and Reklos and Davourlis v. Greece, no.1234/05, 38, 15 January 2009). In categorising the
applicants as public figures the German courts had merely followed the Court's case-law. As a member of a
reigning dynasty, the first applicant appeared in public at official functions in the Principality. Moreover, she was
the chair of the Princess Grace Foundation, whose activities had been published by the Monegasque authorities
in the official yearbook of the Principality.
80. The Government pointed out that the applicants had not complained before the national courts about the
circumstances in which the photos had been taken, although those were factors which, as a general rule, the courts
duly took into account. In their submission, whilst the photos in question had certainly been taken without the
knowledge or consent of the relevant parties, this did not mean that they had been taken surreptitiously or in
conditions unfavourable to the applicants.
81. The Government argued that the special nature of certain cases, such as the present ones, in which the
domestic courts were required to balance the rights and interests of two or more private individuals lay in the fact
that the proceedings before the Court were in fact a continuation of the original legal action, with each party to
the domestic proceedings potentially able to apply to the Court. It was precisely for that reason that one result
 INTERNATIONAL LEGAL MATERIALS [VOL. S1:

alone of the balancing exercise of the competing interests was insufficient, and that there should be a "corridor"
of solutions within the confines of which the national courts should be allowed to give decisions in conformity
with the Convention. Failing that, the Court would have to take the decision on every case itself, which could
hardly be its role. Consequently, it should limit the scope of its scrutiny and intervene only where the domestic
courts had not taken account of certain specific circumstances when undertaking the balancing exercise or where
the result of that exercise was patently disproportionate (see, for example, Cump6ni and Maziire v. Romania [GC],
no. 33348/96, 111-120, ECHR 2004-XI). The Government argued that where the relationship between State
and citizen was concerned, a gain of freedom for the individual concerned involved only a loss of competence
for the State, whereas in the relationship between two citizens the fact of attaching more weight to the right of
one of the persons concerned restricted the right of the others, which was forbidden under Article 53 of the
Convention. The scope of the Court's scrutiny was accordingly reduced in such cases.
82. The Government highlighted the margin of appreciation enjoyed by the State in the present case. That
margin depended on the nature of the activities in question and the aim pursued by the restrictions. In its recent
case-law, the Court had moreover left the State a broad margin of appreciation in cases concerning Article 8 of
the Convention (A. v. Norway, no. 28070/06, 66, 9 April 2009, and Armoniene v. Lithuania, no. 36919/02,
38, 25 November 2008). Generally speaking, the margin enjoyed by the States was broader where there was no
European consensus. In the Government's submission, whilst there was admittedly a trend towards harmonisation
of the legal systems in Europe, differences nevertheless remained, as evidenced by the failure of the negotiations
for the adoption of a regulation of the European Union on conflict-of-law rules regarding non-contractual obligations
(Regulation EC No. 864/2007 of 11 July 2007 - Rome II Regulation). The margin of appreciation was also broad
where the national authorities had to strike a balance between competing private and public interests or Convention
rights (Dickson v. the United Kingdom [GC], no. 44362/04, 78 ECHR 2007-XIII, and Evans v. the United
Kingdom [GC], no. 6339/05, 77, ECHR 2007-1). Moreover, the case-law of the Court of Justice of the European
Union apparently took the same approach (cases of Schmidberger of 12 June 2003, C- 112/00, and Omega of 14
October 2004, C-36/02).
(b) The applicants

83. The applicants wished to stress the context of the present applications. Since the first applicant had lost
her first husband in a tragic accident in 1985 the media had realised that the story of the widow and her three
young children would sell well and provided a lucrative market. Although it was illegal under the French Civil
Code to take or publish such photos in France, the applicants had nonetheless been pursued by paparazzi who
could sell the photos in other markets, particularly in Germany. Whereas the public had never heard of the second
applicant before, he had also been pursued by paparazzi since his marriage to the first applicant and the birth of
their child. In accordance with decisions of the German civil courts, upheld by the Federal Constitutional Court
in 1999, the applicants had been able to oppose publication of such photos only where they were in a secluded
location, out of public view. The applicants had constantly been aware of being observed, pursued and hounded
and had therefore had high hopes after the adoption of the Von Hannover judgment, in which the Court had called
into question the case-law of the domestic courts. They had accordingly brought six test cases regarding photos
comparable to those that had been the subject of the Von Hannover judgment. It would appear that the German
authorities had not been ready to follow that judgment, however. This was evidenced both by the statements of
the Federal Minister of Justice and the German Chancellor at the time, according to which the Court's judgment
was not binding on the German courts because the case-law of the Federal Constitutional Court was of higher
rank than the Convention, and by the opinions expressed by the respective reporting judges in the Caroline von
Hannover cases before the Federal Constitutional Court in an interview and in a legal article published in 2004
and 2009 respectively.
84. Germany had categorically refused until now to execute the Von Hannoverjudgment, in breach of Article
46 of the Convention. Accordingly, in its Gorgiili judgment the Federal Constitutional Court had observed that
a blanket execution of the Court's judgments should be avoided. The Court of Appeal had clearly stated in the
present case that the judgment of the Federal Constitutional Court of 1999 took precedence. The Federal Court
of Justice and the Federal Constitutional Court, for their part, had circumvented the Von Hannover judgment and
continued to rely on the concept of figure of contemporary society (par excellence) that had been called into
question by the Court, by using the terms "prominent persons" or "high-profile persons", and referring - de
2012] VON HANNOVER V. GERMANY (No. 2) (EUR. CT. H.R.)

facto - to the spatial isolation factor by using the expression "moment of relaxation or letting go, freed from the
constraints of professional or everyday life". The applicants continued to be the subject of press articles on their
daily and private life and to be hounded by paparazzi, with the German courts doing nothing to put a stop to this.
As it was impossible for them to know whether they were protected from harassment by paparazzi, they complained
of an intolerable situation of legal insecurity and a considerable risk of litigation and costs resulting from that.
85. The applicants argued that none of the photos, whether considered alone or in the context of the written
article, contributed to a debate of public interest in a democratic society. They served purely to satisfy the curiosity
of a particular readership. How and where the applicants spent their holidays clearly did not concern any matter
that materially affected the public. A walk by the applicants during their holiday was not an event of contemporary
society, especially as it was not undertaken in the exercise of any official function.

86. The reference to Prince Rainier's long-term illness in the article accompanying the photos in question could
not alter that finding. The article was not about whether the Prince's illness prevented him from carrying out his
sovereign tasks. There were only a few sentences informing the reader about his illness; the article was mainly
about the private life of the applicants and other members of the Prince's family. The Prince's illness had been
merely a pretext for extensive coverage of the applicants' private life. It was already doubtful whether publication
of the photo of Prince Rainier with his daughter St6phanie could be justified, so publication of the photo complained
of in this case was clearly unjustified. Even if there was information value in the prince's illness, there was no
genuine link between the applicants' skiing holiday and that illness. A simple article would, moreover, have
sufficed to satisfy the public's interest.
87. The applicants submitted that there had been nothing unusual or reprehensible in their spending a few days
on a skiing holiday with their daughter during the prince's illness, just like other families. That information was
totally irrelevant to how the Principality of Monaco was governed. It was precisely when a family member was
suffering from a long-term illness that the relatives needed special protection during the few days that they could
relax. If a relative's poor health were sufficient grounds upon which to publish photos, the Article 8 guarantees
would be undermined and the press could permanently report on the applicants' private life. Where the photos
showed the applicants visiting the prince, the event of contemporary society would be the visit, and where they
were elsewhere the event would be their absence. The German media had fully grasped this: they could enrich
their articles with a few sentences to artificially generate information value.

88. The applicants complained of the absence of two important factors in the balancing exercise undertaken
by the German courts. They argued that the courts had failed to have regard to the fact that they had never sought
to publicise details of their private life in the media, but had always defended themselves against any illegal
publication. They thus had a legitimate expectation that their private life would be protected. Moreover, unlike
the Court, the German courts had not taken account of the fact that the applicants were being permanently observed
and hounded by paparazzi and that the photos had been taken without their knowledge or consent. Furthermore,
the first applicant had not at any time been called to the throne of the Principality of Monaco: her father had still
been alive when the photos were taken. On the latter's death, it was her brother Albert who had succeeded him
to the throne.

89. The applicants submitted that since the Von Hannoverjudgment, in which the Court had clearly established
the criteria that had to be met in cases of illegal publication of photos, the German authorities could no longer
rely on a margin of appreciation. In their submission, a European consensus had emerged following the influence
of that judgment as illustrated by the adoption of a resolution by the Parliamentary Assembly in 1998. The
differences that remained were merely in the nuances. The Von Hannoverjudgmentwas part of a line of established
case-law and had subsequently been confirmed many times. The applicants expressed surprise, moreover, that the
Court, as a supreme European court, should have less extensive powers of scrutiny than those exercised by the
Federal Constitutional Court, which, in the proceedings in respect of the photo published in the magazine 7 Tage
(paragraph 40 above), had overridden the opinion of the eleven professional judges who had examined the case
and substituted its own opinion down to the last detail.
 INTERNATIONAL LEGAL MATERIALS [VOL S1:

2. Third parties' observations

(a) Association of German magazine editors
90. The third-party association observed that the Von Hannover judgment delivered by the Court had had
considerable effects on the freedom of the press in Germany. Following that judgment, the German courts had
attached much less weight to the freedom of the press than before. Their decisions had now fallen into line with
the Court's case-law, to which they often referred moreover. The association submitted that the press, in its role
of "public watchdog", had the task not only of watching over parliaments, governance and other political events,
but also of observing public life in general whether in politics, the economy, the arts, the social sphere, sport or
any other domain. Like members of other royal families, the first applicant had a function as a role model and
was unquestionably a public figure. The third-party association pointed out that, since 2003, the first applicant
had been UNESCO goodwill ambassador, a title bestowed on famous persons such as Nelson Mandela, Claudia
Cardinale or Pierre Cardin. The Court had, moreover, described the first applicant as a public figure in judgments
delivered after the Von Hannover judgment. In the association's view, the protection of privacy had already been
quite extensive before the Von Hannoverjudgment and that protection had subsequently been further extended.
The German courts had not therefore exceeded their margin of appreciation. The standard as it existed in France
could not constitute a model for Europe.
(b) Ehrlich & Sohn GmbH & Co KG publishing company
91. The third-party publishing company reiterated the importance of the freedom of the press in Germany,
particularly having regard to the country's former National Socialist era. It observed that, in accordance with the
settled case-law of the Federal Constitutional Court, the entertainment press also enjoyed the protection of press
freedom. Moreover, as the daughter of the late sovereign prince of a European country, sister of the current
sovereign prince and wife of the head of a former German noble dynasty, the first applicant was undeniably a
public figure who attracted attention, at least in Europe. The publishing company submitted, lastly, that following
the Von Hannover judgment delivered by the Court in 2004, the German courts had departed from precedent by
restricting the possibility of publishing photographs of persons taken outside official events and without the consent
of the interested parties and had thus severely curtailed the freedom of information and of the press.
(c) Media Lawyers Association
92. The third-party association argued that Article 8 of the Convention did not create an image right or,
moreover, a right to reputation. Publication of a person's photo did not, of itself, necessarily constitute an interference
with the rights guaranteed under that provision. In determining whether there had been an interference, regard had
to be had to all the circumstances and a certain level of seriousness was required. It was vital that media reporting
upon all matters of public interest was strongly protected. In the Association's submission, whilst the Court had
rightly held, in its Von Hannoverjudgment, that regard had to be had to the context in which a photo had been
taken, it had gone too far in asserting - in error - that publication of any photo fell within the scope of Article
8. The Court had unfortunately confirmed that position in subsequent judgments. The association maintained that
the correct approach was first to examine whether the photo that had been published did or did not fall within
the private sphere. In that context consideration had to be given to whether the person concerned, having regard
to all the circumstances, had a legitimate expectation of privacy. If not, that was the end of the matter as Article
8 of the Convention did not apply. If yes, the domestic courts had to balance competing rights - of equal status -
under Articles 8 and 10 of the Convention, whilst taking account of all the circumstances of the case. The balancing
exercise and the outcome were matters that fell within the margin of appreciation of the States. The Court should
intervene only where the national authorities had failed to undertake a balancing exercise or where their decisions
were unreasonable. Lastly, the decision whether to include a photo in a written report fell within the editor's
discretion and judges could not substitute their own opinion.
(d) Joint submissions by the Media Legal Defence Initiative, International Press Institute and
World Association of Newspapers and News Publishers
93. The three third-party associations submitted that a broad trend could be observed across the Contracting
States towards the assimilation by the national courts of the principles and standards articulated by the Court
relating to the balancing of the rights under Article 8 against those under Article 10 of the Convention, even if
20121 VON HANNOVER V. GERMANY (No. 2) (EuR. CT. H.R.)

the individual weight given to a particular factor might vary from one State to another. They invited the Court to
grant a broad margin of appreciation to the Contracting States, submitting that such was the thrust of Article 53
of the Convention. They referred to the Court's judgment in the case of Chassagnouand Others v. France ([GC],
nos. 25088/94, 28331/95 and 28443/95, 113, ECHR 1999-II), submitting that the Court had indicated that it
would allow the Contracting States a wide margin of appreciation in situations of competing interests. The
Contracting States were likewise generally granted a wider margin in respect of positive obligations in relationships
between private parties or other areas in which opinions within a democratic society might reasonably differ
significantly (Frettiv. France, no. 36515/97, 41, ECHR 2002-1). The Court had, moreover, already allowed the
Contracting States a broad margin of appreciation in a case concerning a balancing exercise in respect of rights
under Articles 8 and 10 of the Convention (A. v. Norway, cited above, 66). Its role was precisely to confirm
that the Contracting States had put in place a mechanism for the determination of a fair balance and whether
particular factors taken into account by the national courts in striking such a balance were consistent with the
Convention and its case-law. It should only intervene where the domestic courts had considered irrelevant factors
to be significant or where the conclusions reached by the domestic courts were clearly arbitrary or summarily
dismissive of the privacy or reputational interests at stake. Otherwise, it ran the risk of becoming a court of appeal
for such cases.
3. The Court's assessment
(a) Scope of the application
94. The Court observes at the outset that it is not its task in the present case to examine whether Germany has
satisfied its obligations under Article 46 of the Convention regarding execution of the Von Hannover judgment
it delivered in 2004, as that task is the responsibility of the Committee of Ministers (see Verein gegen Tierfabriken
Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, 61, ECHR 2009-..., and Ocalan v. Turkey(dec.), no.
5980/07, 6 July 2010). The present applications concern only new proceedings instituted by the applicants following
the Von Hannoverjudgment and relating to the publication of other photos of them (see paragraphs 15-20 above).
(b) General principles
(i) Concerningprivate life
95. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such
as a person's name, photo, or physical and moral integrity; the guarantee afforded by Article 8 of the Convention
is primarily intended to ensure the development, without outside interference, of the personality of each individual
in his relations with other human beings. There is thus a zone of interaction of a person with others, even in a
public context, which may fall within the scope of private life. Publication of a photo may thus intrude upon a
person's private life even where that person is a public figure (see Schiissel v. Austria (dec.), no. 42409/98, 21
February 2002; Von Hannover, cited above, 50 and 53; Sciacca, cited above, 29; and Petrina v. Romania,
no. 78060/01, 27, 14 October 2008).
96. Regarding photos, the Court has stated that a person's image constitutes one of the chief attributes of his
or her personality, as it reveals the person's unique characteristics and distinguishes the person from his or her
peers. The right to the protection of one's image is thus one of the essential components of personal development.
It mainly presupposes the individual's right to control the use of that image, including the right to refuse publication
thereof (see Reklos and Davourlis v. Greece, cited above, 40).
97. The Court also reiterates that, in certain circumstances, even where a person is known to the general public,
he or she may rely on a "legitimate expectation" of protection of and respect for his or her private life (see Von
Hannover, cited above, 51; Leempoel & S.A. ED. Cing Revue v. Belgium, no. 64772/01, 78, 9 November
2006; Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, 48, 4 June 2009; and Hachette Filipacchi
Associgs (ICI PARIS) v. France, no. 12268/03, 53, 23 July 2009).
98. In cases of the type being examined here what is in issue is not an act by the State but the alleged inadequacy
of the protection afforded by the domestic courts to the applicants' private life. While the essential object of Article
8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the
State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations
 INTERNATIONAL LEGAL MATERIALS [VOL Sl:

inherent in effective respect for private or family life. These obligations may involve the adoption of measures
designed to secure respect for private life even in the sphere of the relations of individuals between themselves
(see X and Y v. the Netherlands, 26 March 1985, 23, Series A no. 91, and Armoniene, cited above, 36). That
also applies to the protection of a person's picture against abuse by others (see Schiissel, cited above; Von Hannover,
cited above, 57; and Reklos and Davourlis, cited above, 35).
99. The boundary between the State's positive and negative obligations under Article 8 does not lend itself to
precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the
fair balance that has to be struck between the relevant competing interests (see White v. Sweden, no. 42435/02,
20, 19 September 2006, and Gurgenidze, cited above, 37).
(ii) Concerningfreedom of expression
100. The present applications require an examination of the fair balance that has to be struck between the
applicants' right to respect for their private life and the right of the publishing company to freedom of expression
guaranteed under Article 10 of the Convention. The Court therefore considers it useful to reiterate the general
principles relating to the application of that provision as well.
101. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the
basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it
is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as
a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance
and broadmindedness without which there is no "democratic society". As set forth in Article 10, freedom of
expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions
must be established convincingly (see, among other authorities, Handyside v. the United Kingdom, 7 December
1976, 49, Series A no. 24, Editions Plon v. France,no. 58148/00, 42, ECHR 2004-IV; and Lindon, Otchakovsky-
Laurens and July v. France [GC], nos. 21279/02 and 36448/02, 45, ECHR 2007-IV).
102. The Court has also repeatedly emphasised the essential role played by the press in a democratic society.
Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights
of others, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities -
information and ideas on all matters of public interest. Not only does the press have the task of imparting such
information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable
to play its vital role of "public watchdog" (see Bladet Tromso and Stensaas v. Norway [GC], no. 21980/93,
59 and 62, ECHR 1999-111, and Pedersen and Baadsgaardv. Denmark [GC], no. 49017/99, 71, ECHR 2004-XI).
Furthermore, is not for the Court, any more than it is for the national courts, to substitute its own views for
those of the press as to what techniques of reporting should be adopted in a particular case (see Jersildv. Denmark,
23 September 1994, 31, Series A no. 298, and Stoll v. Switzerland [GC], no. 69698/01, 146, ECHR 2007-V).
103. The Court reiterates, lastly, that freedom of expression includes the publication of photos (see Osterrei-
chischer Rundfunk v. Austria (dec.), no. 57597/00, 25 May 2004, and Verlagsgruppe News GmbH v. Austria (no.
2), no 10520/02, 29 and 40, 14 December 2006). This is nonetheless an area in which the protection of the
rights and reputation of others takes on particular importance, as the photos may contain very personal or even
intimate information about an individual or his or her family (see Von Hannover, cited above, 59; Hachette
FilipacchiAssociis v. France, no. 71111/01, 42, ECHR 2007-VII; and Eerikiiinen and Others v. Finland, no.
3514/02, 70, 10 February 2009).
Moreover, photos appearing in the "sensationalist" press or in "romance" magazines, which generally aim
to satisfy the public's curiosity regarding the details of a person's strictly private life (see Socijtj Prisma Presse
v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003, and Hachette FilipacchiAssociis (ICI PARIS), cited
above, 40), are often taken in a climate of continual harassment which may induce in the person concerned a
very strong sense of intrusion into their private life or even of persecution (see Von Hannover,cited above, 59,
and Gurgenidze, cited above, 59).
(iii) Concerning the margin of appreciation
104. The Court reiterates that the choice of the means calculated to secure compliance with Article 8 of the
Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls
20121 VON HANNOVER V. GERMANY (No. 2) (EUR. CT. H.R.)

within the Contracting States' margin of appreciation, whether the obligations on the State are positive or negative.
There are different ways of ensuring respect for private life and the nature of the State's obligation will depend
on the particular aspect of private life that is at issue (see X and Y v. the Netherlands, cited above, 24, and
Odikvre v. France [GC], no. 42326/98, 46, ECHR 2003-Il).
Likewise, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation
in assessing whether and to what extent an interference with the freedom of expression protected by this provision
is necessary (see Tammer v. Estonia, no. 41205/98, 60, ECHR 2001-I, and Pedersen and Baadsgaard,cited
above, 68).
105. However, this margin goes hand in hand with European supervision, embracing both the legislation and
the decisions applying it, even those delivered by an independent court (see, mutatis mutandis, Peck v. the United
Kingdom, no. 44647/98, 77, ECHR 2003-1, and Karhuvaara and Iltalehti, cited above, 38). In exercising its
supervisory function, the Court's task is not to take the place of the national courts, but rather to review, in the
light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are
compatible with the provisions of the Convention relied on (see Petrenco v. Moldova, no. 20928/05, 54, 30
March 2010; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, 41, 21 September 2010; and Petrov
v. Bulgaria (dec.), no. 27103/04, 2 November 2010).
106. In cases such as the present one, which require the right to respect for private life to be balanced against
the right to freedom of expression, the Court considers that the outcome of the application should not, in theory,
vary according to whether it has been lodged with the Court under Article 8 of the Convention, by the person
who was the subject of the article, or under Article 10 by the publisher. Indeed, as a matter of principle these
rights deserve equal respect (see Hachette FilipacchiAssocigs (ICI PARIS), cited above, 41; Timciuc v. Romania
(dec.), no. 28999/03, 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, 111, 10 May
2011; see also point 11 of the Resolution of the Parliamentary Assembly - paragraph 71 above). Accordingly,
the margin of appreciation should in theory be the same in both cases.
107. 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 MGN Limited v. the United Kingdom, no. 39401/04, 150 and 155, 18 January 2011,
and Palomo Sdnchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, 57, 12
septembre 2011).
(iv) The criteriarelevant for the balancing exercise
108. Where the right to freedom of expression is being balanced against the right to respect for private life,
the criteria laid down in the case-law that are relevant to the present case are set out below.
(a) Contribution to a debate of general interest
109. An initial essential criterion is the contribution made by photos or articles in the press to a debate of
general interest (see Von Hannover, cited above, 60; Leempoel & S.A. ED. Cini Revue, cited above, 68; and
Standard Verlags GmbH, cited above, 46). The definition of what constitutes a subject of general interest will
depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has
recognised the existence of such an interest not only where the publication concerned political issues or crimes
(see White, cited above, 29; Egeland and Hanseid v. Norway, no. 34438/04, 58, 16 April 2009; and Leempoel &
S.A. ED. Cin Revue, cited above, 72), but also where it concerned sporting issues or performing artists (see
Nikowitz .and Verlagsgruppe News GmbH v. Austria, no. 5266/03, 25, 22 February 2007; Colago Mestre and
SIC - Sociedade Independente de Comunicagdo, S.A. v. Portugal, nos. 11182/03 and 11319/03, 28, 26 April
2007; and Sapan v. Turkey, no. 44102/04, 34, 8 June 2010). However, the rumoured marital difficulties of a
president of the Republic or the financial difficulties of a famous singer were not deemed to be matters of general
interest (see Standard Verlags GmbH, cited above, 52, and Hachette FilipacchiAssociis (ICI PARIS), cited
above, 43).
(13) How well known is the person concerned and what is the subject of the report?
110. The role or function of the person concerned and the nature of the activities that are the subject of the
report and/or photo constitute another important criterion, related to the preceding one. In that connection a
 INTERNATIONAL LEGAL MATERIALS [VOL S1:

distinction has to be made between private individuals and persons acting in a public context, as political figures
or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection
of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no.
14991/02, 14 June 2005, and Petrenco, cited above, 55). A fundamental distinction needs to be made between
reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise
of their official functions for example, and reporting details of the private life of an individual who does not
exercise such functions (see Von Hannover, cited above, 63, and Standard Verlags GmbH, cited above, 47).
While in the former case the press exercises its role of "public watchdog" in a democracy by imparting
information and ideas on matters of public interest, that role appears less important in the latter case. Similarly,
although in certain special circumstances the public's right to be informed can even extend to aspects of the private
life of public figures, particularly where politicians are concerned, this will not be the case - despite the person
concerned being well known to the public - where the published photos and accompanying commentaries relate
exclusively to details of the person's private life and have the sole aim of satisfying public curiosity in that respect
(see Von Hannover, cited above, 65 with the references cited therein, and Standard Verlags GmbH, cited above,
53; see also point 8 of the Resolution of the Parliamentary Assembly - paragraph 71 above). In the latter case,
freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, 66; Hachette Filipacehi
Associis (ICI PARIS), cited above, 40; and MGN Limited, cited above, 143).
(-y) Prior conduct of the person concerned
111. The conduct of the person concerned prior to publication of the report or the fact that the photo and the
related information have already appeared in an earlier publication are also factors to be taken into consideration
(see Hachette FilipacchiAssocigs (ICI PARIS), cited above, 52-53, and Sapan, cited above, 34). However,
the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving
the party concerned of all protection against publication of the photo at issue (see Egeland and Hanseid, cited
above, 62).
(8) Content, form and consequences of the publication
112. The way in which the photo or report are published and the manner in which the person concerned is
represented in the photo or report may also be factors to be taken into consideration (see Wirtschafts-Trend
Zeitschriften-Verlagsgesellschaftm.b.H. v. Austria (no. 3), nos. 66298/01 and 15653/02, 47, 13 December 2005;
Reklos and Davourlis, cited above, 42; and Jokitaipaleand Others v. Finland,no. 43349/05, 68, 6 April 2010).
The extent to which the report and photo have been disseminated may also be an important factor, depending on
whether the newspaper is a national or local one, and has a large or a limited circulation (see Karhuvaara and
Iltalehti, cited above, 47, and Gurgenidze, cited above, 55).
(E) Circumstances in which the photos were taken
113. Lastly, the Court has already held that the context and circumstances in which the published photos were
taken cannot be disregarded. In that connection regard must be had to whether the person photographed gave their
consent to the taking of the photos and their publication (see Gurgenidze, cited above, 56, and Reklos and
Davourlis, cited above, 41) or whether this was done without their knowledge or by subterfuge or other illicit
means (see Hachette FilipacchiAssoci~s (ICIPARIS), cited above, 47, and Flinkkila and Others v. Finland,no.
25576/04, 81, 6 April 2010). Regard must also be had to the nature or seriousness of the intrusion and the
consequences of publication of the photo for the person concerned (see Egeland and Hanseid, cited above, 61,
and Timciuc, decision cited above, 150). For a private individual, unknown to the public, the publication of a
photo may amount to a more substantial interference than a written article (see Eerikdinen and Others, cited above,
70, and A. v. Norway, cited above, 72).
(c) Application of the principles to the present case
114. The Court takes note of the changes made by the Federal Court of Justice to its earlier case-law following
the Von Hannover judgment. That court stated, inter alia, that in future importance had to be attached to the
question whether the report in question contributed to a factual debate and whether its contents went beyond a
mere desire to satisfy public curiosity. It observed in that connection that the greater the information value for
the public the more the interest of a person in being protected against its publication had to yield, and vice versa.
20121 VON HANNOVER V. GERMANY (No. 2) (EUR. Cr. H.R.)

Whilst pointing out that the freedom of expression also included the entertainment press, it stated that the reader's
interest in being entertained generally carried less weight than the interest in protecting the private sphere.
115. The Federal Constitutional Court confirmed that approach, stating that whilst it had not, in its judgment
of 15 December 1999, called into question the former case-law of the Federal Court of Justice, that did not mean
that another concept of protection - giving greater weight to balancing the conflicting interests at stake when
examining the question whether a photo could be regarded as an aspect of contemporary society and could
accordingly be published without the consent of the person concerned - could not be in conformity with the
Basic Law.
116. In so far as the applicants alleged that the new approach of the Federal Court of Justice and the Federal
Constitutional Court merely reproduced the reasoning of the former case-law using different terms, the Court
reiterates that its task is not to review the relevant domestic law and practice in abstracto,but to determine whether
the manner in which they were applied to the applicants has infringed Article 8 of the Convention (see Karhuvaara
and Jltalehti, cited above, 49).
117. The Court observes that in applying its new approach the Federal Court of Justice found that as neither
the part of the article accompanying the photos of the applicants' skiing holiday nor the photos themselves contained
information related to an event of contemporary society, they did not contribute to a debate of general interest.
The Federal Court of Justice found that the same could not be said, however, with regard to the information in
the articles about the illness affecting Prince Rainier III, the reigning sovereign of the Principality of Monaco at
the time, and the conduct of the members of his family during that illness. In the Federal Court of Justice's opinion,
that subject qualified as an event of contemporary society on which the magazines were entitled to report, and to
include the photos in question in that report as these supported and illustrated the information being conveyed.
The Federal Constitutional Court, for its part, observed that the Federal Court of Justice had accepted that the
reigning prince of Monaco's illness could be regarded as a matter of general interest and that the press was
therefore entitled to report on how the prince's children reconciled their obligations of family solidarity with the
legitimate needs of their private life, among which was the desire to go on holiday. It also confirmed that there
was a sufficiently close link between the photo and the event described in the article.
118. The Court observes that the fact that the Federal Court of Justice assessed the information value of the
photo in question in the light of the accompanying article cannot be criticised under the Convention (see, mutatis
mutandis, Tonsbergs Blad A.S. and Haukom, cited above, 87, and OsterreichischerRundfunk v. Austria, no.
35841/02, 68 and 69, 7 December 2006). Regarding the characterisation of Prince Rainier's illness as an event
of contemporary society, the Court is of the opinion that, having regard to the reasons advanced by the German
courts, that interpretation cannot be considered unreasonable (see, mutatis mutandis, Editions Plon, cited above,
46-57). It is worth mentioning in this connection that the Federal Court of Justice upheld the injunction
forbidding publication of two other photos showing the applicants in similar circumstances, precisely on the
grounds that they were being published for entertainment purposes alone (see paragraphs 36 and 37 above). The
Court can therefore accept that the photos in question, considered in the light of the accompanying articles, did
contribute, at least to some degree, to a debate of general interest. It would reiterate, on this point, that not only
does the press have the task of imparting information and ideas on all matters of public interest, the public also
has a right to receive them (see paragraph 102 above).
119. In so far as the applicants complained of a risk that the media would circumvent the conditions laid down
by the Federal Court of Justice by using any event of contemporary society as a pretext to justify the publication
of photos of them, the Court notes that it is not its task, in the context of the present applications, to rule on the
conformity with the Convention of any future publication of photos of the applicants. Should that happen, it will
be open to them to bring proceedings in the appropriate national courts. The Court also observes that the Federal
Constitutional Court stated in its judgment that where an article was merely a pretext for publishing a photo of a
prominent person, no contribution was thereby made to the formation of public opinion and there were therefore
no grounds for allowing the interest in publication to prevail over the protection of personality rights.
120. Admittedly, the Federal Court of Justice based its reasoning on the premise that the applicants were well-
known public figures who particularly attracted public attention, without going into their reasons for reaching that
conclusion. The Court considers, nonetheless, that irrespective of the question whether and to what extent the first
 INTERNATIONAL LEGAL MATERIALS [VOL. 51:

applicant assumes official functions on behalf of the Principality of Monaco, it cannot be claimed that the applicants,
who are undeniably very well known, are ordinary private individuals. They must, on the contrary, be regarded
as public figures (see Gurgenidze, cited above, 40; Sciacca, cited above, 27; Reklos and Davourlis, cited
above, 38; and Giorgi Nikolaishvili v. Georgia, no. 37048/04, 123, ECHR 2009-...).
121. The Federal Court of Justice then examined the question whether the photos had been taken in circumstances
unfavourable to the applicants. The Government submitted that the fact that the photos had been taken without the
applicants' knowledge did not necessarily mean that they had been taken surreptitiously in conditions unfavourable to
the applicants. The latter, for their part, alleged that the photos had been taken in a climate of general harassment
with which they were constantly confronted.
122. The Court observes that the Federal Court of Justice concluded that the applicants had not adduced evidence
of unfavourable circumstances in that connection and that there was nothing to indicate that the photos had been
taken surreptitiously or by equivalent secret means such as to render their publication illegal. The Federal Constitu-
tional Court, for its part, stated that the publishing company concerned had provided details of how the photo that
had appeared in the Frau im Spiegel magazine had been taken, but that the first applicant had neither complained
before the civil courts that those details were inadequate nor submitted that the photo in question had been taken
in conditions that were unfavourable to her.
123. The Court observes that, according to the case-law of the German courts, the circumstances in which
photos have been taken constitutes one of the factors that are normally examined when the competing interests
are balanced against each other. In the present case it can be seen from the decisions of the national courts that
this factor did not require a more thorough examination as the applicants did not put forward any relevant arguments
and there were no particular circumstances justifying an injunction against publishing the photos. The Court notes,
moreover, as pointed out by the Federal Court of Justice, that the photos of the applicants in the middle of a street
in St. Moritz in winter were not in themselves offensive to the point of justifying their prohibition.
(d) Conclusion
124. The Court observes that, in accordance with their case-law, the national courts carefully balanced the right
of the publishing companies to freedom of expression against the right of the applicants to respect for their private
life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light
of the accompanying articles, had contributed to a debate of general interest. They also examined the circumstances
in which the photos had been taken.
125. The Court also observes that the national courts explicitly took account of the Court's relevant case-law.
Whilst the Federal Court of Justice had changed its approach following the Von Hannoverjudgment, the Federal
Constitutional Court, for its part, had not only confirmed that approach, but also undertaken a detailed analysis
of the Court's case-law in response to the applicants' complaints that the Federal Court of Justice had disregarded
the Convention and the Court's case-law.
126. In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts
when balancing competing interests, the Court concludes that the latter have not failed to comply with their positive
obligations under Article 8 of the Convention. Accordingly, there has not been a violation of that provision.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Disjoins the application in the case of Axel Springer AG v. Germany (no. 39954/08) from the present
applications;
2. Declares the present applications admissible;
3. Holds that there has been no violation of Article 8 of the Convention.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg,
on 7 February 2012.
Michael O'Boyle Nicolas Bratza
Deputy Registrar President