On October 19, 2017, the European Court of Human Rights ("ECHR") announced its decision in a significant case, regarding a piece of content published on a website.

In the case of Fuchsmann v. Germany, the applicant was an internationally active entrepreneur in the media sector and the chief executive officer of a media company. In his application to the ECHR, he claimed that the domestic courts had failed to protect his privacy rights by refusing to prevent the circulation of an article in an online newspaper, which was allegedly damaging to his reputation.

According to the decision of the ECHR, on June 12, 2001, the New York Times (a daily newspaper in the United States) published an article about a corruption investigation being conducted against a company regarding allegations that the company had paid at least USD 1,000,000 in order to bribe Ukrainian officials in exchange for a valuable television license, and a slightly altered version of the article was also published on the newspaper's website. The version of the article published on the website included allegations regarding the applicant as well.

On July 31, 2002, the applicant sought injunctions against certain parts of the printed and online versions of the article. However, the Düsseldorf Regional Court dismissed the lawsuit and the Düsseldorf Court of Appeals confirmed the lower court's dismissal decision. The Federal Court of Justice in Germany also rejected the complaint lodged by the applicant, and the Federal Constitutional Court subsequently declined to consider a constitutional complaint lodged by the applicant, without providing a reasoned decision.

The ECHR, by considering and examining the relevant provisions of the basic law, found the application to be admissible. The Court further stated that it had considered whether a fair balance had been struck between the applicant's right to the protection of his private life under Article 8 of the European Convention on Human Rights ("Convention") and the newspaper's right to exercise its freedom of expression, as guaranteed by Article 10 of the Convention. The ECHR further declared that the following criteria had been taken into account while balancing these competing interests:

  1. the contribution to a debate of public interest;
  2. the degree to which the person affected is well-known;
  3. the subject of the news report;
  4. the prior conduct of the person concerned;
  5. the method of obtaining the information and confirming its veracity; and
  6. the content, form and consequences of the publication.

Since the applicant in this case was an internationally active entrepreneur in the media sector, the ECHR emphasized that, while an unknown private individual may claim that his/her private life warrants strong legal protection, this principle does not hold true for public figures to the same degree. The ECHR found that the first-degree courts had also taken into account and applied the foregoing criteria in balancing the applicant's right to respect for his private life with the newspaper's right to exercise its freedom of expression, and, therefore, concluded that there had been no violation of Article 8 of the Convention in this case.

The Turkish Supreme Court has stated in numerous previous decisions that public figures may be criticized more harshly than private citizens in the media, and that they need to be more broadminded and tolerant regarding the criticisms directed at them, due to their positions in the public eye. Therefore, the Fuchsmann v. Germany case may be viewed as one of the most recent ECHR decisions confirming the Turkish Supreme Court's position on this matter, with respect to balancing the competing interests (i.e., privacy vs. freedom of expression) of the parties.


This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in December 2017. A link to the full Legal Insight Quarterly may be found here.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.