Privacy and Personality, Politicians and Stars

Article by Rohan Massey and Kathrin Tauber

One could be forgiven for thinking that the sanctity of marriage is one of the few things chancellor Gerhard Schröder of Germany and the Hollywood A-list couple Michael Douglas and Catherine Zeta-Jones have in common, however, the recent cases that they have brought in Germany and the UK, respectively, highlight the approaches being taken in Europe towards the individual’s right to protect their privacy from unwanted media attention.

Germany and the UK have historically taken different paths on the development legal rights to protect individuals. Germany has followed the US approach of adopting a statutory personality right. The UK, on the other hand, has not legislated on privacy or personality instead it has seen the judicial development of the laws of confidence and data protection.

The current legal dilemma surrounding the issue of privacy in Europe has arisen because actions being brought in the courts of EU member states must be considered in light of the European Convention on Human Rights. In actions regarding an individual’s privacy there is often a need to balance Article 8 of the European Convention on Human Rights, which grants the right to respect for private and family life, and Article 10, which grants the right to freedom of expression.

In Germany the personality right is a statutory right granted in section 1 para. 1 and section 2 para. 1 of the German Constitution (Grundgesetz). The German right is a broad one, granting the individual the right to control the development and exploitation of his own personality, with different levels of protection being given to the individual, private and intimate aspects of a person’s life. Any illegal interference with the personality right entitles the individual to seek compensation and, where necessary, an injunction according to sections 823 and 1004 of the German Civil Code (Bürgerliches Gesetzbuch).

For a claim of infringement of the personality right to be successful there has to be comprehensive consideration of the parties’ affected interests. This is achieved by comparing the constitutionally guaranteed freedom of speech and the personality right of the offended. This balance is weighed on the facts of the case. It should be noted that the balance is subjective with the German courts generally lowering the threshold of protection from media intrusion granted to individuals in the public eye. This subjective determination of protection does not signify a wholesale removal of public figure’s right to privacy, merely a limitation of it.

Chancellor Gerhard Schröder recently took advantage of the personality right by bringing an action in the Lower Regional Court of Düsseldorf against a newspaper that had published an article reporting rumors relating to the state of the Chancellor’s marriage. The newspaper made clear that it was not reporting a factual story on the state of the Chancellor’s marriage, but merely that rumours were circulating in Germany that the Schröders had apparently been involved in a public fight and that the Chancellor had spent several nights away from his home in Hannover.

The court balanced the arguments of the information being of public interest, as argued by the newspaper, against the personal interests of the Chancellor. Based on the facts of the case, and as the newspaper was not holding the story out as fact but reporting rumour, it was held that the Chancellor’s private life was of public interest. In particular the court recognized the fact that media reporting prior to this case did not include specific private details about the Chancellor’s marriage disputes. Such information would have been important in this case, as Chancellor Schröder campaigned by promoting his family life during the 2002 election. The court held that the press was allowed to report on the Chancellor’s family life to the extent that it was made public, i.e., that he was married, though the press did not have the right to report on intimate details or specific details of his marriage that Chancellor Schröder had not previously made public.

As there is no statutory protection of privacy in the UK the recent case brought by Catherine Zeta-Jones and Michael Douglas has been seen as something of a watershed between the current system of trying to protect privacy using a combination of the common law of confidence and a combination of other legislation, such as the Data Protection Act, and the introduction of a statutory right to privacy similar to that in Germany.

The November 2000 wedding of Catherine Zeta-Jones and Michael Douglas, which was a closely guarded and nominally private affair, was billed as the event of the year and the couple arranged a £1 million deal with OK! magazine for exclusive rights to publish pictures of the wedding. Hello! magazine, a rival of OK!’s, managed to obtain and publish unauthorised photographs of the couple‘s wedding prior to the publication of Hello!’s exclusive.

The Douglases were both furious and upset feeling that their privacy had been breached. The action they brought against Hello! was based on the fact that despite commercialising the wedding by selling their photos they had taken extreme and expensive measures to ensure that the wedding itself and the photographs of it were private.

Initially the case appeared to favour the pro-privacy law lobby as the Douglases were granted an injunction against Hello! to prevent it publishing the unauthorised photographs. Then, the court of appeal overturned the injunction. Sedley L J alluded to the point that as Parliament had not introduced a law of privacy in light of the coming into force of the Human Rights Act, and need to do so. Almost three years on from the injunction being overturned Parliament has failed to act upon the Sedly L J’s comments and it fell to Mr Justice Lindsay in the High Court to rule on the matter.

At trial, the High Court found in favour of the Douglases. However, the judgment was not based on a law of privacy but, based on the specific facts of the case, by relying on long established principles of the law of confidence. In being able to grant rights to publish pictures, the Douglases had a commodity, the value of which depended upon it being kept secret and then made public in a controlled way. Any unauthorised publication would be a breach of commercial confidence. Put simply, all photographs of the wedding were deemed to be confidential information. The unauthorised photographs of the wedding were a disclosure of information that was protected by confidence and the publication by Hello! of the unauthorised photographs was a breach of confidence.

Unfortunately for the pro-privacy law lobby the judgment avoided creating a law of privacy, as the judge felt that the arguments for the existence of a free-standing right of privacy had not been made. The justification for such a right depends, arguably, on English law being so inadequate that individual rights to private and family life are not properly protected. In this case such an inadequacy could not be demonstrated, and the common law breach of confidence was sufficient to both protect the Douglases and to provide them with adequate remedy.

However, the judiciary again commented on the need for Parliament to determine the ramifications of recognising a wide right of privacy and legislate accordingly, adding that if Parliament could not, or would not, act on the issue of a law of privacy then in future cases where the facts do not allow for determination under the laws of confidence, or other ill-suited legislation, then the judiciary may be forced to so.