Public or political figures
II. RELEVANT DOMESTIC AND EUROPEAN LAW A. The Basic Law 39. The relevant provisions of the Basic Law are worded 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 on the radio and in films shall be guaranteed. There shall be no censorship. 2. These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour [ Recht der persönlichen Ehre ]. ” Article 6 §§ 1 and 2 “1. Marriage and the family enjoy the special protection of the State. 2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent on them. The State community shall oversee the performance of that duty. ” B. The Copyright ( Arts Domain ) Act 40. Section 22(1) of the Copyright ( Arts Domain ) Act provides that images can only be disseminated with the express approval of the person concerned. 41. Section 23(1) no. 1 of that Act provides for exceptions to that rule, particularly 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 42. The full text of this resolution, adopted by the Parliamentary Assembly on 26 June 1998, is worded 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 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 Convention on Human Rights, and since many systems of national legislation comprise provisions guaranteeing this protection, there is no need to propose that a new convention guaranteeing the right to privacy should be adopted. 14. The Assembly calls upon the governments of the member states to pass legislation, if no such legislation yet exists, guaranteeing the right to privacy containing the following guidelines, or if such legislation already exists, to supplement it with these guidelines: (i) the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy; (ii) editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel; (iii) when editors have published information that proves to be false, they should be required to publish equally prominent corrections at the request of those concerned; ( iv) economic penalties should be envisaged for publishing groups which systematically invade people ’ s privacy; (v) following or chasing persons to photograph, film or record them, in such a manner that they are prevented from enjoying the normal peace and quiet they expect in their private lives or even such that they are caused actual physical harm, should be prohibited; (vi) a civil action (private lawsuit) by the victim should be allowed against a photographer or a person directly involved, where paparazzi have trespassed or used ‘ visual or auditory enhancement devices ’ to capture recordings that they otherwise could not have captured without trespassing; (vii) provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy; (viii) the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published. 15. It invites those governments which have not yet done so to ratify without delay the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. 16. The Assembly also calls upon the governments of the member states to: (i) encourage the professional bodies that represent journalists to draw up certain criteria for entry to the profession, as well as standards for self-regulation and a code of journalistic conduct; (ii) promote the inclusion in journalism training programmes of a course in law, highlighting the importance of the right to privacy vis-à-vis society as a whole; (iii) foster the development of media education on a wider scale, as part of education about human rights and responsibilities, in order to raise media users ’ awareness of what the right to privacy necessarily entails; (iv) facilitate access to the courts and simplify the legal procedures relating to press offences, in order to ensure that victims ’ rights are better protected. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 43. The applicant submitted that the German court decisions had infringed her right to respect for her private and family life, guaranteed by Article 8 of the Convention, which is worded as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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 national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions of the parties and interveners 1. The applicant 44. The applicant stated that she had spent more than ten years in unsuccessful litigation in the German courts trying to establish her right to the protection of her private life. She alleged that as soon as she left her house she was constantly hounded by paparazzi who followed her every daily movement, be it crossing the road, fetching her children from school, doing her shopping, out walking, engaging in sport or going on holiday. In her submission, the protection afforded to the private life of a public figure like herself was minimal under German law because the concept of a “ secluded place ” as defined by the Federal Court of Justice and the Federal Constitutional Court was much too narrow in that respect. Furthermore, in order to benefit from that protection the onus was on her to establish every time that she had been in a secluded place. She was thus deprived of any privacy and could not move about freely without being a target for the paparazzi. She affirmed that in France her prior agreement was necessary for the publication of any photos not showing her at an official event. Such photos were regularly taken in France and then sold and published in Germany. The protection of private life from which she benefited in France was therefore systematically circumvented by virtue of the decisions of the German courts. On the subject of the freedom of the press, the applicant stated that she was aware of the essential role played by the press in a democratic society in terms of informing and forming public opinion, but in her case it was just the entertainment press seeking to satisfy its readers ’ voyeuristic tendencies and make huge profits from generally innocuous photos showing her going about her daily business. Lastly, the applicant stressed that it was materially impossible to establish in respect of every photo whether or not she had been in a secluded place. As the judicial proceedings were generally held several months after publication of the photos, she was obliged to keep a permanent record of her every movement in order to protect herself from paparazzi who might photograph her. With regard to many of the photos that were the subject of this application, it was impossible to determine the exact time and place at which they had been taken. 2. The Government 45. The Government submitted that German law, while taking account of the fundamental role of the freedom of the press in a democratic society, contained sufficient safeguards to prevent any abuse and ensure the effective protection of the private life of even public figures. In their submission, the German courts had in the instant case struck a fair balance between the applicant ’ s rights to respect for her private life guaranteed by Article 8 and the freedom of the press guaranteed by Article 10, having regard to the margin of appreciation available to the State in this area. The courts had found in the first place that the photos had not been taken in a secluded place and had, subsequently, examined the limits on the protection of private life, particularly in the light of the freedom of the press and even where the publication of photos by the entertainment press was concerned. The protection of the private life of a figure of contemporary society “ par excellence ” did not require the publication of photos without his or her authorisation to be limited to showing the person in question engaged in their official duties. The public had a legitimate interest in knowing how the person behaved generally in public. The Government submitted that this definition of the freedom of the press by the Federal Constitutional Court was compatible with Article 10 and the European Court ’ s relevant case-law. Furthermore, the concept of a secluded place was only one factor, albeit an important one, of which the domestic courts took account when balancing the protection of private life against the freedom of the press. Accordingly, while private life was less well protected where a public figure was photographed in a public place, other factors could also be taken into consideration, such as the nature of the photos, for example, which should not shock the public. Lastly, the Government observed that the decision of the Federal Court of Justice – which had held that the publication of photos of the applicant with the actor Vincent Lindon in a restaurant courtyard in Saint-Rémy-de-Provence were unlawful – showed that the applicant ’ s private life was protected even outside her home. 3. The interveners 46. The Association of German Magazine Publishers submitted that German law, which was halfway between French law and United Kingdom law, struck a fair balance between the right to protection of private life and the freedom of the press. In its submission, it also complied with the principles set out in Resolution 1165 of the Parliamentary Assembly of the Council of Europe on the right to privacy and the European Court ’ s case-law, which had always stressed the fundamental role of the press in a democratic society. The public ’ s legitimate interest in being informed was not limited to politicians, but extended to public figures who had become known for other reasons. The press ’ s role of “watchdog” could not be narrowly interpreted here. In that connection, account should also be taken of the fact that the boundary between political commentary and entertainment was becoming increasingly blurred. Given that there was no uniform European standard concerning the protection of private life, the State had a wide margin of appreciation in this area. 47. Burda joined the observations of the Association of German Magazine Publishers and stated that German law required the courts to balance the competing interests of informing the public and protecting the right to control the use of one ’ s image very strictly and on a case - by - case basis. Even figures of contemporary society “ par excellence ” enjoyed a not inconsiderable degree of protection, and recent case-law had even tended towards reinforcing that protection. Since the death of her mother in 1982, the applicant had officially been First Lady of the reigning family in Monaco and was as such an example for the public ( Vorbildfunktion ). Moreover, the Grimaldi family had always sought to attract media attention and was therefore itself responsible for the public interest in it. The applicant could not therefore, especially if account were taken of her official functions, be regarded as a victim of the press. The publication of the photos in question had not infringed her right to control the use of her image because they had been taken while she was in public and had not been damaging to her reputation. B. The Court ’ s assessment 1. As regards the subject of the application 48. The Court notes at the outset that the photos of the applicant with her children are no longer the subject of this application, as it stated in its admissibility decision of 8 July 2003. The same applies to the photos published in Freizeit Revue magazine ( issue no. 30 of 22 July 1993 ) showing the applicant with Vincent Lindon at the far end of a restaurant courtyard in Saint-Rémy-de-Provence (see paragraph 11 above). In its judgment of 19 December 1995, the Federal Court of Justice prohibited any further publication of the photos on the ground that they infringed the applicant ’ s right to respect for her private life (see paragraph 23 above). 49. Accordingly, the Court considers it important to specify that the present application concerns the following photos, which were published as part of a series of articles about the applicant : (i) the photo published in Bunte magazine ( issue no. 32 of 5 August 1993 ) showing the applicant on horseback (see paragraph 12 above) (ii) the photos published in Bunte magazine ( issue no. 34 of 19 August 1993) showing the applicant shopping on her own; with Mr Vincent Lindon in a restaurant; alone on a bicycle; and with her bodyguard at a market (see paragraph 13 above); (iii) the photos published in Bunte magazine ( issue no. 10 of 27 February 1997 ) showing the applicant on a skiing holiday in Austria (see paragraph 1 4 above); (iv ) the photos published in Bunte magazine ( issue no. 1 2 of 13 March 1997 ) showing the applicant with Prince Ernst August von Hannover and alone leaving her Parisian residence (see paragraph 15 above); (v) the photos published in Bunte magazine ( issue no. 16 of 10 April 1997 ) showing the applicant playing tennis with Prince Ernst August von Hannover and both of them putting their bicycles down (see paragraph 16 above); (vi) the photos published in Neue Post magazine ( issue no. 35/97) showing the applicant tripping over an obstacle at the Monte Carlo Beach Club (see paragraph 17 above). 2. Applicability of Article 8 50. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person ’ s name (see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24), or a person ’ s picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002). Furthermore, private life, in the Court ’ s view, includes a person ’ s physical and psychological 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 ( see, mutatis mutandis, Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp. 33 -34, § 29, and Botta v. Italy, judgment of 24 February 1998, Reports of Judgments and Decisions 1998- I, p. 422, § 32). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see, mutatis mutandis, P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 20 01- IX, and Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003- I). 51. The Court has also indicated that, in certain circumstances, a person has a “legitimate expectation” of protection and respect for his or her private life. Accordingly, it has held in a case concerning the interception of telephone calls on business premises that the applicant “would have had a reasonable expectation of privacy for such calls ” (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports 1997- III, p. 1016, § 45). 52. As regards photos, with a view to defining the scope of the protection afforded by Article 8 against arbitrary interference by public authorities, the European Commission of Human Rights had regard to whether the photographs related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public (see, mutatis mutandis, Friedl v. Austria, judgment of 31 January 1995, Series A no. 3 05- B, opinion of the Commission, p. 21, §§ 49-52; P.G. and J.H. v. the United Kingdom, cited above, § 58; and Peck, cited above, § 61). 53. In the present case there is no doubt that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life. 3. Compliance with Article 8 (a) The domestic courts ’ position 54. The Court notes that, in its landmark judgment of 15 December 1999, the Federal Constitutional Court interpreted sections 22 and 23 of the Copyright (Arts Domain) Act (see paragraphs 40-41 above) by balancing the requirements of the freedom of the press against those of the protection of private life, that is, the public interest in being informed against the legitimate interests of the applicant. In doing so the Federal Constitutional Court took account of two criteria under German law, one functional and the other spatial. It considered that the applicant, as a figure of contemporary society “ par excellence ”, enjoyed the protection of her private life even outside her home but only if she was in a secluded place out of the public eye to which persons retire “ with the objectively recognisable aim of being alone and where, confident of being alone, they behave in a manner in which they would not behave in public ”. In the light of those criteria, the Federal Constitutional Court held that the Federal Court of Justice ’ s judgment of 19 December 1995 regarding publication of the photos in question was compatible with the Basic Law. The court attached decisive weight to the freedom of the press, even the entertainment press, and to the public interest in knowing how the applicant behaved outside her representative functions (see paragraph 25 above). 55. Referring to its landmark judgment, the Federal Constitutional Court did not entertain the applicant ’ s appeals in the subsequent proceedings brought by her (see paragraphs 32 and 38 above). ( b ) General principles governing the protection of private life and the freedom of expression 56. In the present case the applicant did not complain of an action by the State, but rather of the lack of adequate State protection of her private life and her image. 57. The Court reiterates that, although the object of Article 8 is essentially that of protecting 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 primarily negative undertaking, there may be positive obligations inherent in an 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, mutatis mutandis, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23; Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299- B, pp. 60-61, § 38; and Verliere v. Switzerland (dec.), no. 41953/98, ECHR 2001 ‑ VII). That also applies to the protection of a person ’ s picture against abuse by others ( see Schüssel, cited above). The boundary between the State ’ s positive and negative obligations under this provision 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 competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation ( see, among many other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49, and Botta, cited above, p. 427, § 33). 58. That protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention. In that context, the Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. 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 that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49). In that connection, the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect 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 (see, among many authorities, Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, pp. 29-30, § 59, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999- III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38; Tammer v. Estonia, no. 41205/98, §§ 59-63, ECHR 2001- I; and Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003). 59. Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution. 60. In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, as a recent authority, Tammer, cited above, §§ 59 et seq.; News Verlags GmbH & Co. KG v. Austria, no. 31457/96, §§ 52 et seq., ECHR 2000-I; and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual ’ s private life was not “ justified by considerations of public concern ” and that those terms did not “[bear] on a matter of general importance” (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of “major public concern” and that the published photographs “did not disclose any details of [the] private life” of the person in question (see Krone Verlag GmbH & Co. KG, cited above, § 37) and held that there had been a violation of Article 10. Similarly, in a recent case concerning the publication by President Mitterrand ’ s former private doctor of a book containing revelations about the President ’ s state of health, the Court held that “the more time that elapsed, the more the public interest in discussion of the history of President Mitterrand ’ s two terms of office prevailed over the requirements of protecting the President ’ s rights with regard to medical confidentiality” (see Editions Plon v. France, no. 58148/00, § 53, ECHR 2004-IV ) and held that there had been a breach of Article 10. ( c ) Application of these general principles by the Court 61. The Court notes at the outset that in the present case the photos of the applicant in the various German magazines show her in scenes from her daily life, thus involving activities of a purely private nature such as engaging in sport, out walking, leaving a restaurant or on holiday. The photos, in which the applicant appears sometimes alone and sometimes in company, illustrate a series of articles with such innocuous titles as “Pure happiness”, “Caroline ... a woman returning to life”, “Out and about with Princess Caroline in Paris ” and “The kiss. Or: they are not hiding anymore ” (see paragraphs 11-17 above). 62. The Court also notes that the applicant, as a member of the Prince of Monaco ’ s family, represents the ruling family at certain cultural or charitable events. However, she does not exercise any function within or on behalf of the State of Monaco or any of its institutions (see paragraph 8 above). 63. The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “ watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest ( see Observer and Guardian, loc. cit. ), it does not do so in the latter case. 64. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned (see Editions Plon, loc. cit .), this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant ’ s private life. 65. As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, the sole purpose of which was to satisfy the curiosity of a particular readership regarding the details of the applicant ’ s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public (see, mutatis mutandis, Campmany y Diez de Revenga and Lopez Galiacho Perona v. Spain (dec.), no. 54 224/00, ECHR 2000-XII; Julio Bou Gibert and El Hogar Y La Moda J.A. v. Spain ( dec.), no. 14929/02, 13 May 2003; and Prisma Presse, cited above). 66. In these conditions freedom of expression calls for a narrower interpretation (see Prisma Presse, cited above, and, by converse implication, Krone Verlag GmbH & Co. KG, cited above, § 37). 67. In that connection, the Court also takes account of the resolution of the Parliamentary Assembly of the Council of Europe on the right to privacy, which stresses the “one-sided interpretation of the right to freedom of expression ” by certain media which attempt to justify an infringement of the rights protected by Article 8 of the Convention by claiming that “ their readers are entitled to know everything about public figures ” (see paragraph 42 above, and Prisma Presse, cited above). 68. The Court finds another point to be of importance: even though, strictly speaking, the present application concerns only the publication of the photos and articles by various German magazines, the context in which these photos were taken – without the applicant ’ s knowledge or consent –and the harassment endured by many public figures in their daily lives cannot be fully disregarded (see paragraph 59 above). In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at the Monte Carlo Beach Club tripping over an obstacle and falling down (see paragraph 17 above). It appears that these photos were taken secretly at a distance of several hundred metres, probably from a neighbouring house, whereas journalists ’ and photographers ’ access to the club was strictly regulated (see paragraph 33 above). 69. The Court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being ’ s personality. That protection – as stated above – extends beyond the private family circle and also includes a social dimension. The Court considers that anyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life (see paragraph 51 above and, mutatis mutandis, Halford, cited above, p. 1016, § 45). 70. Furthermore, increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data (see point 5 of the Parliamentary Assembly ’ s resolution on the right to privacy, paragraph 42 above, and, mutatis mutandis, Amann v. Switzerland [GC], no. 27798/95, § § 65-67, ECHR 2000- II; Rotaru v. Romania [GC], no. 28341/95, § § 43-44, ECHR 2000- V; P.G. and J.H. v. the United Kingdom, cited above, § § 57 ‑ 60; and Peck, cited above, §§ 59-63 and 78). This also applies to the systematic taking of specific photos and their dissemination to a broad section of the public. 71. Lastly, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33). 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 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. ( d ) Conclusion 76. As the Court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution, since the applicant exercises no official function and the photos and articles related exclusively to details of her private life. 77. Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public. Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court ’ s view, yield to the applicant ’ s right to the effective protection of her private life. 78. Lastly, in the Court ’ s opinion the criteria established by the domestic courts were not sufficient to ensure the effective protection of the applicant ’ s private life and she should, in the circumstances of the case, have had a “legitimate expectation” of protection of her private life. 79. Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considers that the German courts did not strike a fair balance between the competing interests. 80. There has therefore been a breach of Article 8 of the Convention. 81. Having regard to that finding, the Court does not consider it necessary to rule on the applicant ’ s complaint relating to her right to respect for her family life. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 82. 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.” 83. The applicant claimed 50,000 euros (EUR) for non-pecuniary damage on the ground that the German courts ’ decisions prevented her from leading a normal life with her children without being hounded by the media. She also claimed EUR 142,851.31 in reimbursement of her costs and expenses for the many sets of proceedings she had had to bring in the German courts. 84. The Government contested the amounts claimed. As regards non-pecuniary damage, they reiterated that, under German law, the applicant enjoyed protection of her private life even outside her home, particularly where her children were concerned. With regard to costs and expenses, they submitted that not all the proceedings could be taken into account, that the value of parts of the subject matter was less than the amount stated, and that the legal fees being claimed, in view of the amount concerned, could not be reimbursed. 85. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the Government and the applicant.
The European Court of Human Rights held that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights, finding that the German courts had not, in the present case, struck a fair balance between the interests at stake. It observed in particular that, while the general public might have a right to information, including, in special circumstances, on the private life of public figures, they did not have such a right in this instance. The Court considered that the general public did not have a legitimate interest in knowing the applicant’s whereabouts or how she behaved generally in her private life even if she appeared in places that could not always be described as secluded and was well known to the public. Even if such a public interest existed, just as there existed a commercial interest for the magazines to publish the photographs and articles, those interests had, in the Court’s view, to yield to the applicant’s right to the effective protection of her private life.