Public Interest vs interest of the public

31 Outrageously, there is no absolute settlement on what the scope of private life actually is.

Chapter III – Legitimate Interest and the Media

32 the need for balancing tests in courts when faced with controversial cases. These stances by the ECtHR contrapose Arts. 7 (right to respect for private life) and 11 (right to freedom of expression) of CFRUE.

Paragraph 21 of the 2004 von Hannover Case v. Germany, the Hamburg Court of Appeal acknowledged that being subject to constant photographic ‘surveillance’ made her life difficult but that it was deemed as of interest to the public.

On appeal, the Federal Court of Justice partially allowed the Princess’s appeal where they state that even figures deemed “par excellence”⁶⁷ “(…) were entitled to respect for their private life and this was not limited to their home but also covered the publication of photos.

Outside of their home, however, they could not rely on the protection of their privacy unless they had retired to a public place”⁶⁸, this meaning that their scope of privacy and private lives ended where they could easily be watched, something that ‘comes with the job’ one might say.

The Princess was the applicant of several cases based on various sets of photographs that were taken over the years, some even including her children. Although she was never granted a ‘full win’, she had small victories, such as the aforementioned, but the court also stated that, given her title, the way she behaved in public mattered, as it is in the legitimate interest of the public.

Paragraph 50 of the mentioned case is of high relevance, not only in this Chapter but to the case study that will be presented in the upcoming Chapter, that photographs of the Princess going about her life, in activities like skiing and playing tennis, the court deemed that these are part of her private life and safeguarded by Art. 8, “because they included aspects of her identity and interfered with her ability to develop relationships with others”⁶⁹. This asserted that certain public situations and interactions are still within the scope of one’s private lives, as they are part of humans as social beings. Paragraph 57 highlights the need for safeguard not only to one’s private life, but the interactions amongst people, and that, as commonly

67 As someone that should be looked up to, with exemplary behaviour.

68 ECtHR; Application Nr. 59320/00; Von Hannover v. Germany; 2004; par. 23; available on:

https://hudoc.echr.coe.int/fre?i=001-61853.

69 NEWELL, Bryce Clayton, Public Places, Private Lives: Balancing of Privacy and Freedom of Expression in the United Kingdom; Proceedings of the American Society for Information Science; Vol. 51 Issue 1; 2014;

pg. 6.

33 said “a picture is worth a thousand words”, this meaning that photographs can make or break the opinion about someone, sometimes erroneously, but they are capable of shaping the idea one has about the other based on it, and sometimes even publicizing private moments.

As clear with the above examples, the publication of photographs can be a triggering moment as they can seriously infringe someone’s private rights, as they might be capturing private moments – this can not only lead to erroneous ideas but also to broadcasting moments that show intimate information. “(…) The publication of photographs is often regarded as a particularly serious infringement of privacy rights, to some extent governed by discrete principles; their publication does not usually disseminate ideas, but provides personal or intimate information”⁷⁰.

Following the train of thought of Gavin Phillipson⁷¹, if one were to do a reductive interpretation of Art. 8, then the harassment and the constant capturing of the lives of famous⁷² people would mean that the right to a private life would be constantly breached.

A public figure is described by the Cambridge dictionary as “a famous person who is often written about in newspapers and magazines or is often on television or the radio”⁷³. Even more important than this is the one given by the Council of Europe Parliamentary Assembly in 1998, reading that “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”⁷⁴.

70 BARENDT, Eric: Balancing Freedom of Expression and Privacy: The Jurisprudence of the Strasbourg Court; Journal of Media Law; Vol. 1 Issue 1; 2009; pg. 69 about von Hannover v. Germany.

71 in PHILLIPSON, Gavin; Leveson, the Public Interest and Press Freedom; Journal of Media Law 220-240,

2013

72 Here used as a broad term, to be interpreted as including high profile members of society, such as politicians and members of royalty and the likes, and celebrities.

73 Cambridge Dictionary, definition available on https://dictionary.cambridge.org/pt/dicionario/ingles-portugues/public-figure , accessed on 12/04/2022.

74 Council of Europe Parliamentary Assembly Resolution; 1998; par. 7 “(…) Considered that anyone, even if they are known to the general public, must be able to enjoy a legitimate expectation' of privacy. Increased vigilance in protecting private life, it stressed, is necessary to contend with new communication technologies which make it possible to store and reproduce personal data, adding that 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” ; available on:

Chapter III – Legitimate Interest and the Media

34 The ECtHR, in the Von Hannover case, noted that⁷⁵ everyone should be able to have a legitimate expectation of privacy, however, once again brought by technological advancements, they should be able to estimate whether they are in a ‘safe space’, without expected external interference, or not.

Despite this, Beate Rudolph stated that “These examples show that the decisive criterion is not a person’s status as politician or nonpolitician but whether a person’s public activities create a legitimate public interest in the information in question. This approach can be found in the judgment where the Court combines the ‘‘public discourse’’ factor with that of the ‘‘legitimate expectation’’ of privacy”⁷⁶.