Freedom of press: Balancing the right of expression and the right to privacy

Axel Springer AG v Germany [2012] ECHR 227 (7 February 2012)

Summary

The European Court of Human Rights has allowed an appeal by a newspaper publisher against an injunction preventing it from reporting details of criminal proceedings brought against a television actor. The Grand Chamber of the Court found that the injunction constituted an unjustifiable interference with the right to freedom of expression under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Facts

Axel Springer AG published two newspaper articles reporting on the arrest and conviction of a German television actor on unlawful cocaine possession charges.

The actor sought and was granted injunctions by the Hamburg Regional Court that prevented the publisher from further publishing the articles. The injunctions were granted on the basis that they articles constituted a serious interference with the actor’s right to the protection of privacy and reputation under the German Civil Code. The publisher, having unsuccessfully appealed to various German appellate courts, sought reprieve from the European Court of Human Rights.

Decision

The Court overturned the decisions of the German courts, finding that the granting of the injunctions contravened article 10 of the Convention, as they constituted an unnecessary interference with the publisher’s right to freedom of expression.

Article 10(1) of the Convention provides that “everyone has the right to freedom of expression”. Exceptions to this right are set out in article 10(2), which provides that the exercise of the right “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…”

The Court noted that there was no dispute that the injunctions interfered with the publisher’s right to freedom of expression, that they were prescribed by law and that they granted for the protection of the reputation of the actor. The primary dispute before the Court was therefore, whether the injunctions were “necessary in a democratic society”. The Court also considered the interaction between article 10 and article 8 of the Convention, the latter of which provides that “everyone has the right to respect for his private… life”.

The Court stated that both article 8 and 10 must be given “equal respect” and the case required the Court to determine whether the German courts had struck a fair balance between the two.  However, it noted that the exceptions to the right of freedom of expression “must… be construed strictly, and the need for any restrictions must be established convincingly”.  In particular, the Court noted that the press and the media have an “essential role… in a democratic society” and that they have a duty to “impart… information and ideas on all matters of public interest… This duty extends to the reporting and commenting on court proceedings”.

The Court noted that whilst article 8 provides a right to the protection of reputation and against defamatory statements, the protection would only be activated where the “attack… attain[s] a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life”. Furthermore, the Court noted that the protection under article 8 could not be used where the conduct was “the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence”.

In determining whether the injunctions were “necessary in a democratic society”, the Court further considered a number of factors to be considered when balancing article 8 and article 10 of the Convention:

  • whether the publication made a contribution to a debate of general interest;
  • the extent to which the person was known by the public and the subject matter of the publication, in particular, whether the person is a public figure or a private individual;
  • the prior public conduct of the person in prior to the publication;
  • the method in which the information contained in the publication was obtained and its veracity;
  • the content, form and consequences of the publication; and
  • the severity of the sanction imposed on the publisher.

The Court found that each factor, on balance, tended to favour the publisher’s right to freedom of expression over the actor’s right to the protection of his privacy. Specifically, the Court found that:

  • the public generally had an interest in being informed about criminal proceedings;
  • the actor was well known and the arrest had occurred at a large public gathering;
  • the actor had “actively sought the limelight” and revealed parts of his private life in the past;
  • the information published had been confirmed by the public prosecutor to other media outlets;
  • the content and form the publication were not controversial and the publication did not have serious consequences for the actor; and
  • the effect of the injunctions were “capable of having a chilling effect” on the publisher and were unjustified given the above factors.

Relevance to the Victorian Charter

The Victorian Charter contains similar provisions to articles 8 and 10 of the European Convention.   Section 13 of the Charter provides protections in relation to privacy and reputation.  Section 15 of the Charter provides for the right of freedom of expression, which includes the “freedom to seek, receive and impart information and ideas of all kinds”.  Lawful restrictions are contemplated in Section 15(3). The Axel-Springer decision (and in particular, the Court’s list of factors to be weighed) would likely provide helpful guidance to Victorian courts considering the balancing of the media’s right to freedom of expression and an individual’s right to privacy.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2012/227.html

Daniel Bui is a Solicitor with the Mallesons Stephen Jaques Human Rights Law Group

MichelleBennettDemocratic Freedoms, Privacy