Lillo-Stenberg & Sæther v Norway: Paparazzi Photographs and Article 8

Reference: Application No.13258/09, [2014] ECHR 59 Court: European Court of Human Rights (First Section)

Date of Judgment: 16 Jan 2014

The applicants were a musician and an actress both of whom were well known in Norway. On 20 August 2005, the applicants married in a private ceremony which took place outdoors on an islet south of Oslo.

The weekly magazine Se og Hør (the “magazine”) published an article about the wedding which included six photographs, four of which featured the bride, groom and guests at various stages throughout the wedding but none taken during the actual ceremony. These four photos had been taken with a zoom lens from about 250 metres away from the islet. There were also two old photographs: one of the applicants framed in a heart and one of the second applicant with the applicants’ young son attending a music festival one month earlier.

The article itself described the ceremony stating, inter alia, that it was touching and that several guests could not hold back their tears when the bride arrived on a small boat, greeted by a male choir. The article also stated that the applicants’ manager had informed the magazine that the applicants did not wish to comment on their wedding.

In 2006, the applicants successfully brought compensation proceedings before the Oslo District Court. After an unsuccessful appeal to the Borgarting High Court in February 2008, the magazine appealed again to the Supreme Court which, by judgment in September 2008, found against the applicants by three votes to two.

The Supreme Court acknowledged that, while both applicants were well-known figures, neither of them carried out in public function or had a role at any public body. Therefore, it was accepted that the provisions of Article 10 had no particular weight in this case and that the article had a “purely entertainment value”.

Nonetheless, the majority held that there had been no violation of the applicants’ privacy. Whilst they appreciated that a wedding is “a very personal act”, they added that it also had a public side. They stressed that it was in the magazine’s favour that it had not published any photographs of the ceremony itself which would have been of more personal significance. The majority also placed emphasis on the fact that the article had been written in a neutral form and did not contain anything which was unfavourable to or critical of the couple.

The majority also attached significance to the fact that the islet was accessible to the public and the way in which the wedding had been conducted, suggesting that “many of the arrangements were such as to attract attention from third parties”. They held that whilst all individuals – including celebrities – are entitled to protection against being photographed, the “spectacular” nature of the ceremony should be taken into account and suggested that things may have been different if the wedding had taken place in a closed off area where the bride and groom had reason to believe that they would not be observed.

The minority accepted that whilst there was no reason in principle that the press should not be able to report on a wedding ceremony that took place in full public view, this was not such a case and, in any event, the article in the magazine had gone further than this in describing in words and pictures details of the arrangements. The fact that the islet was accessible to the public did not prevent this being a private event as it followed from von Hannover that protection of privacy also applies to places to which the public has access. The minority also felt that the article did not contribute to a debate of public interest describing it as “a celebrity article written for the sole purpose of entertainment” which did not override the affected parties’ desire to protect their privacy.

ECHR Judgment

The European Court of Human Rights had to decide whether the Supreme Court’s judgment breached the applicants’ right to respect for their private life under Article 8 of the Convention.

The ECHR started from the premise that a fair balance was required to be struck between the applicants’ right to the protection of their private life under Article 8 and the publisher’s right to freedom of expression under Article 10. The Court referred to the guidance set out in the cases Von Hannover v Germany (no. 2) and Axel Springer AG v Germany which identified a number of criteria to be considered when balancing the two competing rights and then subsequently went on to apply these criteria to the facts of the case:

(i) Contribution to a debate of general interest

The Court pointed out that “it has recognised the existence of such an interest not only where the publication concerned political issues or crimes, but also where it concerned sporting issues or performing artists”.

The Court agreed with the majority’s reasoning that a wedding has a public side and that was sufficient to conclude that there was an element of general interest about the wedding.

(ii) How well known is the person concerned and what is the subject of the report?

This, the Court said, was related to the criterion of general interest. It was accepted that the applicants had no public community function but they were well known performing artists and therefore public figures.

(iii) Prior conduct of the person concerned

There was no information available to the Court about the applicants’ conduct prior to the publication of the article. However, the Court observed that “the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving the party concerned of all protection against publication of the article and the photographs at issue.” It added that the right to protection of privacy “is no weaker for well-known cultural personalities than it is for others.”

(iv) Method of obtaining the information and its veracity/circumstances in which the photographs were taken

It was accepted that the applicants had not consented to the publication of the photographs or the article. The Court affirmed the Supreme Court’s suggestion that “the situation would have been different if the photographs had been of events taking place in a closed area.”

(v) Content, form and consequences of the publication

The Court accepted the Supreme Court’s view that neither the article nor the photographs contained anything negative or critical about the applicants. The Court also accepted that weight should be given to the fact that the wedding was conducted in an area accessible to the public and that the magazine did not publish any photographs of the ceremony itself which “would clearly have had more personal significance”.

Comment

This decision demonstrates the ECHR’s reluctance to interfere with the findings of national courts in privacy challenges. In particular, the Court made constant reference to the “margin of appreciation” enjoyed by the national courts when balancing competing interests.

However, the decision of the Court in concluding that the Norwegian Supreme Court did not fail to comply with its obligations under Article 8 of the Convention is somewhat surprising in light of the balancing act carried out.

Factor (i): The Supreme Court acknowledged that the article had “purely entertainment” value and explicitly stated that “the provisions of Article 10 have no particular weight”. The ECHR’s argument that a wedding has a “public side” and that therefore there is an element of general interest seems decidedly fragile. Even if this reasoning is accepted, the balance still arguably favours Article 8.

Factor (ii): This was closely linked to factor (i) and although the Court (somewhat worryingly) held that because the applicants were well-known performing artists they should therefore be considered public figures, the balance between Articles 8 and 10 appears even.

Factor (iii): Once more, the balance here seems to tip slightly in favour of Article 8.

Factor (iv): This clearly favours Article 8 as the photographs were taken without permission from a long distance so as to avoid detection. In any event, the fact that the area was publicly accessible should not be a decisive factor following Von Hannover.

Factor (v): Whilst the Court stressed that the article was not “unfavourable” to the applicants, this is not a relevant consideration when considering privacy issues and none of the Court’s judgment suggest that Article 10 should be favoured here.

On the Supreme Court’s own reasoning, it seems that it should have favoured the applicants and upheld their Article 8 rights. The article formed part of what seems to simply be “entertainment journalism” which did not contribute to a debate of general interest.

Whether the English courts would reach a similar conclusion if a similar article were to be published in this jurisdiction is – at the very least – open to question.