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Barnes Abstract

Global Institute for Freedom and Awareness

Collaborative Research on Institutional Dynamics in Open Societies

Outrageous Reasoning: von Hannover Deux et Trois

Robin Barnes, Executive Director, Global Institute for Freedom and Awareness, US

Von Hannover I, 2004 , was Cause Celebre: the French aphorism for famous lawsuit or surprising legal victory. As a matter of great social and political importance, the international community owes a great debt to Caroline Von Hannover, Princess of Monaco. Her longstanding determination prompted Europe's high court, in the original case of von Hannover v. Germany, to radically alter the extent to which the media can arbitrarily disrupt the private lives of the rich and famous.

Princess Caroline of Monaco won a landmark ruling from the European Court of Human Rights. The high court confirmed that the publishing of paparazzi photographs taken of the Princess and her acquaintances as she goes about her daily life, while performing no official business or public function and published without her consent was a violation of her right to privacy. There is little question that even following the death of Princess Diana, European publishers continued celebrity stalking apace. They followed von Hannover and her children, reported her daily habits, routines and whereabouts, and freely published photos of her friends and even her bodyguard as though she had willingly agreed to star in their print version of reality TV. Trapped in circular reasoning, their Barrister's claimed that by a mere accident of birth Caroline is the functional equivalent of a deer in their headlights forever more.

Von Hannover II, 2012, strayed from the earlier ruling. While the Princess of Monaco and her husband Ernst August were on holiday in St. Moritz and Zürs, German magazine publishers of Frau im Spiegel and Frau Aktuell commissioned and published a series of photographs between 2002 and 2004. One article featured her face as the cover. It described the ill-health of Princess Caroline's father, the late Prince Rainier III, by suggesting that she was off skiing while her father was holding on for dear life (attended by the only daughter who gave a damn). She sued for an injunction which the German Court denied. She then appealed to EU's Highest Court for relief.

On 7 Feb 2012, the justices of the European Court of Human Rights (Grand Chamber) in von Hannover v. Germany (No. 2) set forth five criteria they deemed relevant to balancing competing Article 8 (individual privacy) and Article 10 (free speech) rights. Those included an assessment of a publication's:

1. Contribution: value (if any) to a debate of general interest

2. Human Subject: notoriety of the person featured

3. Human Subject: prior conduct of the person featured

4. Impact: content, form and consequences of the publication

5. Impact: circumstances in which the photographs were taken

This five point standard was announced during Princess Caroline's appeal of a 2008 Bundesverfassungsgericht (German High Court) decision that latched onto the first criteria (long established in case law) to endorse exclusive editorial control and decision making for publishers seemingly without any, much less adequate, justification. The German court essentially conflated form with substance. According to its reasoning: any article approved by a publisher is deemed sufficient under law to meet the requisite demand for substance-- as meaningfully distinguished from articles that only serve to foment salacious gossip or criticize private choices under the guise of informing the public. Ignoring the intrusive nature of the wide-spread stalking that is the hallmark of tabloid photographers, the German court declared that: 'Entertainment can fulfil important social functions." Most notably, the role of form(ing) public opinion on questions of general interest topped their list. It seems doubtful that the public requires that sort of assistance or that press rights were developed with this in mind. However, bolstering the level of intrusion even further, the alleged value in the entertainment might according the opinion easily include … " entertaining reports concerning celebrities' private, everyday life, the social circles in which they move, and especially persons who are close to them ."

This reasoning is nothing short of Outrageous! By affirming that decision, the ECtHR aided Bundesverfassungsgericht's obliteration of all that was important under the ECHR as recognized in von Hannover I.

In von Hannover III, 2013, 7 Tage published an article in 2002 about the so-called trend among celebrities of renting out their holiday homes. Without dealing with statistics, pros, cons, or the benefit or burden (if any) on taxpayers, the German magazine instead chose to zero in on the von Hannover family villa, complete with a photograph of the Princess and her husband (taken elsewhere) displayed next to their vacation home on an island off the Kenyan coast. Princess Caroline's request for injunction against further publication of the photograph was denied. Even the level of detail surrounding the properties furnishings, daily rental cost and activities in the area had a kind of wholesale intrusion that belies the proffered justification for the article as an item dealing with a matter of general public interest but instead merely take s aim at the Princess as an act of revenge for her continued fight in the Courts (a pre-cursor of German publisher Bunte headlines on the changes in the couple's personal life).

The missing link in the Courts' reasoning is that publisher motives matter, the opinions in Campbell v. MGN set a fine example in this regard.