The publication of photographs in a magazine of the residences of a former German Minister and the freedom of expression of the press.

JUDGMENT 

Karl-Theodor zu Guttenberg v. Germany 18.07.2019 (no. 14047/16)

see here

SUMMARY 

Publication of residence photos of the family of the former German Minister. The Cologne Court of Appeal ruled that this publication did not just satisfy the public’s curiosity about the privacy of the applicant politician and his family but was related to the issue of a possible return to public life. According to the ECtHR, the German courts had reached a fair balance between the applicant’s right to respect for his private life and the freedom of expression of the magazine that had published the photographs. In view of the discretion afforded to the Contracting States in such cases by the Court, there was no reason to rebut the view of the German courts. No infringement of Article 8 of the ECHR.

PROVISION 

Article 8

PRINCIPAL FACTS

The applicant, Karl-Theodor zu Guttenberg, is a German national who was born in 1971 and lives in
Guttenberg (Germany).

A politician, Karl-Theodor zu Guttenberg was, among other capacities, Federal Minister for the
Economy and Technology and Federal Defence Minister. In 2011, following a case of plagiarism, he
resigned from his office and gave up his seat in parliament. In the summer of 2011 he moved with
his family to the USA.

On 17 April 2014 the weekly magazine Bunte published an article concerning his houses in Berlin and
in the USA. On 22 April 2014 Karl-Theodor zu Guttenberg and his wife asked the magazine to stop
publishing these photos with captions, but the magazine refused. The couple then referred the
matter to the Cologne Regional Court. In a provisional order of 15 May 2004, the court prohibited
any further publication of all the photos, with captions, showing the houses in question. On 14 July
2014 the magazine acknowledged the injunction on publication with the exception of three photos
showing the outside of houses together with the corresponding captions. In a judgment of 14
January 2015 the Regional Court confirmed its order in respect of the three photos, finding that
there was no overriding public interest in seeing them.

On 2 July 2015 the Cologne Court of Appeal quashed the judgment, while confirming that the
publication of the photos constituted an interference with the applicant’s right to the protection of
his personality rights, particularly in the private sphere. The Court of Appeal found that the
publication of the material in question did not only serve to satisfy the public’s curiosity about the
circumstances, including the financial situation, of Karl-Theodor zu Guttenberg and his wife, but was
also justified on account of his possible return to politics, in particular following his public
appearances in 2014. The Federal Constitutional Court decided not to allow an appeal by the
applicant, without giving reasons for its decision.

THE DECISION OF THE COURT

Article 8

The Court noted the Cologne Court of Appeal’s view that the publication had not merely satisfied the
public’s curiosity about the private life of Karl-Theodor zu Guttenberg and his family, but had also
related to the question of his possible return to public life. The domestic court had also taken
account of the high degree of notoriety of the applicant and his wife in the past and the ongoing
public interest in being informed about the couple’s life. Given the public duties previously held by
Karl-Theodor zu Guttenberg and the circumstances of his resignation, the Court concluded that he
was certainly a well-known public figure and therefore that he could not expect the same protection
of his private life as a private individual unknown to the public.

As to the content of the publication, the Court noted that the photos showed the old and new
residences of the applicant and his family seen from the front. As the Court of Appeal had found,
there was little risk of these houses being identified and disturbance thus being caused to the
applicant. One of the houses was only theoretically used as a home and the photo of the other
house showed only the façade visible from the garden, an area inaccessible to the public. Lastly, the
photos and their captions revealed few details about the life of Karl-Theodor zu Guttenberg and his
family.

The Court thus found that the Court of Appeal had struck a fair balance between the applicant’s
right to respect for his private life and the magazine’s freedom of expression. In view of the margin
of appreciation afforded to Contracting States in such matters, the Court saw no reason to substitute
its own opinion for that of the German courts.

The complaints were thus ill-founded and had to be rejected(echrcaselaw.com).

 


ECHRCaseLaw

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