The Right to Abuse: On the Limits of Media Intrusion into Private Life

With the development of modern information technologies and communications services, as well as in light of the government’s increased efforts to ensure public safety, we find ourselves under the watchful eye of photo and video cameras practically every minute on the streets, on public transportation, at gas stations, in stores, restaurants, other recreational venues, and public spaces. Moreover, the entities collecting photo and video information about us include government agencies, private companies, journalists, and private individuals.

Under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which is part of our national legislation, everyone is guaranteed the right to respect for their private and family life.

A similar right is enshrined in other international treaties—Article 12 of the Universal Declaration of Human Rights (no one shall be subjected to arbitrary interference with his private and family life) and Article 17 of the International Covenant on Civil and Political Rights (no one shall be subjected to arbitrary or unlawful interference with his or her private and family life).

The right to privacy is also guaranteed by Article 32 of the Constitution of Ukraine—no one may be subjected to interference in their private and family life; the collection, storage, use, and dissemination of confidential information about a person without their consent are prohibited, except in cases specified by law and solely in the interests of national security, economic well-being, and human rights.

Article 301 of the Civil Code of Ukraine, which enshrines the right to privacy and the confidentiality of private life, establishes that an individual has the right to determine their own private life and the extent to which others may be privy to it, and also has the right to keep the circumstances of their personal life confidential.

Furthermore, pursuant to Article 302 of the Civil Code of Ukraine, the collection, storage, use, and dissemination of information about a natural person’s private life without their consent are prohibited, except in cases specified by law, and only in the interests of national security, economic well-being, and human rights.

As for the definition of the term “private life” itself, the European Court of Human Rights has repeatedly emphasized that the concept of “private life” is a fairly broad term, and in its judgment in the case of “Von Hannover v. Germany” (No. 59320/00), it noted that the concept of private life encompasses elements related to personal data about an individual, such as a person’s name and likeness. Furthermore, according to the Court, the sphere of private life encompasses a person’s physical and psychological integrity; the guarantee provided by Article 8 of the Convention is primarily aimed at ensuring the development of each person’s individuality, free from external interference, in their relationships with others. Thus, even in the public sphere, there exists an area of human interaction with others that may fall within the sphere of “private life” (§50). With regard to photographs, the Court noted that a person’s image is one of the main attributes of their personality, as it reveals unique personal characteristics and distinguishes one person from others. The right to protect one’s image is thus one of the key components of personal development. It primarily entails an individual’s right to control the use of their image, including the right to refuse its publication (Von Hannover v. Germany No. 2 (Nos. 40660/08 and 60641/08), § 96).

As for the protection of an individual’s right to their “image” under our national legislation, the protection of the interests of the person depicted in a photograph is governed by Article 308 of the Civil Code of Ukraine, according to which a photograph depicting a natural person may be publicly displayed, reproduced, or distributed only with that person’s consent.

Similarly, pursuant to the provisions of Article 307 of the Civil Code of Ukraine, the person’s consent is also required for photographing, filming, or videotaping them. However, a person who has consented to such filming may demand that the public display be discontinued to the extent that it pertains to their private life.

At the same time, an exception to this rule is established: consent to filming is deemed to have been obtained if such filming takes place openly on the street, at gatherings, conferences, rallies, and other public events.

At the same time, one of the other fundamental human rights is the right to freedom of expression, which includes, in particular, the freedom to gather, receive, and disseminate information (Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 19 of the Universal Declaration of Human Rights, and Article 19 of the International Covenant on Civil and Political Rights).

In our legislation, the right to information is enshrined in Article 34 of the Constitution of Ukraine (everyone is guaranteed the right to freedom of thought and speech, and to the free expression of their views and beliefs), Article 302 of the Civil Code of Ukraine (an individual has the right to freely collect, store, use, and disseminate information), Article 5 of the Law of Ukraine “On Information” (everyone has the right to information, which includes the ability to freely obtain, use, disseminate, store, and protect information necessary for the exercise of their rights, freedoms, and legitimate interests).

How can the right balance be struck between the right to information and the right to privacy in cases where members of the Ukrainian Parliament, officials, politicians, and other public figures who are sitting alone at a table in a restaurant, relaxing in luxury hotels at foreign resorts, or staying in other public places?

On the one hand, based on the provisions of national civil law, the right to privacy is not violated in such cases, since the person was “caught” in a public place, and therefore, no permission to take photos is required. On the other hand, this is precisely what some members of the journalistic profession often abuse, sometimes allowing themselves to go on “photo hunts” for interesting subjects who are in completely private places (on their own yachts, at private parties, in secluded vacation spots)—that is, in places where a person expects their privacy to be respected. Depending on the circumstances, such intrusion may be interpreted as a violation of the right to privacy.

It is clear that the publication of photographs or video footage of such public figures—which depict their behavior, habits, lifestyle, and other specific aspects of their personal lives—is aimed at compromising them, sparking heated public debates, or boosting media ratings. However, it should be noted that public figures must be prepared for the fact that their right to privacy is in a more vulnerable position, since their private lives, compared to those of ordinary individuals, attract heightened public interest.

In its Resolution No. 1165 of December 25, 2008 (1998), the Parliamentary Assembly of the Council of Europe noted that public figures are primarily the victims of invasions of privacy, as details of their lives are a strong sales draw. At the same time, public figures must acknowledge that the special position they often choose to occupy in society automatically leads to increased public scrutiny of their private lives. In this context, public figures include those who hold public office and/or use public resources, as well as all those who play a certain role in public life, whether in politics, the economy, the arts, the social sphere, sports, or any other field.

The Constitutional Court of Ukraine are also noted by the Constitutional Court of Ukraine in its decision in Case No. 2-rp/2012 dated January 20, 2012. In support of this conclusion, the Constitutional Court of Ukraine states that the public nature of both the bodies themselves — entities exercising public authority — and their officials requires the disclosure of certain information to shape public opinion regarding trust in the government and to uphold its authority in society.

In striking a balance between the fundamental rights to freedom of expression and to respect for private life— that is, the public’s right to receive information and an individual’s legitimate interest in protecting their private sphere from the attention of others, the European Court of Human Rights applies a series of criteria formulated in its case law. 

Thus, in the case of “Von Hannover v. Germany” (No. 59320/00), based on an application filed with the ECHR against the Federal Republic of Germany, the applicant—a subject of Monaco and the eldest daughter of Prince Rainier III of Monaco— Caroline von Hannover, argued that the decisions of the German courts in her case violated her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The applicant claimed that as soon as she left her home, she was immediately hounded by paparazzi who tracked her every move on a daily basis—whether she was crossing the street, picking up her children from school, shopping, taking a walk, exercising, or relaxing. In her view, the protection of the private life of a public figure such as herself under German law is minimal, because the concept of a “secluded place,” as defined by the Federal Supreme Court and the Federal Constitutional Court of Germany, is very narrow in this regard. Moreover, in order to benefit from such protection, she had to bear the burden of proving each time that she was in a secluded place. Consequently, she was deprived of any privacy and could not move about freely without becoming a target for the paparazzi.

In this case, the Court recalled that freedom of expression is one of the fundamental principles of a democratic society, and that the press plays an essential role in a democratic society. Although the press must not cross certain boundaries—particularly with regard to the reputation and rights of others—it is nevertheless obligated to convey information and ideas on all matters of public interest in ways that do not conflict with its duties and responsibilities. Journalistic freedom also entails the possibility of using a certain degree of exaggeration or even provocation (§58).

However, the Court noted that the decisive factor in striking a balance between the protection of privacy and freedom of expression is whether the published articles or photographs contribute to a debate that is in the public interest. The Court concluded that in this case, the publications do not contribute anything of this nature, since the applicant does not hold any official position, and the photographs and articles concern exclusively details of her private life. Furthermore, the Court considers that the public has no legitimate interest in knowing where the applicant is or how she generally conducts herself in her private life, even if she appears in places that cannot always be described as secluded or deserted, despite the fact that she is well known to the public. Even if there is any public interest—such as the magazines’ commercial interest—in publishing these photographs and articles, in this case, in the Court’s view, such interests must be subordinated to the applicant’s right to effective protection of her private life.

Thus, the ECHR found a violation of Article 8 of the Convention, given that, contrary to the aforementioned factors and the margins of appreciation in this area, the German courts failed to strike a fair balance between the competing interests.

Subsequently, the ECHR expanded the list of criteria it uses when striking a balance between the protection of private life and freedom of expression.

For example, in the case of “Axel Springer AG v. Germany” (No. 39954/08), the ECHR applied the following criteria:

1. The contribution of photographs or articles to a debate of public interest.

The ECHR notes that determining what constitutes a matter of public interest depends on the circumstances of the case. At the same time, the ECHR recalls that it has recognized the existence of such an interest not only when publications concerned political issues or crimes, but also when they concerned matters related to sports or well-known artists.

2. How well-known is the person concerned, and what is the subject of the publication? The ECHR notes that the role or functions of the person concerned and the nature of the activities that were the subject of the publication and/or photographs are another important criterion related to the previous one. In this regard, a distinction must be made between private individuals and persons acting in a public capacity as political or public figures. Accordingly, while a private individual who is not known to the public may claim special protection of their right to privacy, this does not apply to public figures. A fundamental distinction must be made between published facts that can contribute to debate in a democratic society—such as those concerning politicians in the performance of their official duties—and information about the private life of a person who does not hold such a position. Furthermore, although in certain exceptional circumstances the public’s right to information may extend even to aspects of the private lives of public figures—particularly when politicians are involved— this is not the case when the published photographs and comments relate exclusively to details of a person’s private life (even if the person concerned is fairly well known to the public) and are intended solely to satisfy the curiosity of a specific readership regarding those details.

- The conduct of the person concerned prior to publication

According to the ECHR, the person’s conduct prior to the publication of the article or the fact that the photographs and related information had already been published previously are also factors that must be taken into account. Nevertheless, the mere fact of having cooperated with the press in the past cannot serve as a basis for depriving the person concerned of any protection against the publication of the disputed articles or photographs.

3. The manner in which the information was obtained and its reliability.

The ECHR notes that the manner in which the information was obtained and its reliability are also important factors. Indeed, the Court has held that the guarantee afforded to journalists under Article 10 in connection with the dissemination of information on matters of public interest is subject to the condition that they act in good faith and on an accurate factual basis, providing “reliable and accurate” information in accordance with journalistic ethics.

4. Content, form, and consequences of publication.

The ECHR notes that the manner in which a photograph or article is published, and the way in which a person is portrayed in the photograph or article, are also important. In addition, the extent of the article’s and photograph’s circulation may also be a relevant factor, depending on whether the newspaper is national or local, and whether it has a large or limited circulation.

5. The severity of the imposed penalty.

Finally, the ECHR notes that the nature and severity of the penalty imposed are also factors that must be taken into account when assessing the proportionality of the interference with the exercise of freedom of expression.

It should be noted that in 2012, the Grand Chamber of the ECHR considered a second complaint by Princess Caroline von Hannover and a complaint by her wife — Prince Ernst August von Hannover (“Von Hannover v. Germany” No. 2 (Nos. 40660/08, 60641/08). Alleging a violation of their right to respect for private life, they complained about the German courts’ refusal to issue an injunction prohibiting any further publication of photographs that had previously appeared in German magazines in 2002; however, the ECHR found no violation of Article 8 of the Convention, as it concluded that the national courts had properly fulfilled their positive obligations under Article 8 of the Convention.The ECHR noted that in this case, the national courts had taken into account the criteria set forth in the judgment in the case of “Von Hannover v. Germany” (No. 59320/00), rendered in response to the first complaint filed by Caroline von Hannover, and had carefully balanced the publishing companies’ right to freedom of expression against the applicants’ right to respect for private life, as they examined the circumstances under which the photographs were taken and attached fundamental importance to whether the photographs, taken in the context of the accompanying articles, contributed to a debate of public interest.