CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 7 février 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sBA727180 { width:35.3pt; display:inline-block } .s73514AE5 { margin-top:0pt; margin-bottom:0pt; text-indent:35.3pt } .s63B06C77 { width:35.3pt; text-indent:0pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sFC1B4D41 { margin-top:36pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s63E120F7 { margin-top:12pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt } .s98FBE5B1 { width:3.85pt; text-indent:0pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sBA19A6A3 { width:59.41pt; text-indent:0pt; display:inline-block } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .s1C95523D { width:98.76pt; text-indent:0pt; display:inline-block } .s174245BC { width:10.69pt; text-indent:0pt; display:inline-block } .sE0BAE19D { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt; page-break-inside:avoid } .s3695C9BF { width:82.08pt; text-indent:0pt; display:inline-block } .s2148ADC { width:183.44pt; text-indent:0pt; display:inline-block } .s16935426 { margin-top:36pt; margin-bottom:30pt; text-align:justify; font-size:14pt } .sF11CDCAF { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sAC7466F { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s48125EFE { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s76CF415B { page-break-before:always; clear:both } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s168049A { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify } .s5A00354 { margin-top:18pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; font-size:10pt } .s1D757DF6 { margin-top:18pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; font-size:10pt } .s450434BC { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; font-size:10pt } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sCC235651 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; font-size:10pt } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s93EDF1FF { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD107E55B { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:10pt } .s71BC72F4 { margin-top:18pt; margin-bottom:12pt; text-align:center; font-size:10pt } .s804EF768 { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s33CF098A { margin-top:42pt; margin-bottom:30pt; text-align:justify; font-size:14pt } .sD2857263 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sEBA8B701 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .sD5D4358A { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify } .s8B80EBE7 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify } .s47F00B80 { margin-top:12pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; font-size:10pt } .sD9E5CF0B { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; text-align:justify; font-size:10pt } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s6FDB9D1F { width:194.97pt; display:inline-block } .sAE540E25 { width:21.87pt; display:inline-block } .s7DB8BC41 { width:183.09pt; display:inline-block }     GRAND CHAMBER                   CASE OF VON HANNOVER v. GERMANY (No. 2)   (Applications nos. 40660/08 and 60641/08)               JUDGMENT         STRASBOURG   7 February 2012     In the case of Von Hannover v. Germany (no. 2), The European Court of Human Rights, sitting as a Grand Chamber composed of:   Nicolas Bratza, President ,   Jean-Paul Costa,   Françoise Tulkens,   Josep Casadevall,   Lech Garlicki,   Peer Lorenzen,   Karel Jungwiert,   Renate Jaeger,   Davíd Thór Björgvinsson,   Ján Šikuta,   Mark Villiger,   Luis López Guerra,   Mirjana Lazarova Trajkovska, Nona Tsotsoria,   Zdravka Kalaydjieva,   Mihai Poalelungi,   Kristina Pardalos, judges , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 13 October 2010 and on 7 December 2011, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in two applications (nos. 40660/08 and 60641/08) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Monegasque national, Princess Caroline von Hannover, and a German national, Prince Ernst August von Hannover (“the applicants”), on 22 August and 15 December 2008 respectively. 2.     The applicants alleged that the refusal by the German courts to grant an injunction against any further publication of photos of them infringed their right to respect for their private life as guaranteed by Article 8 of the Convention. 3.     The applications were initially allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 13 November 2008 a Chamber of that Section decided to give notice of application no. 40660/08 to the German Government (“the Government”). By virtue of Article 29 § 3 of the Convention, as worded at the relevant time, it also decided that the admissibility and merits of the case should be considered together. On 8 January 2009 the President of the Fifth Section decided to give notice of application no. 60641/08 to the Government. By virtue of Article 29 § 3 of the Convention, as worded at the relevant time, he also decided that the admissibility and merits of the case should be considered together. On 24   November 2009 a Chamber of the Fifth Section decided to join the two applications. On 30 March 2010 the Chamber, composed of Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Rait Maruste, Mark Villiger, Mirjana Lazarova Trajkovska and Zdravka Kalaydjieva, judges, and Claudia Westerdiek, Section Registrar, after deciding to join the present applications to the application Axel Springer AG v. Germany (no. 39954/08), also communicated by it on 13 November 2008 and concerning an injunction against the applicant company on publishing two reports on the arrest and criminal conviction of a television actor, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 4.     The composition of the Grand Chamber was determined according to the provisions of former Article 27 §§ 2 and 3 of the Convention (now Article 26 §§ 4 and 5) and Rule 24. On 3 November 2011 Jean-Paul Costa’s term as President of the Court came to an end. Nicolas Bratza succeeded him in that capacity and took over the presidency of the Grand Chamber in the present case (Rule 9 § 2). Mr Costa continued to sit following the expiry of his term of office, in accordance with Article 23 § 3 of the Convention and Rule 24 § 4. At the final deliberations Lech Garlicki and Nona Tsotsoria, substitute judges, replaced Rait Maruste and Christos Rozakis, who were unable to take part in the further consideration of the case (Rule   24 § 3). 5.     The President of the Grand Chamber decided to maintain the application of Article 29 § 3 of the Convention before the Grand Chamber with a view to a joint examination of the admissibility and merits of the applications. He also decided that the proceedings in the present cases should be conducted simultaneously with those in Axel Springer AG v. Germany (Rule 42 § 2). 6.     The applicants and the Government each filed observations on the admissibility and the merits of the case. The parties replied in writing to each other’s observations. 7.     In addition, third-party comments were received from the Association of German Magazine Publishers ( Verband Deutscher Zeitungsverleger ), from the publishing company that had published one of the photos in question, Ehrlich & Sohn GmbH & Co. KG, from the Media Lawyers Association, from the Media Legal Defence Initiative, from the International Press Institute and from the World Association of Newspapers and News Publishers, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties were given an opportunity to reply to those comments (Rule 44 § 5). 8.     Having been informed on 17 November 2008 of their right to submit observations, the Monegasque Government indicated to the Court that they did not intend to take part in the proceedings. After being informed of that right again on 31 March 2010, following the decision of the Chamber to relinquish jurisdiction in favour of the Grand Chamber, the Monegasque Government did not express an intention to take part in the proceedings. 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 13 October 2010 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Ms   A. Wittling-Vogel , Federal Ministry of Justice,   Agent , Mr   C. Walter , Professor of Public Law,   Counsel , Ms   A. von Ungern - Sternberg , Assistant, Mr   R. S ommerlatte, Federal Office for Culture , Mr   A. Maatsch, Judge of the Hamburg Regional Court,   Advisers ; (b)     for the applicants Mr   M . Prinz , member of the Hamburg Bar, Mr   M . Lehr , member of the Hamburg Bar,   Counsel , Ms   S . Lingens , Lawyer,   Adviser .   The Court heard addresses by Mr Walter and Mr Prinz. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicants, who are the elder daughter of the late Prince Rainier   III of Monaco and her husband, were born in 1957 and 1954 respectively and live in Monaco. A.     Background to the cases 11.     Since the early 1990s the first applicant has been trying – often through the courts – to prevent the publication of photos about her private life in the press. 12.     Two series of photos, published in 1993 and 1997 respectively in three German magazines and showing the first applicant with the actor Vincent Lindon or her husband, had been the subject of three sets of proceedings in the German courts and, in particular, leading judgments of the Federal Court of Justice of 19 December 1995 and of the Federal Constitutional Court of 15 December 1999 dismissing the first applicant’s claims. 13.     Those proceedings were the subject of the Von Hannover v. Germany judgment of 24 June 2004 (no. 59320/00, ECHR 2004 ‑ VI) in which the Court held that the court decisions had infringed the first applicant’s right to respect for her private life, a right guaranteed by Article   8 of the Convention. 14.     Regarding the reasoning of the domestic courts, the Court made the following findings in particular: “72.     The Court finds it hard to agree with the domestic courts’ interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society ‘ par excellence ’. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a ‘private’ individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions. In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one’s image. 73.     Lastly, the distinction drawn between figures of contemporary society ‘ par excellence ’ and ‘relatively’ public figures has to be clear and obvious so that, in a State governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press. 74.     The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant’s private life effectively. As a figure of contemporary society ‘ par excellence ’ she cannot – in the name of freedom of the press and the public interest – rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life. 75.     In the Court’s view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case, merely classifying the applicant as a figure of contemporary society ‘ par excellence ’ does not suffice to justify such an intrusion into her private life.” B.     The photos in issue 15.     Relying on the Court’s judgment in the first applicant’s case, the applicants subsequently brought several sets of proceedings in the civil courts seeking an injunction against any further publication of photos that had appeared in German magazines. 1.     The photos published in the magazine Frau im Spiegel 16.     The first three photos were published by the publishing company Ehrlich & Sohn GmbH & Co. KG in the magazine Frau im Spiegel . (a)     The first photo 17.     The first photo, which appeared in issue no. 9/02 of 20 February 2002, shows the applicants out for a walk during their skiing holiday in St   Moritz. It is accompanied by an article with the heading: “Prince Rainier – not home alone” (“ Fürst Rainier – Nicht allein zu Haus ”). The article reads as follows. “The first magnolia buds are flowering in the grounds of Monaco Palace – but Prince Rainier (78) appears to have no interest in the burgeoning spring. He goes for a walk outside with his daughter Stéphanie (37). She supports him as he walks along slowly. He is cold despite the sunshine. The old gentleman is weary. The Monegasques saw their prince for the last time three weeks ago at a circus festival. He had appeared bright and cheerful, walking along beside his daughter who was laughing. But since then he has not left the palace. Not even for the St Devota celebration held in honour of the national Patron Saint. The Principality is worried, as are Prince Rainier’s children. Prince Albert (who is currently taking part in the Olympic Games in Salt Lake City), Princess Caroline (on holiday in St Moritz with Prince Ernst August von Hannover) and Princess Stéphanie take it in turns to look after their father. He must not be left home alone when he is not well. Not without his children’s love.” A photo of Prince Rainier with his daughter Princess Stéphanie and a photo of Prince Albert of Monaco taken during the Olympic Games in Salt Lake City appeared on the same page. (b)     The second photo 18.     The second photo, which appeared in issue no. 9/03 of 20 February 2003, shows the applicants out for a walk in St Moritz. The caption says: “Ernst August von Hannover and his wife, Princess Caroline of Monaco, enjoy the sun and snow in St Moritz.” A small photo of Prince Albert and two photos of members of a European royal family appeared on the same page. The article accompanying the photos, bearing the heading “Royal fun in the snow”, is about how happy the persons photographed are to meet up in St Moritz. (c)     The third photo 19.     The third photo, which appeared in issue no. 12/04 of 11 March 2004, shows the applicants in a chair lift in Zürs am Arlberg during their skiing holiday. On the same page there is a small photo of Prince Rainier, the first applicant and Prince Albert, taken during the national holiday on 19   November and bearing the heading “The princess’s last appearance”. Another photo, taking up half the page, shows the first applicant at the Rose Ball. The three photos illustrate an article bearing the heading “Princess Caroline. The whole of Monaco awaits her”, of which the passages relevant to the present case read as follows. “Tickets for the Rose Ball, which will be held on 20 March in Monaco, have been selling for weeks. And the guests will be coming only for her: Princess Caroline von Hannover (47). She has not attended any official engagements since the national holiday ... She was not at the circus festival or the St Devota celebration held in honour of the patron saint of Monaco. By tradition, the eldest daughter of Prince Rainier (80) opens the annual ball. She has inherited this role from her mother, who died in an accident, and this ball is Caroline’s favourite ... The prince, who is seriously ill, has just come out of hospital after a heart operation and is still too weak to attend the ball. The welcome speech which he will be making in honour of the guests will be retransmitted via television cameras and projected onto a big screen. Princess Caroline and her husband [Prince] Ernst August von Hannover will open the Rose Ball with a waltz. They celebrated their fifth wedding anniversary together in January. And there was more cause for celebration in the von Hannover household: the prince turned 50 on 26   February. He celebrated his birthday with Caroline and some friends at the fashionable resort of St Moritz, glistening white in the snow. The couple were actually spending their holiday in Zürs am Arlberg, but for the birthday party they went down to the Palace Hotel in St Moritz for a few days.” 2.     The photo published in the magazine Frau Aktuell 20.     The publishing company WZV Westdeutsche Zeitschriftenverlag GmbH & Co. KG published in issue no. 9/02 of 20 February 2002 of the magazine Frau Aktuell the same photo (or a virtually identical one) as the one that had appeared the same day in the magazine Frau im Spiegel no.   9/02 (see paragraph 17 above). The article accompanying the photo in Frau Aktuell bears the heading: “That is genuine love. Princess Stéphanie. She is the only one looking after the sick prince.” The relevant passages of the article are worded as follows. “Her love life may appear unbridled. One thing is certain, though: as far as her father is concerned, Princess Stéphanie knows where her heart lies. While the rest of the family are travelling around the world, she has run to be at the side of Prince Rainier (78), who appears to be seriously ailing. She is the only one who takes care of the sick monarch. Stéphanie’s sister, Caroline (45), has taken a few days’ holiday with her husband Ernst August (48) and their daughter Alexandra (2) at the fashionable St   Moritz ski resort in Switzerland. Prince Albert, for his part, has been at the Olympic Games in Salt Lake City taking part in the four-man bobsleigh race. ‘For the fifth and last time,’ he said. From time to time he would disappear for a number of days. It is said that the prince has seen his heart-throb, Alicia Warlick (24), an American pole vaulter who is rumoured to become his future wife. [Prince Rainier], who hates being alone now, was very glad to see his younger daughter. Stéphanie has devoted a lot of time to him. She has been out on long walks with him and they have greatly confided in each other. ‘Rainier has relished the company of his younger daughter. When she is at his side he truly flourishes. During those moments he forgets that he is old and sick,’ say the Monegasques. ‘Stéphanie should come much more often.’” On the same page there is the photo of Princess Stéphanie with her father that had appeared the same day in the magazine Frau im Spiegel no. 9/02 (see paragraph 17 above), a headshot of her and two other photos, one of Prince Albert alone and the other of the prince with Alicia Warlick. C.     The proceedings in issue 1.     The proceedings instituted by the first applicant (a)     The first set of proceedings (i)     Judgment of the Regional Court of 29 April 2005 21.     On an unspecified date in 2004, the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the three photos by the Ehrlich & Sohn publishing company. 22.     In a judgment of 29 April 2005, the Regional Court granted the injunction on the ground that the first applicant had not consented to publication of the photos, which was a precondition under section 22 of the Copyright (Arts Domain) Act (hereafter “the Copyright Act” – see paragraph 70 below). The court stated, however, that even if consent were deemed unnecessary in the case of the first photo on the ground that it was an image from contemporary society ( Bildnis aus dem Bereich der Zeitgeschichte ) within the meaning of section 23(1)(1) of the same Act, publication of the photo was not justified. Under subsection 2 of that provision, publication of such an image was only lawful if it did not interfere with a legitimate interest of the person photographed. According to the court, the question as to whether there was such a legitimate interest had to be determined by balancing the interests of the person photographed against those of the public in being informed. 23.     The Regional Court found that in the present case it was the first applicant’s right to the protection of her personality rights that prevailed. In reaching that conclusion the Regional Court referred extensively to the Court’s judgment in Von Hannover . It found that the first applicant’s relationship with her father, regardless of the fact that he was ill, did not contribute to a debate of general interest to society especially as the first applicant was connected to the prince of a State of minor importance in international politics merely through a family tie and did not exercise any official function. 24.     The Regional Court stated that, whilst that reasoning was not entirely in keeping with the principles established by the Federal Constitutional Court, which did not recognise a legitimate interest unless the person photographed had retired to a secluded place away from the public eye, it was not bound by that precedent to the extent that it could not take into consideration the Court’s case-law on the subject. (ii)     Judgment of the Court of Appeal of 31 January 2006 25.     The publishing company appealed against that judgment. 26.     In a judgment of 31 January 2006, the Hamburg Court of Appeal set aside the judgment on the ground that the applicant’s right under Article 8 of the Convention had to yield to the fundamental rights of the press. It found that, whilst the articles were primarily of entertainment value, publication of the photos was nonetheless lawful in terms of the judgment of the Federal Constitutional Court of 15 December 1999 whose main legal reasoning ( tragende Erwägungen ) was binding on the Court of Appeal. It pointed out that public figures should certainly be protected from the risk of being photographed at any time and anywhere and seeing the photos subsequently published. However, in the Court of Appeal’s opinion, the legitimate interest of such figures, within the meaning of section 23(2) of the Copyright Act, should not result in the prohibition of any reporting on well ‑ known people outside their official appearances. In any event, the right to respect for private life did not require the banning of publication of photos taken in public places accessible to all and where the individual concerned was amongst many other people. (iii)     Judgment of the Federal Court of Justice of 6 March 2007 27.     The first applicant appealed on points of law against that judgment. 28.     In a judgment of 6 March 2007 (no. VI ZR 51/06), the Federal Court of Justice dismissed her appeal in respect of the first photo. With regard to the second and third photos, it upheld her appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court. 29.     The Federal Court of Justice found that the opinion of the Court of Appeal did not correspond to the concept of graduated protection ( abgestuftes Schutzkonzept ) that had been developed in the case-law on the basis of sections 22 and 23 of the Copyright Act and which it had clarified in a number of recent decisions delivered following the Von Hannover judgment and in response to the reservations of principle which the Court had expressed in that judgment. According to that new concept of protection, section 23(1) of the Copyright Act, which provided for an exception to the rule according to which a photo could not be published without the prior consent of the person concerned, took account of the public’s interest in being informed and of the freedom of the press. Accordingly, when assessing whether or not the impugned publication portrayed an aspect of contemporary society within the meaning of section   23(1)(1) of the Copyright Act, a balancing exercise had to be undertaken between the rights under Articles 1 § 1 and 2 § 1 of the Basic Law and Article 8 of the Convention on the one hand, and those under Article 5 § 1, second sentence, of the Basic Law and Article 10 of the Convention on the other hand. 30.     The Federal Court of Justice added that the Court’s criticism of the expression “figure of contemporary society par excellence ” ultimately concerned the determination of the conditions in which the media could report on well-known people such as these. It considered that, irrespective of the issue whether the first applicant should be regarded as a figure of contemporary society par excellence , she was in any case a well-known person who particularly attracted public attention. In the court’s view, that fact, combined with the fact that she had not been in a secluded place out of the public eye when the photos had been taken, was nonetheless insufficient to deprive her of protection of her private sphere. That conclusion was not only appropriate in the light of the Court’s ruling but also reflected a proper understanding of the concept of protection thus developed. 31.     Accordingly, the Federal Court of Justice found that the publication of images of persons who – on account of their importance in contemporary society – were in theory required, under section 23(1)(1) of the Copyright Act, to tolerate the publication of photos of themselves was nevertheless unlawful if the legitimate interests of the person concerned were infringed (section 23(2)). There could be no exception to the obligation to obtain the consent of the person in question unless the report in question concerned an important event of contemporary society. The expression “contemporary society” – and indeed the term “information value” – had to be interpreted in a broad sense and according to whether there was a public interest. It comprised any matter of general interest to society and included reports for entertainment purposes, which could also play a role in the formation of opinions, or even stimulate or influence these to a greater degree than purely factual information. 32.     Whilst the freedom of the press and the prohibition of censorship required the press to be able to decide for itself which subjects it intended to report on and what it intended to publish, the press was not exempt from the duty to weigh its interest in publishing the information against the protection of the privacy of the person concerned. The greater the information value for the general public, the more the right to protection had to yield. Conversely, where the interest in informing the public decreased, the importance of protecting the person concerned carried correspondingly greater weight. The reader’s interest in being entertained generally carried less weight than that of protecting privacy, in which case the reader’s interest did not merit protection. 33.     The Federal Court of Justice stated that, accordingly, even where persons who had hitherto been regarded as figures of contemporary society were concerned, consideration must be given to the question whether the report contributed to a factual debate ( mit Sachgehalt ) and whether the content went beyond a mere intention to satisfy public curiosity. In determining that question, there was nothing to prevent regard being had to how well the person concerned was known to the public. 34.     The Federal Court of Justice stressed that that manner of balancing the various interests at stake corresponded to the requirements of the Court regarding effective protection of the private sphere and the requirements of the freedom of the press, and that it did not conflict with the binding force of the judgment of the Federal Constitutional Court of 15 December 1999. Admittedly, that court had limited the protection afforded to the private sphere against the publication of unwanted photos to cases of spatial seclusion. That did not, however, prevent the courts – when balancing the various interests – from having more regard to the value of the information for the public. Furthermore, the Federal Constitutional Court had [recently] endorsed the balancing exercise undertaken by the Federal Court of Justice according to those criteria in a judgment concerning the second applicant (decision of 13 June 2006, no. 1 BvR 565/06). 35.     The Federal Court of Justice specified that as the determining criterion for the balancing exercise was the information value of the photo in question and as it had been published in the context of a written article, the content of the text accompanying the photo could not be ignored. 36.     Applying the criteria thus established to the case submitted to it, the Federal Court of Justice, beginning with the second and third photos, observed that the second photo showed the applicants in a busy street in St   Moritz during their skiing holiday. Whilst the press could, as a matter of principle, make its own decision regarding the content of its publications and the applicants had indeed been in a public place amongst other people, neither the article nor the photo related to an event of general interest or contemporary society. A celebrity’s holidays fell within the core area ( Kernbereich ) of his or her private sphere. The publication of the article and photo had been for entertainment purposes only and was not in any way relevant to matters of public interest, so could only be done with the first applicant’s consent. 37.     The Federal Court of Justice noted that the third photo showed the applicants in a chair lift in Zürs during their skiing holiday. Whilst the Rose Ball shortly to be held in Monaco, which was the subject of the article accompanying the photo, could possibly be regarded as an event of contemporary society that was a matter of general interest to society, there was no link between the photo and that event. The purpose of the photo had been to supplement the part of the article about the second applicant’s birthday party in St Moritz and the applicants’ skiing holiday in Zürs. Thus the information centred exclusively on the first applicant’s private life and served merely entertainment purposes. Accordingly, the third photo could not be published without the first applicant’s consent either. 38.     Regarding the first photo, the Federal Court of Justice observed that whilst it contained no information having any connection with an event of contemporary society or contributing to a debate of general interest, the same was not true of the accompanying text. Admittedly, the part about the first applicant’s skiing holiday did not concern an event of contemporary society or general interest, even interpreting those terms broadly. However, with regard to the prince’s health, the Federal Court of Justice found as follows: “The information also concerned the ill-health of the reigning Prince of Monaco. His ill-health was thus an event of contemporary society on which the press was entitled to report. The journalistic quality and the conception of the article are not decisive because the principle of the freedom of the press does not allow the applicability of a fundamental right to depend upon the quality of the press coverage or how the article is drafted. This also applies to the comments in the article on the conduct of members of the family during the prince’s illness, and, moreover, the applicant has not complained about the article in that respect. The photo in question supports and illustrates the information being conveyed.” 39.     The Federal Court of Justice concluded that, in those circumstances and having regard to the context of the report as a whole, the first applicant had no legitimate interest that could have opposed publication of the photo of the applicants out in the street. There had, in particular, been nothing about the photo itself that constituted a violation ( eigenständiger Verletzungseffekt ) and thus justified a different conclusion; nor was there anything to suggest that the photo had been taken surreptitiously or by using secret technical devices that rendered its publication unlawful. (iv)     Judgment of the Federal Constitutional Court of 26 February 2008 40.     In a judgment of 26 February 2008, the First Division ( Senat ) of the Federal Constitutional Court dismissed constitutional appeals lodged by the first applicant (no. 1 BvR 1626/07) and by the Ehrlich & Sohn GmbH & Co. KG publishing company (no. 1 BvR 1602/07) against the judgment of the Federal Court of Justice (no. VI ZR 51/06). In the same judgment it allowed a constitutional appeal (no. 1 BvR   1606/07) lodged by the Klambt-Verlag GmbH & Co. publishing company against an injunction, imposed by the Federal Court of Justice (judgment of 6 March 2007, no. VI ZR 52/06), on any further publication of a photo that had appeared in 7 Tage magazine showing the applicants on holiday in an unspecified location and accompanying a written and photographic report on the possibility of renting a holiday villa owned by the von Hannover family in Kenya. Those proceedings are the subject of a separate application by the first applicant to the Court (no. 8772/10). 41.     The Federal Constitutional Court observed, firstly, that the court decisions constituted an interference with the first applicant’s right to the protection of her personality rights guaranteed by Articles 1 § 1 and 2 § 1 of the Basic Law. There were limits on the protection afforded to that right and on the freedom of the press, however. The freedom of the press was subject to the restrictions laid down in sections 22 et seq. of the Copyright Act and Article 8 of the Convention, whilst the provisions of the Copyright Act and Article 10 of the Convention limited the right to the protection of personality rights. In the German legal order the Convention had the status of an ordinary federal law. At constitutional-law level, the rights and freedoms guaranteed by the Convention and the Court’s case-law served as guides to interpretation when determining the content and scope of a fundamental right. 42.     The Federal Constitutional Court reiterated the case-law of the Court regarding Articles 8 and 10 of the Convention and its own case-law on the different fundamental rights at stake by referring to the principles established in its leading judgment of 15 December 1999 ( Von Hannover , cited above, § 25). It added that in so far as an image did not itself make any contribution to the formation of public opinion, its information value had to be assessed in the context of the accompanying article. However, if that article was merely a pretext for publishing a photo of a well-known person, no contribution was made to the formation of public opinion and there were therefore no grounds for allowing the interest in publication to prevail over the protection of personality rights. 43.     The Federal Constitutional Court went on to say that, in order to determine the weight to be attached to the protection of personality rights, regard had to be had not only to the circumstances in which the photo had been taken, for example whether it had been taken surreptitiously or as a result of persistent hounding by photographers, but also to the situation in which the person concerned had been photographed and how he or she was portrayed. The right to protection of personality rights thus carried more weight where the photo showed details of the person’s private life that were not normally the subject of public discussion. The same was true where the person concerned could legitimately expect, having regard to the circumstances, that no photo would be published because he or she was in a private place ( räumliche Privatheit ), such as in a specially protected location. The right to protection of personality rights could also prevail over the interest in publication in cases other than those of spatial isolation, notably where the person concerned was pictured enjoying a moment of relaxation or letting go, freed from the constraints of professional or everyday life. 44.     The Federal Constitutional Court stated that importance had to be attached in that connection to the allocation of procedural obligations regarding the presentation of the facts and the burden of proof. It had to be ensured that neither the press nor the person being photographed was prevented from adducing proof of circumstances relevant for the balancing of the competing interests. Where the press intended to publish a photo without the consent of the person concerned, it could be required to substantiate the circumstances in which the photo had been taken in order to allow the courts to examine the question whether publication of the photo could be opposed on grounds of the legitimate expectations of the person photographed. 45.     The Federal Constitutional Court observed that it was the task of the civil courts to apply and interpret the provisions of civil law in the light of the fundamental rights at stake while having regard to the Convention. It added that its own role was limited to examining whether the lower courts had had sufficient regard to the impact of fundamental rights when interpreting and applying the law and when balancing the competing rights. Such was also the scope of the scrutiny of the Constitutional Court regarding the question whether the courts had fulfilled their obligation to incorporate the Court’s relevant case-law into the national legal order ( Teilrechtsordnung ). The fact that the court’s balancing exercise of the various rights in multi-polar disputes – that is, disputes involving the interests of several different persons – and complex ones could also result in a different outcome was not sufficient reason for requiring the Federal Constitutional Court to correct a court decision. However, there would be a violation of the Constitution if the protective scope ( Schutzbereich ) or extent of a fundamental right had been wrongly determined and the balancing exercise were accordingly flawed, or if the requirements under constitutional law or the Convention had not been duly taken into account. 46.     Applying those principles to the case submitted to it, the Federal Constitutional Court observed that the Federal Court of Justice and the criteria it had established were constitutionally unobjectionable. It considered in particular that nothing, from a constitutional-law perspective, had prevented the Federal Court of Justice from departing from its own established case-law in the field and developing a new concept of protection. The fact that it had not itself called into question, in its leading judgment of 15 December 1999, the former concept of protection established by the Federal Court of Justice merely meant that this had been in conformity with constitutional-law criteria. It did not mean, by extension, that a different concept could not meet those criteria. The Federal Court of Justice had not been prevented, in particular, from dispensing with the legal concept of “figure of contemporary society” and instead balancing the competing interests when examining the question whether a photo was an aspect of contemporary society and could accordingly be published without the consent of the person concerned (unless it interfered with a legitimate interest of the latter). 47.     Applying the criteria thus established to the photos in question, starting with the second and third ones on which an injunction had been imposed by the courts and then challenged by the publishing company Ehrlich & Sohn (see paragraph 40 above), the Federal Constitutional Court noted that the Federal Court of Justice had had regard to the fact that the second photo showed the applicant in a public place which was neither isolated nor out of public view. It had attached decisive weight, however, to the fact that the article concerned only the applicant’s skiing holiday, that is, a situation falling within the core area of private life and concerning the applicant’s need for peace and quiet, and the consequent lack of public interest other than satisfying public curiosity. Contrary to the submissions of the publishing company, the readers’ interest in the applicant’s fashionable ski suit did not amount to a public interest. Moreover, that aspect had not been mentioned anywhere in the article. 48.     In the opinion of the Federal Constitutional Court, the same conclusion had to be drawn with regard to the third photo whose publication had been challenged by the first applicant. There had been no public interest, beyond merely satisfying public curiosity, in the information contained in either the article commenting on the first applicant and her husband’s trip to St Moritz to celebrate the latter’s birthday or the photo showing them both in a chairlift. Whilst the article had also mentioned the Rose Ball – an event which, according to the Federal Court of Justice, could possibly be regarded as an aspect of contemporary society – no link had been made between that event and the photo. 49.     With regard to the first photo, the Federal Constitutional Court found that the Federal Court of Justice had had valid grounds for considering that the reigning Prince of Monaco’s ill-health was a matter of general interest and that the press had accordingly been entitled to report on the manner in which the prince’s children reconciled their obligations of family solidarity with the legitimate needs of their private life, among which was the desire to go on holiday. The conclusion reached by the Federal Court of Justice, according to which the photo that had been published had a sufficiently close link with the event described in the article, was constitutionally unobjectionable. 50.     The Federal Constitutional Court pointed out that the Federal Court of Justice had indicated that the protection of personality rights could prevail in cases where the photo in question had been taken in conditions that were particularly unfavourable for the person concerned, for example where it had been taken surreptitiously or following continual harassment by photographers. However, the publishing company had given details about how the photo had been taken and the first applicant had not complained before the lower civil courts or the Federal Court of Justice that those details were insufficient. In particular, she had not alleged that the photo had been taken in conditions that were unfavourable to her. 51.     The Federal Constitutional Court also dismissed the first applicant’s allegation that the Federal Court of Justice had disregarded or taken insufficient account of the Court’s case-law. Pointing out that a complaint of that nature could be raised in constitutional proceedings if it was based on a fundamental right guaranteed by the Basic Law, it observed that the Federal Court of Justice had taken account of the judgments delivered in Von Hannove