Can a man
participating in a gay parade, to celebrate his sexuality with the
world at large, claim he has a right not to be seen? It would appear
the answer is “yes” in Germany, following a ruling by a Munich County
Court in August this year.
The court awarded a gay man £3,000 in
damages and found that the publisher of a Munich tabloid, which
published a photograph of him taken at the Christopher Street Day
festival in Wüerzburg, had acted in breach of the individual’s
fundamental right to privacy.
The German man was photographed
while caught in an intimate embrace with another man at the festival in
August 2002. The snap was then sold to the Munich tabloid and, almost
two years later, was published as an illustration, which covered almost
half a page, to a story entitled, “This is how gays and lesbians live
in Munich”.
As the man’s sexuality was unknown to his family and
work colleagues, the judge took the view that exposing him in such a
way was unacceptable. The key factors influencing the court’s decision
were that the photograph had been taken without consent and published
out of context. The court held that publication would only have been
permitted, if at all, had the photograph been published as part of a
report about and immediately after the Wüerzburg event. Mere
participation in the parade did not provide a general authorisation to
publish a photograph with a report on the topic of homosexuality
detached from time, place and context. In any event, the man’s consent
was required in order to print a close-up.
The ruling by the
European Court of Human Rights last year in the Princess Caroline of
Monaco case, Von Hannover v Germany (2004), laid down the rule that, if
photographs contain private information then the court will favour the
Article 8 right to privacy over the right to free speech in Article 10,
unless the photographs contribute to a debate of general public
interest. The court held the photographs of Princess Caroline, showing
scenes of her engaged in activities in public places, but of a purely
private nature, did not contribute to any public debate. The context
was also considered – the court noting that the Princess did not
consent nor did she know she was being photographed.
The national
courts of the signatory member states to the European Convention,
including the UK, are not permitted to act in a way which is
incompatible with a convention right, and so have to take account of
the European Court’s decisions. Therefore, we may well start to see a
trend of cases, similar to the decision of the Munich court, here in
the UK. However, this special treatment of photographs is not
particularly new. In Theakston v MGN Ltd (2002), Ousley J observed that
the courts have consistently recognised that photographs can be
particularly intrusive, and so have showed a high degree of willingness
to prevent their publication where taken without consent. This will be
particularly so where the person exposed has not before been in the
public eye (like the German man in the parade), where it may prove
difficult to argue it is in the public interest to favour the
publisher’s freedom of expression over the individual’s privacy.
Newspapers
should carefully consider the use of photographs of individuals in
parades or other public places, especially where close-ups are taken
without consent or where they are to be used out of context.
Simon Bourn is a media lawyer at European law firm Taylor Wessing
Email pged@pressgazette.co.uk to point out mistakes, provide story tips or send in a letter for publication on our "Letters Page" blog
