PRIVATE LIFE AND THE MARGIN OF APPRECIATION, INTRODUCTORY NOTE TO THE EUROPEAN COURT OF HUMAN RIGHTS: ALEX SPRINGER AG V. GERMANY AND VON HANNOVER V. GERMANY (NO. 2)

摘要

Two recent cases before the European Court of Human Rights ("ECtHR") - both originating in Germany - have further elucidated the balancing test required in cases where personality rights and freedom of the press conflict. In Von Hannover v. Germany (No. 2), the ECtHR determined the scope of judicial freedom in national courts in balancing the protection for private life under Article 8 and the freedom of the press under Article 10 of the European Convention on Human Rights ("ECHR" or "Convention").2 In short, the ECtHR endorsed the German doctrine of "a person of contemporary history" and concluded that human rights law under the Convention would not bar a national court from exercising its own balancing test provided that certain criteria are observed. In Alex Springer AG v. Germany, the Court asserted that Article 10 of the ECHR had been breached by the application of German tort law (Article 823 of the German Civil Code) because German courts had underestimated the impact of Article 10. The Court drew a distinction - particularly between an obligation by the media to keep secret the identity of an (alleged) offender, who is a well-known TV actor - where details pertaining to a public prosecution were already in the public domain, and cases where information about the misconduct of a celebrity was acquired by unlawful means or in bad faith.