The European Court of Human Rights has found that the privacy of a footballer’s children was sufficiently protected by the German government, despite repeated publication of photographs by two German magazines in breach of a court order.
The German government had fulfilled their positive obligations by providing the possibility of imposing fines on the publisher when in breach of the ban, and by providing an appeals procedure. This amounted to sufficient protection under Article 8, and the German courts were correct in ruling that additional compensation should not be awarded.
The case was decided on its specific facts. It is clear that the pixellation of the children’s faces played a key part in the court’s decision that there was no breach of Article 8.
In light of the UK Court of Appeal’s decision in Weller v Associated Newspapers Limited, the outcome of a similar case before the UK courts is uncertain. In Weller, publication of unpixellated photographs of Paul Weller’s children while out shopping and relaxing in a café constituted a breach of their Article 8 rights. Lord Dyson MR highlighted that a “child’s reasonable expectation of privacy cannot be different from that of a child whose parents are not in the public arena, unless the parents have courted publicity for the child”.
Yet it remains clear that the principle in ETK v News Group Newspapers Ltd, as followed in Weller, still stands – namely that children’s Article 8 should be protected in the absence of any “countervailing reasons of considerable force displacing them”.
To read the full article, click here. Article written for Entertainment Law Review.