In the case of Kahn v Germany ([2016] ECHR 276), the Court of Human Rights, Fifth Section, held that the repeated publication of photographs by two German magazines (Neue Woche and Viel Spass) of a sportsman’s children despite a court order banning such conduct, did not constitute a violation of the applicants’ Article 8 rights.
Background
The applicants are German nationals and children of Oliver Kahn, former goalkeeper of the German national football team, and his former wife, Simone Kahn. Neue Woche and Viel Spass printed several photographs of the applicants with their parents between July 2004 and June 2009. Both magazines had the same publisher.
The first series of photographs were published in 2004 and showed, for the most part, the applicants on holiday with their parents. After an application to the Hamburg Regional Court was made, the Court ordered in January 2005 that the publication of the photos be banned or the publisher would risk a fine for non-compliance.
A second series of photographs was published in 2007 leading the applicants to obtain court orders against the publishers for payment of fines (€5000). More photographs were published later in 2007 and again in 2008 with fines increasing to €7500 and €15000 respectively. Another photograph was published in 2009 which led the applicants to seek a fine of €60000 against the publisher though this request was eventually retracted
Most importantly for this case, in 2007 the applicants applied to the Hamburg Regional Court for an order requiring the publisher to pay them compensation of at least €40000 each. They argued that the photographs had been published without their consent and that this had seriously undermined their right to privacy.
In 2008 the Hamburg Regional Court found in the applicants’ favour. However, the Hamburg Court of Appeal quashed this decision. They refused the applicants’ leave to appeal on points of law, as did the Federal Court of Justice. The Federal Constitutional Court refused to hear the applicants’ constitutional appeals.
Judgment
The Court clarified that the issue was not whether the applicants had received protection from the breach of their right to respect for private and family life, but whether, from the point of view of Article 8, the protection that they had been given was sufficient in the first place. In other words, was it enough that they were able to apply for fines from the publishers, or does Article 8 require that they be awarded damages too? [68].
First, the Court noted that the second set of fines ordered by the Regional Court (€7500 were higher than the first (€5000), and that by the third occasion the fines had doubled (€15000). The Court also pointed out that the applicants had the chance to contest these figures before the Court of Appeal, and did not explain why they thought such a course of action would fail, or at least why it was not capable of increasing the fines which they felt were too low [70] to [71].
Second, the Court stated that as a result of the applicants’ actions the publishers were already obliged to pay 68% of the damages sought. In addition, the procedure ordering these fines had been fast and straightforward: the Regional Court had found that the publishers infringed the ban and gave guidance as to how they calculated the increasing value of fines [73].
Third, the Court turned its attention to the photographs themselves and agreed with the findings of the Court of Appeal and the Federal Court of Justice. The Court of Appeal stated that the interference was not so serious as to warrant compensation, and the Federal Court specified that the applicants’ faces were not visible or had been pixellated. The applicants were therefore only recognisable insofar as their parents were, whilst the accompanying article showed that the main point of interest did not lie with the applicants but with the relationship between their parents following a marital breakdown [74].
At no point was the illegality of the publications contested. However, the Court made it clear that the breach was not so serious as to warrant additional compensation. The Court therefore found that the German Courts had not failed in their positive obligations to the applicants and there was no violation of Article 8.
Comment
One of the most compelling reasons for the Court refusing to see a violation of Article 8 is that the applicants had other means at their disposal, prior to taking their case to the Court, that may well have been effective. There was no basis for the Court to say that it would not have been effective. In particular Article 890 of the German Civil Procedure Code allowed for fines to reach the sum of €250000 as well as the possibility of two years’ detention if the publishers’ breaches had continued.
This approach suggests a cautious attitude by the Court to the extension of the positive obligation under Article 8, preventing outcomes that may otherwise be considered disproportionate. However, in addition to the focus on procedural issues it is also interesting to note the Court’s consideration of substantive points. The Court clearly did not believe that the photographs were be especially invasive as the applicants’ faces had been obscured in various ways. Nevertheless it appears that if the Court had taken a different view it would have more likely to find a violation of Article 8. In reaching their decision they explicitly stated that, above all, the issue turned on the seriousness of the offence and the circumstances as a whole [74].
In this case the consideration of procedural and substantive issues is fairly straightforward, but the question still remains whether the Court would have been willing to find a violation of Article 8 if the photographs had been more invasive. It remains to be seen how the balance would be struck when the Court has to deal with a case with less straightforward facts.
Calypso Blaj is studying for the Bar.
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