EHRM, 07-02-2012, nr. 40660/08, nr. 60641/08

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 alone at home’ (‘Fürst Rainier — Nicht allein zu Haus’). The article reads as follows:

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.

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.

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:

On an unspecified date the first applicant sought an injunction in the Hamburg Regional Court against any further publication of the photo that had appeared in the magazine Frau Aktuell, issue no. 9/02 of 20 February 2002.

In a judgement of 1 July 2005 the Regional Court granted the applicant's request.

In a judgment of 13 December 2005 the Hamburg Court of Appeal allowed an appeal lodged by the publishing company and set aside the Regional Court's judgment.

In a judgment of 6 March 2007 (no. VI ZR 14/06) the Federal Court of Justice dismissed an appeal by the first applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 51/06 — see paragraphs 28–39 above). It stated that the first applicant had not argued before it — and nor was there anything to suggest — that the photo had been taken surreptitiously or with equivalent secret technical devices such as to render its publication unlawful.

In a decision of 16 June 2008 (no. 1 BvR 1625/07) a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the first applicant.

On 30 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the Ehrlich & Sohn GmbH & Co. KG publishing company of the three photos that had appeared in the magazine Frau im Spiegel.

In a judgment of 1 July 2005 the Regional Court granted the injunction.

In a judgment of 31 January 2006 the Hamburg Court of Appeal allowed an appeal by the publishing company.

In a judgment of 6 March 2007 (no.VI ZR 50/06) the Federal Court of Justice dismissed an appeal on points of law by the second applicant in respect of the first photo. With regard to the second and third photos, it allowed the appeal, quashed the judgment of the Court of Appeal and reinstated the injunction imposed by the Regional Court. It based its conclusions on the same grounds as those set out in its judgment no. VI ZR 51/06 of the same day (see paragraphs 28–39 above). With regard to the second applicant's high profile, it upheld the opinion of the Court of Appeal that he was well known to the public, in particular as the husband of the first applicant who was especially the subject of public attention.

In a decision of 16 June 2008 (no.1 BvR 1624/07) a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant.

On 29 November 2004 the second applicant sought an injunction in the Hamburg Regional Court against any further publication by the WZV Westdeutsche Zeitschriftenverlag GmbH & Co KG publishing company of the photo that had appeared in the magazine Frau Aktuell.

In a judgment of 24 June 2005 the Regional Court granted the injunction.

In a judgment of 13 December 2005 the Hamburg Court of Appeal allowed an appeal by the publishing company.

In a judgment of 6 March 2007 (no. VI ZR 13/06) the Federal Court of Justice dismissed an appeal on points of law lodged by the second applicant on the same grounds as those set out in its judgment of the same date (no. VI ZR 14/06 — see paragraph 57 above).

In a decision of 16 June 2008 (no. 1 BvR 1622/07) a three-judge panel of the Federal Constitutional Court declined, without giving reasons, to entertain a constitutional appeal lodged by the second applicant.

The Government pointed out at the outset that there was no conflict between the Federal Constitutional Court and the Court. They observed that in its judgment of 14 October 2004 (Görgülü judgment — no. 2 BvR 1481/04, Reports of Judgments and Decisions of the Federal Constitutional Court no. 111, p. 307), the Federal Constitutional Court had stated that there were grounds for lodging a constitutional appeal before it where the domestic court had failed to take sufficient account of the Convention or of the Court's case-law. They pointed out that in the present cases the Federal Court of Justice and the Federal Constitutional Court had taken the Court's case-law into consideration, particularly the Von Hannover judgment. It could not therefore be alleged that there was an attitude of denial on the part of the German courts; on the contrary, they had granted far greater protection to personality rights than had been the case in the past.

The Government pointed out that the present applications related in essence to only one photo. In their submission, whilst it was true that the photos published on 20 February 2002, although not identical, were apparently part of the same series, the fact remained that from the point of view of an unbiased observer it was the same photographic representation of the applicants, albeit in a different size and format. The Government observed that in respect of the other photos examined in the judgment of the Federal Constitutional Court of 26 February 2008 either the Federal Court of Justice had upheld the injunction on their publication or they were the subject of a separate application before the Court. Other photos, mentioned by the applicants in their observations, could not be taken into consideration by the Court as the relevant domestic proceedings had not yet been concluded.

The Government submitted that up until the Von Hannover judgment the German courts had used the hard and fast concept of ‘figure of contemporary society par excellence’, which attracted only limited protection under German law. Following the Von Hannover judgment, the Federal Court of Justice had abandoned that concept and developed a new concept of (graduated) protection according to which it was henceforth necessary to show in respect of every photo why there was an interest in publishing it. Furthermore, under the new approach adopted by the Federal Court of Justice the balancing of competing interests consisted in determining whether the publication contributed to a public debate. The information value of the publication was of particular importance in that respect. In sum, the new case-law of the Federal Court of Justice, endorsed by the Federal Constitutional Court, afforded greater weight to the protection of personality rights, as evidenced by the fact that an injunction was imposed on publication of two of the initial three photos. Besides that, the photo in question and the articles accompanying it could be clearly differentiated from the photos and their commentaries that had been the subject of the Von Hannover judgment.

The Government contested the applicants' allegation that, according to the clear findings of the Court, the first applicant was a private individual. The Court had in several judgments referred to her as a public figure in order to differentiate her from a private individual (Gurgenidze, cited above, § 40, 17 October 2006; Sciacca, cited above, § 27; and Reklos and Davourlis v. Greece, no.1234/05, § 38, 15 January 2009). In categorising the applicants as public figures the German courts had merely followed the Court's case-law. As a member of a reigning dynasty, the first applicant appeared in public at official functions in the Principality. Moreover, she was the chair of the Princess Grace Foundation, whose activities had been published by the Monegasque authorities in the official yearbook of the Principality.

The Government pointed out that the applicants had not complained before the national courts about the circumstances in which the photos had been taken, although those were factors which, as a general rule, the courts duly took into account. In their submission, whilst the photos in question had certainly been taken without the knowledge or consent of the relevant parties, this did not mean that they had been taken surreptitiously or in conditions unfavourable to the applicants.

The Government argued that the special nature of certain cases, such as the present ones, in which the domestic courts were required to balance the rights and interests of two or more private individuals lay in the fact that the proceedings before the Court were in fact a continuation of the original legal action, with each party to the domestic proceedings potentially able to apply to the Court. It was precisely for that reason that one result alone of the balancing exercise of the competing interests was insufficient, and that there should be a ‘corridor’ of solutions within the confines of which the national courts should be allowed to give decisions in conformity with the Convention. Failing that, the Court would have to take the decision on every case itself, which could hardly be its role. Consequently, it should limit the scope of its scrutiny and intervene only where the domestic courts had not taken account of certain specific circumstances when undertaking the balancing exercise or where the result of that exercise was patently disproportionate (see, for example, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 111-120, ECHR 2004-XI). The Government argued that where the relationship between State and citizen was concerned, a gain of freedom for the individual concerned involved only a loss of competence for the State, whereas in the relationship between two citizens the fact of attaching more weight to the right of one of the persons concerned restricted the right of the others, which was forbidden under Article 53 of the Convention. The scope of the Court's scrutiny was accordingly reduced in such cases.

The Government highlighted the margin of appreciation enjoyed by the State in the present case. That margin depended on the nature of the activities in question and the aim pursued by the restrictions. In its recent case-law, the Court had moreover left the State a broad margin of appreciation in cases concerning Article 8 of the Convention (A. v. Norway, no. 28070/06, § 66, 9 April 2009, and Armonienė v. Lithuania, no. 36919/02, § 38, 25 November 2008). Generally speaking, the margin enjoyed by the States was broader where there was no European consensus. In the Government's submission, whilst there was admittedly a trend towards harmonisation of the legal systems in Europe, differences nevertheless remained, as evidenced by the failure of the negotiations for the adoption of a regulation of the European Union on conflict-of-law rules regarding non-contractual obligations (Regulation EC No. 864/2007 of 11 July 2007 — Rome II Regulation). The margin of appreciation was also broad where the national authorities had to strike a balance between competing private and public interests or Convention rights (Dickson v. the United Kingdom [GC], no. 44362/04, § 78 ECHR 2007-XIII, and Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I). Moreover, the case-law of the Court of Justice of the European Union apparently took the same approach (cases of Schmidberger of 12 June 2003, C-112/00, and Omega of 14 October 2004, C-36/02).

The applicants wished to stress the context of the present applications. Since the first applicant had lost her first husband in a tragic accident in 1985 the media had realised that the story of the widow and her three young children would sell well and provided a lucrative market. Although it was illegal under the French Civil Code to take or publish such photos in France, the applicants had nonetheless been pursued by paparazzi who could sell the photos in other markets, particularly in Germany. Whereas the public had never heard of the second applicant before, he had also been pursued by paparazzi since his marriage to the first applicant and the birth of their child. In accordance with decisions of the German civil courts, upheld by the Federal Constitutional Court in 1999, the applicants had been able to oppose publication of such photos only where they were in a secluded location, out of public view. The applicants had constantly been aware of being observed, pursued and hounded and had therefore had high hopes after the adoption of the Von Hannover judgment, in which the Court had called into question the case-law of the domestic courts. They had accordingly brought six test cases regarding photos comparable to those that had been the subject of the Von Hannover judgment. It would appear that the German authorities had not been ready to follow that judgment, however. This was evidenced both by the statements of the Federal Minister of Justice and the German Chancellor at the time, according to which the Court's judgment was not binding on the German courts because the case-law of the Federal Constitutional Court was of higher rank than the Convention, and by the opinions expressed by the respective reporting judges in the Caroline von Hannover cases before the Federal Constitutional Court in an interview and in a legal article published in 2004 and 2009 respectively.

Germany had categorically refused until now to execute the Von Hannover judgment, in breach of Article 46 of the Convention. Accordingly, in its Görgülü judgment the Federal Constitutional Court had observed that a blanket execution of the Court's judgments should be avoided. The Court of Appeal had clearly stated in the present case that the judgment of the Federal Constitutional Court of 1999 took precedence. The Federal Court of Justice and the Federal Constitutional Court, for their part, had circumvented the Von Hannover judgment and continued to rely on the concept of figure of contemporary society (par excellence) that had been called into question by the Court, by using the terms ‘prominent persons’ or ‘high-profile persons’, and referring — de facto — to the spatial isolation factor by using the expression ‘moment of relaxation or letting go, freed from the constraints of professional or everyday life’. The applicants continued to be the subject of press articles on their daily and private life and to be hounded by paparazzi, with the German courts doing nothing to put a stop to this. As it was impossible for them to know whether they were protected from harassment by paparazzi, they complained of an intolerable situation of legal insecurity and a considerable risk of litigation and costs resulting from that.

The applicants argued that none of the photos, whether considered alone or in the context of the written article, contributed to a debate of public interest in a democratic society. They served purely to satisfy the curiosity of a particular readership. How and where the applicants spent their holidays clearly did not concern any matter that materially affected the public. A walk by the applicants during their holiday was not an event of contemporary society, especially as it was not undertaken in the exercise of any official function.

The reference to Prince Rainier's long-term illness in the article accompanying the photos in question could not alter that finding. The article was not about whether the Prince's illness prevented him from carrying out his sovereign tasks. There were only a few sentences informing the reader about his illness; the article was mainly about the private life of the applicants and other members of the Prince's family. The Prince's illness had been merely a pretext for extensive coverage of the applicants' private life. It was already doubtful whether publication of the photo of Prince Rainier with his daughter Stéphanie could be justified, so publication of the photo complained of in this case was clearly unjustified. Even if there was information value in the prince's illness, there was no genuine link between the applicants' skiing holiday and that illness. A simple article would, moreover, have sufficed to satisfy the public's interest.

The applicants submitted that there had been nothing unusual or reprehensible in their spending a few days on a skiing holiday with their daughter during the prince's illness, just like other families. That information was totally irrelevant to how the Principality of Monaco was governed. It was precisely when a family member was suffering from a long-term illness that the relatives needed special protection during the few days that they could relax. If a relative's poor health were sufficient grounds upon which to publish photos, the Article 8 guarantees would be undermined and the press could permanently report on the applicants' private life. Where the photos showed the applicants visiting the prince, the event of contemporary society would be the visit, and where they were elsewhere the event would be their absence. The German media had fully grasped this: they could enrich their articles with a few sentences to artificially generate information value.

The applicants complained of the absence of two important factors in the balancing exercise undertaken by the German courts. They argued that the courts had failed to have regard to the fact that they had never sought to publicise details of their private life in the media, but had always defended themselves against any illegal publication. They thus had a legitimate expectation that their private life would be protected. Moreover, unlike the Court, the German courts had not taken account of the fact that the applicants were being permanently observed and hounded by paparazzi and that the photos had been taken without their knowledge or consent. Furthermore, the first applicant had not at any time been called to the throne of the Principality of Monaco: her father had still been alive when the photos were taken. On the latter's death, it was her brother Albert who had succeeded him to the throne.

The applicants submitted that since the Von Hannover judgment, in which the Court had clearly established the criteria that had to be met in cases of illegal publication of photos, the German authorities could no longer rely on a margin of appreciation. In their submission, a European consensus had emerged following the influence of that judgment as illustrated by the adoption of a resolution by the Parliamentary Assembly in 1998. The differences that remained were merely in the nuances. The Von Hannover judgment was part of a line of established case-law and had subsequently been confirmed many times. The applicants expressed surprise, moreover, that the Court, as a supreme European court, should have less extensive powers of scrutiny than those exercised by the Federal Constitutional Court, which, in the proceedings in respect of the photo published in the magazine 7 Tage (paragraph 40 above), had overridden the opinion of the eleven professional judges who had examined the case and substituted its own opinion down to the last detail.

The third-party association observed that the Von Hannover judgment delivered by the Court had had considerable effects on the freedom of the press in Germany. Following that judgment, the German courts had attached much less weight to the freedom of the press than before. Their decisions had now fallen into line with the Court's case-law, to which they often referred moreover. The association submitted that the press, in its role of ‘public watchdog’, had the task not only of watching over parliaments, governance and other political events, but also of observing public life in general whether in politics, the economy, the arts, the social sphere, sport or any other domain. Like members of other royal families, the first applicant had a function as a role model and was unquestionably a public figure. The third-party association pointed out that, since 2003, the first applicant had been UNESCO goodwill ambassador, a title bestowed on famous persons such as Nelson Mandela, Claudia Cardinale or Pierre Cardin. The Court had, moreover, described the first applicant as a public figure in judgments delivered after the Von Hannover judgment. In the association's view, the protection of privacy had already been quite extensive before the Von Hannover judgment and that protection had subsequently been further extended. The German courts had not therefore exceeded their margin of appreciation. The standard as it existed in France could not constitute a model for Europe.

The third-party publishing company reiterated the importance of the freedom of the press in Germany, particularly having regard to the country's former National Socialist era. It observed that, in accordance with the settled case-law of the Federal Constitutional Court, the entertainment press also enjoyed the protection of press freedom. Moreover, as the daughter of the late sovereign prince of a European country, sister of the current sovereign prince and wife of the head of a former German noble dynasty, the first applicant was undeniably a public figure who attracted attention, at least in Europe. The publishing company submitted, lastly, that following the Von Hannover judgment delivered by the Court in 2004, the German courts had departed from precedent by restricting the possibility of publishing photographs of persons taken outside official events and without the consent of the interested parties and had thus severely curtailed the freedom of information and of the press.

The third-party association argued that Article 8 of the Convention did not create an image right or, moreover, a right to reputation. Publication of a person's photo did not, of itself, necessarily constitute an interference with the rights guaranteed under that provision. In determining whether there had been an interference, regard had to be had to all the circumstances and a certain level of seriousness was required. It was vital that media reporting upon all matters of public interest was strongly protected. In the Association's submission, whilst the Court had rightly held, in its Von Hannover judgment, that regard had to be had to the context in which a photo had been taken, it had gone too far in asserting — in error — that publication of any photo fell within the scope of Article 8. The Court had unfortunately confirmed that position in subsequent judgments. The association maintained that the correct approach was first to examine whether the photo that had been published did or did not fall within the private sphere. In that context consideration had to be given to whether the person concerned, having regard to all the circumstances, had a legitimate expectation of privacy. If not, that was the end of the matter as Article 8 of the Convention did not apply. If yes, the domestic courts had to balance competing rights — of equal status — under Articles 8 and 10 of the Convention, whilst taking account of all the circumstances of the case. The balancing exercise and the outcome were matters that fell within the margin of appreciation of the States. The Court should intervene only where the national authorities had failed to undertake a balancing exercise or where their decisions were unreasonable. Lastly, the decision whether to include a photo in a written report fell within the editor's discretion and judges could not substitute their own opinion.

The three third-party associations submitted that a broad trend could be observed across the Contracting States towards the assimilation by the national courts of the principles and standards articulated by the Court relating to the balancing of the rights under Article 8 against those under Article 10 of the Convention, even if the individual weight given to a particular factor might vary from one State to another. They invited the Court to grant a broad margin of appreciation to the Contracting States, submitting that such was the thrust of Article 53 of the Convention. They referred to the Court's judgment in the case of Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999-III), submitting that the Court had indicated that it would allow the Contracting States a wide margin of appreciation in situations of competing interests. The Contracting States were likewise generally granted a wider margin in respect of positive obligations in relationships between private parties or other areas in which opinions within a democratic society might reasonably differ significantly (Fretté v. France, no. 36515/97, § 41, ECHR 2002-I). The Court had, moreover, already allowed the Contracting States a broad margin of appreciation in a case concerning a balancing exercise in respect of rights under Articles 8 and 10 of the Convention (A. v. Norway, cited above, § 66). Its role was precisely to confirm that the Contracting States had put in place a mechanism for the determination of a fair balance and whether particular factors taken into account by the national courts in striking such a balance were consistent with the Convention and its case-law. It should only intervene where the domestic courts had considered irrelevant factors to be significant or where the conclusions reached by the domestic courts were clearly arbitrary or summarily dismissive of the privacy or reputational interests at stake. Otherwise, it ran the risk of becoming a court of appeal for such cases.

The Court observes at the outset that it is not its task in the present case to examine whether Germany has satisfied its obligations under Article 46 of the Convention regarding execution of the Von Hannover judgment it delivered in 2004, as that task is the responsibility of the Committee of Ministers (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 61, ECHR 2009-…, and Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010). The present applications concern only new proceedings instituted by the applicants following the Von Hannover judgment and relating to the publication of other photos of them (see paragraphs 15–20 above).

The Court takes note of the changes made by the Federal Court of Justice to its earlier case-law following the Von Hannover judgment. That court stated, inter alia, that in future importance had to be attached to the question whether the report in question contributed to a factual debate and whether its contents went beyond a mere desire to satisfy public curiosity. It observed in that connection that the greater the information value for the public the more the interest of a person in being protected against its publication had to yield, and vice versa. Whilst pointing out that the freedom of expression also included the entertainment press, it stated that the reader's interest in being entertained generally carried less weight than the interest in protecting the private sphere.

The Federal Constitutional Court confirmed that approach, stating that whilst it had not, in its judgment of 15 December 1999, called into question the former case-law of the Federal Court of Justice, that did not mean that another concept of protection — giving greater weight to balancing the conflicting interests at stake when examining the question whether a photo could be regarded as an aspect of contemporary society and could accordingly be published without the consent of the person concerned — could not be in conformity with the Basic Law.

In so far as the applicants alleged that the new approach of the Federal Court of Justice and the Federal Constitutional Court merely reproduced the reasoning of the former case-law using different terms, the Court reiterates that its task is not to review the relevant domestic law and practice in abstracto, but to determine whether the manner in which they were applied to the applicants has infringed Article 8 of the Convention (see Karhuvaara and Iltalehti, cited above, § 49).

The Court observes that in applying its new approach the Federal Court of Justice found that as neither the part of the article accompanying the photos of the applicants' skiing holiday nor the photos themselves contained information related to an event of contemporary society, they did not contribute to a debate of general interest. The Federal Court of Justice found that the same could not be said, however, with regard to the information in the articles about the illness affecting Prince Rainier III, the reigning sovereign of the Principality of Monaco at the time, and the conduct of the members of his family during that illness. In the Federal Court of Justice's opinion, that subject qualified as an event of contemporary society on which the magazines were entitled to report, and to include the photos in question in that report as these supported and illustrated the information being conveyed.

The Federal Constitutional Court, for its part, observed that the Federal Court of Justice had accepted that the reigning prince of Monaco's illness could be regarded as a matter of general interest and that the press was therefore entitled to report on how 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. It also confirmed that there was a sufficiently close link between the photo and the event described in the article.

The Court observes that the fact that the Federal Court of Justice assessed the information value of the photo in question in the light of the accompanying article cannot be criticised under the Convention (see, mutatis mutandis, Tønsbergs Blad A.S. and Haukom, cited above, § 87, and Österreichischer Rundfunk v. Austria, no. 35841/02, §§ 68 and 69, 7 December 2006). Regarding the characterisation of Prince Rainier's illness as an event of contemporary society, the Court is of the opinion that, having regard to the reasons advanced by the German courts, that interpretation cannot be considered unreasonable (see, mutatis mutandis, Editions Plon, cited above, §§ 46–57). It is worth mentioning in this connection that the Federal Court of Justice upheld the injunction forbidding publication of two other photos showing the applicants in similar circumstances, precisely on the grounds that they were being published for entertainment purposes alone (see paragraphs 36 and 37 above). The Court can therefore accept that the photos in question, considered in the light of the accompanying articles, did contribute, at least to some degree, to a debate of general interest. It would reiterate, on this point, that not only does the press have the task of imparting information and ideas on all matters of public interest, the public also has a right to receive them (see paragraph 102 above).

In so far as the applicants complained of a risk that the media would circumvent the conditions laid down by the Federal Court of Justice by using any event of contemporary society as a pretext to justify the publication of photos of them, the Court notes that it is not its task, in the context of the present applications, to rule on the conformity with the Convention of any future publication of photos of the applicants. Should that happen, it will be open to them to bring proceedings in the appropriate national courts. The Court also observes that the Federal Constitutional Court stated in its judgment that where an article was merely a pretext for publishing a photo of a prominent person, no contribution was thereby 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.

Admittedly, the Federal Court of Justice based its reasoning on the premise that the applicants were well-known public figures who particularly attracted public attention, without going into their reasons for reaching that conclusion. The Court considers, nonetheless, that irrespective of the question whether and to what extent the first applicant assumes official functions on behalf of the Principality of Monaco, it cannot be claimed that the applicants, who are undeniably very well known, are ordinary private individuals. They must, on the contrary, be regarded as public figures (see Gurgenidze, cited above, § 40; Sciacca, cited above, § 27; Reklos and Davourlis, cited above, § 38; and Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 123, ECHR 2009-…).

The Federal Court of Justice then examined the question whether the photos had been taken in circumstances unfavourable to the applicants. The Government submitted that the fact that the photos had been taken without the applicants' knowledge did not necessarily mean that they had been taken surreptitiously in conditions unfavourable to the applicants. The latter, for their part, alleged that the photos had been taken in a climate of general harassment with which they were constantly confronted.

The Court observes that the Federal Court of Justice concluded that the applicants had not adduced evidence of unfavourable circumstances in that connection and that there was nothing to indicate that the photos had been taken surreptitiously or by equivalent secret means such as to render their publication illegal. The Federal Constitutional Court, for its part, stated that the publishing company concerned had provided details of how the photo that had appeared in the Frau im Spiegel magazine had been taken, but that the first applicant had neither complained before the civil courts that those details were inadequate nor submitted that the photo in question had been taken in conditions that were unfavourable to her.

The Court observes that, according to the case-law of the German courts, the circumstances in which photos have been taken constitutes one of the factors that are normally examined when the competing interests are balanced against each other. In the present case it can be seen from the decisions of the national courts that this factor did not require a more thorough examination as the applicants did not put forward any relevant arguments and there were no particular circumstances justifying an injunction against publishing the photos. The Court notes, moreover, as pointed out by the Federal Court of Justice, that the photos of the applicants in the middle of a street in St. Moritz in winter were not in themselves offensive to the point of justifying their prohibition.

The Court observes that, in accordance with their case-law, the national courts carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so, they attached fundamental importance to the question whether the photos, considered in the light of the accompanying articles, had contributed to a debate of general interest. They also examined the circumstances in which the photos had been taken.

The Court also observes that the national courts explicitly took account of the Court's relevant case-law. Whilst the Federal Court of Justice had changed its approach following the Von Hannover judgment, the Federal Constitutional Court, for its part, had not only confirmed that approach, but also undertaken a detailed analysis of the Court's case-law in response to the applicants' complaints that the Federal Court of Justice had disregarded the Convention and the Court's case-law.

In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the latter have not failed to comply with their positive obligations under Article 8 of the Convention. Accordingly, there has not been a violation of that provision.