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Strasbourg emphasises subsidiarity in freedom of expression rulings

Last week the European Court of Human Rights handed down two important rulings in media privacy cases, Von Hannover v Germany (No. 2) and Axel Springer AG v Germany. These cases, in both of which the Court favoured freedom of expression over privacy, would be interesting in any circumstances. What’s especially striking, though, against the background of the British government’s attempts to reform the Court, is the new stress these judgments place on the subsidiarity of Strasbourg’s role as compared with national courts.

Princess Caroline Von Hannover is better known here as Caroline of Monaco; she’s been trying to protect her privacy from paparazzi and magazines for years, and won in a famous Strasbourg ruling in 2004 in which the European Court decided that the German courts did not protect her privacy adequately. This time she was again complaining about the German courts’ refusal to grant her injunctions against the republication in German glossy magazines of photos taken of her on holiday.

But on this occasion, she lost. The Grand Chamber of the European Court held unanimously (paras. 125-6 of the judgment) that it would not displace the German courts’ refusal of injunctions:

the national courts explicitly took account of the Court’s relevant case-law … the Federal Constitutional Court, for its part, had … 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.

What’s also striking is the relatively long discussion of the margin of appreciation at paragraphs 104-107 of the judgment, in which the Court cites a number of its previous rulings in support of the general principle that (para. 105)

In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on.

and (para. 107)

Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.

These principles, at least set out by the Court in this clear and extended form, are new: they build on one short paragraph (para. 150) in its 2010 judgment in the Naomi Campbell case, MGN v UK:

having regard to the margin of appreciation accorded to decisions of national courts in this context, the Court would require strong reasons to substitute its view for that of the final decision of the House of Lords or, indeed, to prefer the decision of the minority to that of the majority of that court, as the applicant urged the Court to do.

The contrast with the first Von Hannover case is striking: there, you’ll find little discussion of the margin of appreciation and none of the respective roles of national and international courts.

The Axel Springer case was about the German newspaper Bild, which is quite like our own Sun. It had reported the arrest of an actor, who played a famous TV detective, for cocaine possession at Munich’s Oktoberfest (it’s in September, as Clive James might have written). He had then obtained injunctions against further publication, injunctions which were upheld by the German courts.

The European Court repeated essentially what was said in Von Hannover (No. 2) about the margin of appreciation and the respective roles of national and international courts (paras. 85-88 of the Axel Springer judgment), before this time (paragraphs 110-111) finding the German courts insufficiently protected freedom of expression:

Despite the margin of appreciation enjoyed by the Contracting States, the Court considers that there is no reasonable relationship of proportionality between, on the one hand, the restrictions imposed by the national courts on the applicant company’s right to freedom of expression and, on the other hand, the legitimate aim pursued.

 Accordingly, there has been a violation of Article 10 of the Convention.

Few would disagree with this: it seems extraordinary that the German courts would essentially on grounds of privacy restrain reporting of the public fact of this actor’s arrest and I think subsequent conviction for a drug offence.

Yet five of the judges did dissent. They thought the European Court should not disturb the German courts’ conclusions even in this case. The final paragraph of the dissenting opinion is worth quoting in full. This strong emphasis on subsidiarity, though spoken by a minority in this particular case, must be music to the British government’s ears:

none of the grounds which would justify a review by this Court of the judgments of the domestic courts are present in this case. The domestic courts did not fail to balance the conflicting interests or to apply the relevant criteria in doing so. They made no manifest error of appreciation; nor did they fail to consider all the relevant factors. Nevertheless, on this occasion and instead of concentrating its assessment on whether the domestic courts applied the above-mentioned criteria effectively, the Grand Chamber has chosen to re-examine the same facts that were brought before the national courts. And this was done in spite of the national courts having extensively assessed the circumstances of the case in a way that was not manifestly unreasonable, and with the added benefit of their direct examination of the context in which the events occurred. Analysing the same facts and using the same criteria and same balancing approach as the domestic courts, the Grand Chamber came to a different conclusion, giving more weight to the protection of the right to freedom of expression than to the protection of the right to privacy. But that is precisely what the case-law of this Court has established is not our task, that is, to set ourselves up as a fourth instance to repeat anew assessments duly performed by the domestic courts.

Note the use of two key phrases: manifestly unreasonable and fourth instance, both of which are emphasised repeatedly in the British government’s recent discourse on subsidiarity.

It’s difficult to read these judgments without suspecting that the Strasbourg judges worry that they may have leaned a little too far, in the past, in the direction of protecting privacy over free expression.

Even more importantly, it’s clear that subsidiarity is not only an obsession of the British government, but has won hearts and minds on the Strasbourg bench.

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