BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

2.2 Defamation proceedings In this section, we will provide examples of cases relating to defamation proceedings where a state did not properly balance the rights of individuals and private media companies. The cases at issue were often the subject of examination under Article 8 and Article 10 of the Convention. 58 In this paper, we will describe only submissions where the applicant alleged a violation of Article 8 of the Convention. Probably, the most famous in this regard is the series of judgments concerning Princess Caroline von Hannover and her family. For the first time, in the case of von Hannover v. Germany in 2004, the Court found a breach of Article 8 of the Convention 59 due to the lack of fair balance between the interests at stake. The Court noted that everyone, including people known to the public, may have a legitimate expectation that their private life would be respected. This respect is expected especially from private companies involved in the media business. In its further judgments relating to Princess Caroline, 60 the Court observed that the photographs of the applicants had contributed to a debate of general interest. Therefore, it ruled that there had been no violation of Article 8 of the Convention. The fact that the domestic courts had undertaken a detailed analysis of the Court’s case-law and had carefully balanced the right of private publishing companies to freedom of expression against the right of the applicants to respect for their private life contributed to these conclusions. The Court distinguishes between the status of public figures and private persons. The latter deserve more protection. In the case of Gurgenidze v. Georgia the applicant, a former university lecturer, complained that the information and his photograph, which were published in the newspaper Akhali Thaoba, had violated his right to respect for his private life. A series of interviews and articles in question accused him of stealing a manuscript of the writer Konstantiné Gamsakhourdia. The Court held that the Georgian courts failed to adequately protect the applicant’s rights under Article 8 of the Convention. 61 Similarly, the Court found a breach of this provision in the case of Reklos and Davourlis v. Greece 62 related to a situation which took place in a private clinic. A professional photographer based in the clinic took a number of photographs of a new- born baby without the parents’ prior consent and refused to hand over the negatives of these photographs. The Court observed that the circumstance that the photographer had kept them without obtaining the applicants’ consent and had a possibility of subsequent use against the wishes of the child and/or his parents led it to the conclusion that the right to private life in this case was not sufficiently protected. From the facts of the case it is unclear whether the photographer was an employee of the clinic or not. However, it is certain that the clinic not only allowed him to enter the sterile unit with 58 The Court has dealt with the complaints under Article 10 for example in the following cases: ECtHR, Hachette Filipacchi Associés v. France , Appl. No. 71111/01, Judgment, 14 June 2007, and ECtHR, Mgn Limited v. the United Kingdom , Appl. No. 39401/04, Judgment, 18 January 2011. 59 ECtHR, Von Hannover v. Germany , Appl. No. 59320/00, Judgment, 24 June 2004, § 80. 60 ECtHR, Von Hannover v. Germany (no. 2) , Appl. Nos. 40660/08 and 60641/08, Judgment, 7 February 2012 and ECtHR, Von Hannover v. Germany (no. 3) , Appl. No. 8772/10, Judgment, 19 September 2013. 61 ECtHR, Gurgenidze v. Georgia , Appl. No. 71678/01, Judgment, 17 October 2006, § 64. 62 ECtHR, Reklos and Davourlis v. Greece , Appl. No. 1234/05, Judgment, 15 January 2009, § 43.

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