私生活의 自由와 言論의 自由의 衡量

Striking the balance between privacy and freedom of press: in the case of publication of photographs of public figure in public place

In the year 2004, two important judgements about publication of photograph of public figure in public place came out. One of them was case of von Hannover v. Germany judged by European Court of Human Rights(ECHR), and the other was case of Campbell v. The MGN Ltd. by House of Lords of United Kingdom. In the former case, the ECHR decided that the criteria that Princess Caroline of Monaco as “absolute Person der Zeitgeschichte couldn t rely on protection of her private life unless she was in a secluded place out of the public eye were not sufficient to ensure the effective protection of the applicant s private life. And the majority opinion of ECHR stated that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution of the published photos to a debate of general interest, however in that case the applicant was just a member of Prince Rainier s family and she didn t perform any function within the State of Monaco. In the latter case, the applicant who was a celebrated fashion model, Naomi Campbell, had made untrue pronouncements concerning her drug addiction and the respondent carried the article which revealed the fact of Miss Campbell s drug addiction, the details of the treatment and printed the photograph which showed her leaving a meeting with other addicts, so Miss Campbell claimed damages for breach of confidence. The House of Lords said that the values enshrined in Arts 8 and 10 of European Convention effected the cause of action for breach of confidence and in proceedings for damages for breach of confidence courts should balance the right to respect for private life against freedom of expression. Two of Lords stated that when main substance of the story was justified because of her previous falsehoods, it was leaved for journalists to decide whether or not it was necessary to include the details of the treatment and the photograph. But three of Lords focused upon the protection of her privacy and allowed the appeal of Miss Campbell. After analysing the two cases and other judgements of European Court and of the courts of United Kingdom related with the two cases, we can draw the conclusions like these. First, there is no bright line which can be drawn between what is private and what is not. And an activity may be private although it is done in public place, for privacy or private life not only means secrecy but also includes a person s development, without outside interference, of the personality of each individual in his relations with other human beings. From this point of view the requirement of “seclusion for protection of private life is too narrow and inflexible. Second, since photographs can be particularly intrusive, private life considerations may arise concerning the publication of photographs, even if the publication of written material of same matter is justified. Photographs of people contain more information than textual description, so they are more vivid than written words and once recorded in the form of permanent data like photographs or film, the relevant moment can be viewed to an extent which far exceeds any exposure to a passer-by. Third, on the one hand the majority opinion of ECHR stressed the contribution made by photos in the press to a debate of general interest, on the other hand German courts, House of Lords and the concurring opinion of ECHR emphasized that the public had a legitimate interest in being allowed to know the personal behaviour of the public figures who are often regarded as role models. The former criterion is too inflexible but approach of latter may leads to approval of morbid and sensational prying into private lives of public figures. It seems to me that one way of solving the problem is to have courts enga