5. European approaches to privacy

Updates and background for this project (Digest)

• France
• Quebec
• The case law of the European court of human rights

5.2 We have chosen to include a discussion of French law as illustrative of the greater protection that civilian systems of law generally give to privacy in comparison with common law systems.² That protection is more extensive even than in the common law jurisdictions of the United States, which, as we have seen in Chapter 4, traditionally protect privacy more robustly than other common law systems. One commentator has observed that:

[i]n the law of privacy …, the contrast between Europe and the United States is stark and is growing starker. In the name of dignity, Europeans have aggressively tried to guarantee that individuals control all uses and appearances of their names and images. Nothing of the kind is true in the United States.³

FRANCE

Privacy protection in delict

5.4 The French Code Civile (“Civil Code”) or Napoleonic Code of 1804, provides for all forms of delictual liability in only five articles. The general delictual principle, in Articles 1382 and 1383, is that everyone whose act or omission causes damage to another by “fault” must compensate the harmed person. In Article 1384(1), the Code also imposes liability on persons for harm caused by things in their use, direction or control, which since 1930 has resulted in the imposition of strict liability on a wide scale.⁷

5.5 An early case of breach of privacy decided on general delictual principles exemplifies the particular mindset underlying French privacy law. This case is also seen as the birth in French law of the right to one’s image.⁸ The Rachel decision involved an action to destroy lifelike sketches made from a photograph of the plaintiff’s sister, a famous actor, taken on her deathbed expressly for the plaintiff’s personal records only. The court found that the right to oppose the reproduction was absolute and that the action came under general strict liability principles. The defendant’s mental state was therefore irrelevant.⁹

5.6 The Tribunal held that:

No one may, without the express consent of the family, reproduce and make available to the public the features of a person on his deathbed, however famous this person has been and however public his acts during his lifetime have been; the right to oppose this reproduction is absolute; it flows from the respect the family’s pain commands and it should not be disregarded; otherwise the most intimate and respectable feelings would be offended.¹⁰

Other sources of privacy protection

5.8 The jurisprudence (or case law) generated by the application of general delictual principles to privacy was thought to be too imprecise and, in 1970, the Civil Code was amended in Article 9 to include the provision that:

Everyone has the right to respect for his private life.

Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order.¹³

5.10 Although not specifically mentioned in the Constitution, the Conseil constitutionnel (Constitutional council) has judged privacy a constitutional right under the umbrella of the right to freedom.¹⁷ Further sources of the right to privacy in French law are: international instruments, specifically the International Covenant on Civil and Political Rights; the ECHR; community law; and “General Principles of Law”, such as those applied by the administrative courts.¹⁸

Article 9

5.11 The right given by Article 9 “encompasses more than a mere right to secrecy of one’s private activities, because ‘respect’ means more than secrecy”. The right extends to all aspects of an individual’s spiritual and physical being.¹⁹ It has been said to protect “the right in one’s name, one’s image, one’s voice, one’s intimacy, one’s honour and reputation, one’s own biography, and the right to have one’s past transgressions forgotten.”²⁰ Case law illustrates that Article 9 will also extend to: personal health;²¹ health of close family members; private repose and leisure; parental and marital status;²² family life; way of life in general;²³ intimate interpersonal relations, including relations with children and romantic attachments; inner emotions, such as suffering and despair;²⁴ sexual orientation;²⁵ political and religious beliefs; true names; and residences.²⁶

5.12 Gigante makes three other points about the right given by Article 9. First, it is a right that survives the death of the aggrieved and may be enforced by family of the deceased.²⁷ Secondly, an individual can claim a vicarious breach of privacy where a disclosure relates to a close family member.²⁸ Thirdly, every individual has the exclusive power to define the boundaries of his or her private life and the circumstances under which private information may be divulged publicly, including the timing, circumstances, and context of the disclosure of any facts about his or her private life.²⁹ For this reason, a person may subsequently claim privacy rights for personal information previously divulged,³⁰ even where they themselves were responsible for the prior disclosure.³¹

5.13 The most well known case illustrating this last point is the Gunther Sachs case, in which Gunther Sachs, husband of Brigitte Bardot, sued the magazine Lui for publishing details of his sex life under the heading “Sexy Sachs”.³² The published material had previously appeared in other magazines with the express or tacit consent of the plaintiff. All Lui did was to summarise and edit this material to form a complete story. The Cour de cassation, the final court of review in private law, commercial law and criminal law matters in France, held that the fact that the plaintiff had previously tolerated reports, and even his consent to their publication, did not mean that he had irrevocably and without limit authorised republication.³³ This prerogative given by French privacy law to revoke prior consent to publication of personal information can be understood in the light of privacy rights being treated in France as analogous to moral property.

Public figures

5.14 Despite being exposed to public scrutiny, public officials and public figures enjoy the same protection of their right to privacy as private individuals, although only in relation to those aspects of private life not connected to the conduct of the public activities.³⁴ In an action brought by the Aga Khan, the Cour de cassation, affirming the lack of distinction in French privacy law between public and private figures, held that “each individual, whatever his status, his birth, his wealth, his present or future position, has the right to require respect for his privacy.”³⁵

5.15 Gigante argues that the broad right of privacy given to public officials and figures means that French courts will often protect disclosure of information in matters that other jurisdictions would treat as issues of legitimate public interest. Gigante cites the action brought by the former French President, Valéry Giscard d’Estaing, to prevent the publication of a deposed African dictator’s autobiography deemed invasive of Giscard’s privacy, as illustrating the extent to which French privacy law limits the scope of debate even in the political arena. In that case, it was said that:

[P]olitical combat … to be exercised within the context of freedom of the press and freedom of information, must leave outside the field of battle any fact or event directly related to the intimacy of personal or family life; the fact that the person targeted engages in an activity of a public figure cannot authorize or justify an intrusion into what constitutes the “private life” that “each person has the right” to have respected. ³⁶

5.16 As noted in paragraph 5.38 below, Article 10 of the ECHR guarantees freedom of expression. The Cour de cassation has decided that there is no conflict between Article 9 of the Civil Code and Article 10 of the ECHR.³⁷ The basis for this conclusion is that Article 9 and its attendant jurisprudence are justifiable limits falling within the qualifications to the right to freedom of expression contained in cl 2 of Article 10. This seems to reflect a national character trait that places a high value on free exchange of thoughts and sentiments between individuals, and the development of intellectual and spiritual personal freedom, which is likely to be inhibited by public knowledge of personal communications.³⁸

5.17 Picard observes that the right to privacy is subject to three general limitations: the plaintiff’s consent; other person’s rights; and the requirements of public order (including public safety and justice³⁹ ) or general public interest.⁴⁰ In the latter category, despite the status of Article 9 of the Civil Code alongside Article 10 of the ECHR, Picard states that the public’s “legitimate interest to be informed” can take precedence over an individual’s right to privacy.⁴¹ Likewise, Picard points out that “the right to criticism concerning matters of public interest has traditionally been well protected in France”.⁴² Beverley-Smith, Ohly and Lucas-Schloetter add that the information must also be useful, which, in this context, means necessary: “[t]he disclosure of private facts or the publication of the image must be directly linked to the [recounted] event and has to occur for the purpose of informing the public”.⁴³

5.18 It becomes apparent from the case law, however, that “different types of public interest may allow diverse interferences with the right to privacy”,⁴⁴ and that the case-law is not always clear as to what will fall within the ambit of the right of the public to be informed and to what extent the right to privacy should prevail.

5.19 For example, the French Press have been permitted to publish a list of the “hundred richest French people”, with an account of their wealth, on the basis that the position of these persons in the business world deserves to be known. The Court remarked that the publication did not affect the intimacy of the private lives of these persons. By contrast, in the case of Francois Mitterand, the author of the book, Le Grand Secret, was prevented from publishing his story of the illness of the former French President before he died, even though the matter of the President’s health was undoubtedly a matter of public interest. The defendant did not, however, rest his defence on “public interest”, relying instead on his right to “freedom of expression”. The Court took the view that details of the President’s illness involved the most “intimate” aspect of privacy. Given that the President himself had issued regular bulletins about his health, Picard has argued that what actually prevailed in the Court’s decision was “the right of the subject of the invasion to reveal what he wishes about himself even if, as in this case, it was not the truth”.⁴⁵

5.20 The courts have also permitted incursions into the private lives of individuals in a number of specific circumstances. For example, the courts will allow limited publication of personal financial information if the reporting is confined to finance and “excludes all allusion to the life and personality of the individual”.⁴⁶

5.21 An exception is also allowed for historians to write reports intended to serve as a historical source, about the private lives of individuals without their consent, if the facts are relevant to the historical record and “related with objectivity and without the intention to cause harm, and if they have been … already placed within the public domain by accounts of court records in the local press”.⁴⁷

5.22 The decision in the Chaplin case appears to have established a “fair use” exception when private facts are published for historical or critical debate. In that case, Charlie Chaplin sued Lui magazine for breaches of Articles 1382 and 9 of the Code. The central issue was the control a person has over previously revealed private facts. Chaplin had consented, two years previously, to an interview with him being published by the Asa-Presse agency. Asa-Presse sold the rights to the article to the magazine Lui, which published it in a changed form (changing it from a narrative to a question-and-answer format), giving the impression that Chaplin had granted Lui a recent and exclusive interview. Chaplin sued Lui magazine, arguing that the changed depiction of the interview constituted a civil wrong under Article 1382 and the republication of private facts without consent violated Chaplin’s right to privacy under Article 9.⁴⁸

5.23 The Cour d’appel de Paris (Court of Appeal of Paris) held that where an individual publishes private facts concerning her life “she does so in the terms which please her, and in a context chosen by her, and thus decides with complete information concerning what she will make public and the conditions under which she will do so.”⁴⁹ On appeal, Lui magazine argued that Chaplin had to show that the defendant had “mischaracterised the private facts in republishing them”⁵⁰ in order to succeed in the action for breach of privacy. The Cour de Cassation rejected this argument but at the same time indicated that not all cases of republication of private facts would attract liability. It held that “the findings and conclusions [of the lower courts] do not imply that when a person has consented to the publication of facts relating to her private life she has an unlimited power to oppose the republication of those same facts.”⁵¹

5.24 The Cour d’appel de Paris had distinguished between historical or critical works of a serious nature, and those that are not, suggesting that the former could contain a republication of private facts without liability. The Cour de Cassation impliedly accepted this distinction by saying that it did not affect the Court’s decision as Lui “could make no serious pretension to scholarly status”.⁵² Hauch has argued that the decision can be interpreted as allowing a “fair-use kind of exception” to the right to oppose republication of private facts, when the facts are used for historical or critical debate.⁵³ According to Hauch, “if the Lui article had been a Sorbonne thesis on the effect of the artist’s private life on his humor, presumably Chaplin’s rights would have been trumped by free-debate-type concerns”.⁵⁴ Hauch’s summary of the effect of the Chaplin decision is less ambiguous on the question of an individual’s right to control the circumstances of disclosure of private information:

Under the view of the Lui court, individuals have an absolute and indefeasible right to control use of private facts, even when those facts have been previously revealed. Society may “borrow” those facts when their use is for the general public good.⁵⁵

Underpinnings of privacy protection

5.26 Hauch argues that privacy rights in France need to be “interpreted against a backdrop of firmly entrenched personality rights”, or, going one step further, that privacy rights are in fact part of a package of personality rights.⁵⁷ Personality rights are “the rights whose subject is the component elements of the personality considered under its manifold aspects, physical and moral, individual and social”.⁵⁸

5.27 In the Mistinguett case, the actor Jeanne Mistinguett entered into a contract for the film rights for her autobiography.⁵⁹ The contract contained explicit waivers of the actor’s moral rights as an author and her right of privacy. The Court held that these waivers were invalid. Hauch has argued that the rationale for the Court’s decision was that “[s]ince private facts or events are an extension of an individual’s personality, to strip them from the individual’s control is as unthinkable to the French mind as is the truncation of an artist’s moral control over the destiny of his work”.⁶⁰

5.28 Also underpinning French privacy law is the concept of privacy as moral property, or “moral patrimony”,⁶¹ similar to literary and artistic property (or copyright).⁶² This is illustrated by the decision in the Dietrich case.⁶³ Marlene Dietrich sought damages against France-Dimanche for the unauthorised publication of her memoirs, allegedly told to a (fictitious) German journalist. The Court held that “the memories of each person’s private life belong to his moral patrimony” and hence unauthorised publication, “even without malicious intent”, is a breach of privacy.⁶⁴ In addition, Beverley-Smith, Ohly and A Lucas-Schloetter point out that, since the beginning of the 1990s, French courts have expressly affirmed in many decisions the existence of a patrimonial right to one’s image, distinct from the traditional personality right to one’s image.⁶⁵

Remedies

5.29 As well as needing to weigh rights to privacy against the freedom of expression guaranteed by Article 10, French courts considering suppressing material prior to publication, must consider Article 1 of the French Press Law of 1881, which guarantees “liberty of diffusion” to the printed press, and Article 11 of the Declaration of the Rights of Man of 1789, which guarantees “liberty of expression”. These liberties are recognised in the French Constitution of 1958 as fundamental guarantees that can only be altered by positive law. In spite of this, the French judiciary has shown itself ready to grant injunctive relief to prevent violations of privacy, even in curtailment of freedom of expression. ⁶⁶

5.30 For example, in the Gerard Philipe case, against the objections of the publisher of the magazine, the Cour d’appel de Paris ordered seizure of all copies of the magazine, France-Dimanche, containing an article reporting the medical problems of the plaintiff’s son and removal of posters from news-kiosks promoting the article. The publishers appealed to the Cour de cassation, arguing that the injunction constituted “a penalty violating the liberty of the press”. The Court held that once the trial judge had found “an intolerable intrusion into private life”, he had the power to pre-empt potential damage by ordering the seizure of the offending publication, pending final determination of the parties’ respective rights at trial.

5.31 The addition of Article 9 to the Civil Code replaced the judicial “intolerable intrusion” formula for injunctive relief with the notion of a “violation of the intimacy of private life.” It has been argued that the change in language “invites the case law to distinguish from private life itself, … the intimacy thereof, that is the most secret part of private life; the violation of this latter part alone permits the courts to prescribe measures limiting the freedom of expression.”⁶⁷ Hauch argues that, as a result, “mere” violations of private life in general should be remedied by damages after trial, whereas revelations concerning “the intimate core of private life” justify pre-trial injunctive relief. He notes that the Cour de Cassation has continued to endorse broad injunctive relief. Hauch also points out that French courts have prescribed a wide variety of specific remedies to prevent or palliate privacy violations, including sequester or seizure of publications, suppression of offending scenes of films or passages of books, inclusion of disclaimers, alteration of character names, and the publication of judicial decisions in or with the offending work.⁶⁸

QUEBEC

5.32 Quebec’s legal system is unique in Canada in that it is a civil law system based on French law, whereas the law of the other Canadian jurisdictions is based on English common law. Supreme Court decisions on appeal from Quebec have no binding effect on the common law provinces. The other distinguishing feature of the development of Quebec’s privacy laws is that s 5 of its Charter of Human Rights and Freedoms (“Quebec Charter”) explicitly guarantees every person “a right to respect for his private life”.⁶⁹ In Gazette v Valiquette, the Quebec Court of Appeal held that the right comprises “a right to anonymity and privacy, a right to autonomy in structuring one’s personal and family life, and a right to secrecy and confidentiality”.⁷⁰ The Supreme Court of Canada has also held that s 5 protects a narrow sphere of personal autonomy within which decisions relating to choices that are of a fundamentally private or inherently personal nature are made.⁷¹

5.33 Personal autonomy includes the ability of a person to control his or her identity. In Aubry v Éditions Vice-Versa, the Supreme Court of Canada held that a photograph taken without the plaintiff’s consent and published in a magazine was a breach of s 5 of the Quebec Charter, on the grounds that the right to one’s image must be included in the right to respect for one’s private life, since it relates to the ability of a person to control his or her identity.⁷² The Court also held that it is irrelevant to the question of breach of s 5 whether the image is in any way reprehensible, or has injured the person’s reputation.⁷³

5.34 The right to respect for one’s private life guaranteed by s 5 must be balanced against the right to freedom of expression guaranteed by s 3 of the Quebec Charter. The right to freedom of expression also underpins the public’s right to information (the public interest), which places limits on the privacy right in certain circumstances.⁷⁴ For example, “it is generally recognized that certain aspects of the private life of a person who is engaged in a public activity or has acquired a certain notoriety can become matters of public interest”.⁷⁵

5.35 Quebec has also expressly legislated in the Civil Code of Quebec a right to protection of privacy and respect for reputation.⁷⁶ Section 35 provides that “[e]very person has a right to the respect of his reputation and privacy” and that “[n]o one may invade the privacy of a person without the consent of the person unless authorized by law”. Section 36 provides examples of what may be considered as invasions of privacy:

• entering or taking anything in a person’s dwelling;
• intentionally intercepting or using a person’s private communications;
• appropriating or using a person’s image or voice while that person is in private premises;
• keeping a person’s private life under observation by any means;
• using a person’s name, image, likeness or voice for a purpose other than the legitimate information of the public; and
• using a person’s correspondence, manuscripts or other personal documents.

5.36 The European Court of Human Rights, and the European Commission of Human Rights, were established by Article 19 of the ECHR to ensure observance of the provisions of the ECHR.

5.37 Articles 45 and 48 of the ECHR provide that the jurisdiction of the European Court of Human Rights extends to all cases concerning the interpretation and application of the ECHR referred to it and that a party bringing a case before the European Court of Human Rights is subject to the compulsory jurisdiction of the Court. A party to the ECHR can declare that it recognizes as compulsory, without the need for special agreement, the jurisdiction of the Court.⁷⁷ Article 50 provides that if the European Court of Human Rights finds that a decision or a measure taken by a legal, or other, authority of a signatory country, is in conflict with the obligations arising from the ECHR, and if the internal law of that country allows only partial reparation to be made for the offending decision or measure, the plaintiff can obtain full reparation from an order of the European Court of Human Rights. Article 55 provides that the signatory countries will abide by decisions of the European Court of Human Rights in any case to which they are parties. Many of the signatory countries have also passed legislation giving force to the provisions of the ECHR in domestic law.⁷⁸

5.38 The provisions of the ECHR relevant to the law of privacy are Articles 8 and 10. Article 8 states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

5.41 In Campbell v Mirror Group Newspapers Ltd, Lord Hoffman observed that developments in human rights law had prompted “a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information”.⁸⁰ The underlying value that the law protects has become less about a duty of good faith and more about “the protection of human autonomy and dignity - the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”.⁸¹ Lord Hoffman observed that these changes brought about under the influence of European Court of Human Rights jurisprudence had implications for the future development of the law:

They must influence the approach of the courts to the kind of information which is regarded as entitled to protection, the extent and form of publication which attracts a remedy and the circumstances in which publication can be justified. ⁸²

5.43 The European Court of Human Rights has stated that “private life” in Article 8 “is a broad term not susceptible to exhaustive definition”.⁸³ It has held that Article 8 protects “a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature”.⁸⁴ Elements of the personal sphere that is protected by Article 8 include gender identification, name, sexual orientation and sexual life.⁸⁵ As examples, the Court found an interference with the right to a private life guaranteed by Article 8 in the following cases:

• enforcement of legislation prohibiting homosexual acts committed in private between consenting males;⁸⁶
• enforcement of legislation providing for a higher age of consent for homosexual men;⁸⁷
• discharging male and female homosexuals and bisexuals from the military forces because of their sexuality;⁸⁸
• refusing to award custody of a child to the applicant because of his homosexuality.⁸⁹

• the placement of microphones by police in a private residence in order to gather evidence in a criminal investigation;⁹⁰
• forcing a student to shave off his beard in order to be allowed to complete his university year;⁹¹
• surgical interventions on persons suspected of drug trafficking after having swallowed packets with drugs;⁹²
• use in court proceedings of medical reports concerning the applicant without his consent or without the intervention of a medical expert;⁹³
• retention of fingerprints and DNA samples of suspects even when no guilt had been established and when the investigation had been discontinued;⁹⁴
• refusal of a court to establish paternity of a still-born child and allow a change of surname and patronym from that of mother’s former husband;⁹⁵
• absence of legal basis for interception and recording of conversations between the detainee and members of his family;⁹⁶
• failure of authorities to take adequate measures to protect the applicant from the effects of severe pollution in the vicinity of steelworks;⁹⁷
• administration of medical treatment without consent during a compulsory psychiatric confinement;⁹⁸
• classification of the applicant as a security risk and withdrawal of his access card for sensitive areas of an airport;⁹⁹
• confiscation of the applicant’s passport and refusal to return it during lengthy criminal proceedings;¹⁰⁰
• search of a lawyer’s office and seizure of privileged material;¹⁰¹
• use in criminal proceedings of transcripts of telephone conversations recorded in the context of separate criminal proceedings;¹⁰²
• the absence of effective procedures for obtaining disclosure of information about tests carried out on servicemen;¹⁰³

Some leading cases on the right to respect for private and family life

PG and JH v The United Kingdom

5.46 In PG and JH v the United Kingdom,¹⁰⁵ the European Court of Human Rights held that the use of covert listening devices by police to record the applicants’ conversations at a flat, and while they were detained in a police station, breached Article 8. The interference with the applicants’ privacy could not be justified under cl 2 of Article 8 as being “in accordance with the law”, as there was no domestic law regulating the use of covert listening devices at the relevant time.

5.47 In relation to the recording of the applicants’ voices at the police station, the UK Government submitted that the recordings were made to obtain voice samples (to match with the recordings of voices in the flat) and not to obtain any private or substantive information. It argued that the “aural quality of the applicants’ voices was not part of private life but was rather a public, external feature”.¹⁰⁶ It further argued that as the recordings were made while the applicants were being formally charged with a criminal offence, it did not concern the applicants’ private life and there could be no expectation of privacy in that context.¹⁰⁷

5.48 In responding to this submission, the European Court of Human Rights emphasised that “private life is a broad term not susceptible to exhaustive definition”¹⁰⁸ and held that there is a “zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’”.¹⁰⁹ One significant, though not necessarily conclusive, factor in determining whether conduct outside a person’s home or private premises impinges on his or her private life is the person’s reasonable expectations as to privacy.¹¹⁰ This will be particularly relevant when people knowingly or intentionally involve themselves in activities that are, or may be, recorded or reported in a public manner.¹¹¹ The European Court of Human Rights held that once any systematic or permanent record comes into existence of material from the public domain, private-life considerations may arise. They would arise, for example, where material had been recorded by security services, even if no intrusive or covert information gathering method had been used.¹¹²

5.49 The European Court of Human Rights has held on numerous occasions that covert taping of telephone conversations breaches Article 8.¹¹³ The fact that the taping was done not for the content of the conversation, but for voice samples does not take it outside the scope of the protection afforded by Article 8. A permanent record was made of the voices, and the analysis of those voices was directly relevant to identifying individuals in the context of other personal data. The Court held that this recording and analysis must be regarded as concerning the processing of personal data.¹¹⁴ Accordingly, although it took place while the applicants were being charged and when in their police cell, it was an interference with their right to respect for private life within the meaning of Article 8.¹¹⁵

Peck v The United Kingdom

5.50 In Peck v The United Kingdom,¹¹⁶ the applicant had been filmed by CCTV operated by the local council in a main street of his hometown with a knife in his hands. What was not caught on camera was that Peck had a moment earlier tried to commit suicide by cutting his wrists. The council later disclosed photographs and extracts from the video footage to the media. The photographs were published in newspapers and the footage broadcast on national television in a documentary program about the Council’s CCTV system. In each case the appellant’s face was unmasked, or inadequately masked, and he was clearly recognisable. The journalistic angle taken by each of the publications was the usefulness of the Council’s CCTV system in minimising and detecting crime.

5.51 Both the Broadcasting Standards Commission and the Independent Television Commission found that there had been an unwarranted infringement of Peck’s privacy.¹¹⁷ The High Court, however, rejected Peck’s application for judicial review of the Council’s decision to release the CCTV footage on the basis that the Council was acting within its authority under the Criminal Justice and Public Order Act 1994 in promoting the effectiveness of its CCTV system in deterring crime. The Court recognised that there may be on occasion (this being one) an undesirable invasion of privacy in the use of CCTV systems but placed their documented usefulness in crime prevention and detection above this.¹¹⁸ The Court stated that “[u]nless and until there is a general right of privacy recognised by English law … reliance must be placed on effective guidance being issued by Codes of practice or otherwise, in order to try and avoid such undesirable invasions of a person’s privacy”.¹¹⁹

5.52 Peck lodged an application with the European Court of Human Rights alleging that the disclosure of the CCTV footage constituted a disproportionate interference with his right to respect for private life guaranteed by Article 8. The Government contended that the incident did not form part of Peck’s private life as it was already in the public domain.¹²⁰ That is, the applicant had waived his rights to privacy by choosing to do what he did, where he did, and the respondent simply distributed a public event to a wider public. It also contended that the applicant had waived his rights by not complaining about being filmed (to which argument Peck countered that, first, he was unaware of the camera and, secondly his complaint was not about the filming but the release of the footage to the public). The applicant pointed out that the jurisprudence on Article 8 had established that “the occurrence of an event in a public place was only one element in the overall assessment of whether there was an interference with private life, other relevant factors including the use made of the material obtained and the extent to which it was made available to the public”.¹²¹

5.53 The Court agreed with the applicant’s submission, affirming what it had said in PG and JH v the United Kingdom that some activities occurring in a public context, may yet fall within the scope of “private life”.¹²² The Court also restated what was held in PG and JH v the United Kingdom¹²³ that once a permanent record is made of CCTV footage, or other observation of a person in a public place, private life considerations may arise.¹²⁴ In this case, it found that the disclosure of the footage of Peck by the Council constituted a serious interference with Peck’s right to respect for his private life.¹²⁵

5.54 However, the Court next had to consider whether the interference was justified pursuant to cl 2 of Article 8. It held that the disclosure: had a basis in law pursuant to the Criminal Justice and Public Order Act 1994 (UK) and the Local Government Act 1972 (UK); was foreseeable; and pursued the legitimate aim of public safety, the prevention of disorder and crime and the protection of the rights of others.¹²⁶ Finally, in determining whether the disclosure was “necessary in a democratic society in the interests of national security” the Court considered whether the measures were proportionate to the legitimate aims pursued. It pointed out that, while it should be left to the competent national authorities to strike a fair balance between public and private interests, this must be subject to European supervision and must depend on factors such as the nature and seriousness of the interests at stake and the gravity of the interference.¹²⁷

5.55 The Court weighed the nature and seriousness of the interference with Peck’s private life against the strong interest of the State in detecting and preventing crime. It found that the Council had other options available to it to achieve the same objectives, including obtaining Peck’s consent to disclosure or properly concealing his identity. It finally found for the applicant, holding that the disclosure constituted a disproportionate, and therefore unjustified, interference with his private life, in violation of Article 8.¹²⁸ The Court commented that whether the interference with the applicant’s right answered a pressing social need or was proportionate to the aims pursued were principles that lie at the heart of the Court’s analysis of complaints under Article 8.¹²⁹

5.56 In the New Zealand case of Hosking & Hosking v Runting & Anor, the Court commented that the facts in Peck v United Kingdom highlight the limitations with the English approach to privacy law, namely using the breach of confidence action to protect privacy interests, even under the broadest form of the action.¹³⁰ The European Court of Human Rights was not convinced that, on the facts, the domestic courts would have found that the images “had the necessary quality of confidence” about them or that the information was “imparted in circumstances importing an obligation of confidence” so as to succeed in an action for breach of confidence.¹³¹

5.57 In McKennitt v Ash, Justice Eady observed that in the light of Peck v United Kingdom (and also PG and JH v United Kingdom¹³² ):

[A] trend has emerged towards acknowledging a “legitimate expectation” of protection and respect for private life, on some occasions, in relatively public circumstances. It is no longer possible to draw a rigid distinction between that which takes place in private and that which is capable of being witnessed in a public place by other persons. ¹³³

5.58 Another recent leading case offering guidance on the approach to privacy rights is Von Hannover v Germany.¹³⁴ The case demonstrates the width of the notion of “private life” that the European Court of Human Rights is now prepared to recognise. The applicant, Caroline von Hannover, more widely recognised as Princess Caroline of Monaco, complained that the publication by various German magazines of photographs of her in her daily life, some showing her alone and some with friends or family, violated her rights under Article 8.

5.59 Princess Caroline has had her personal life discussed, and photos of her and her family published, in the media many times and over many years. She is, in other words, in some respects a very public person. Even bearing in mind the extent of her media exposure, the Court found that her right to respect for her private life had been breached. It reiterated that the concept of private life, as protected by Article 8, extends to aspects of personal identity, including a person’s name and a person’s picture.¹³⁵ The Court went on to hold that “private life” includes a person’s physical and psychological integrity; and that Article 8 is primarily intended to ensure the development, without outside interference, of every human being’s personality. That protection extends beyond the private family circle and includes a social dimension.¹³⁶ Once again, the Court affirmed the statement that it had originally made in PG and JH v the United Kingdom,¹³⁷ and again in Peck v The United Kingdom¹³⁸ that “there is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’”.¹³⁹ .

5.60 These three case, PG and JH, Peck and Von Hannover, establish that everyone, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of protection of and respect for their private life¹⁴⁰ and that “it is no longer possible to draw a rigid distinction between that which takes place in private and that which is capable of being witnessed in a public place by other persons”.¹⁴¹

5.61 The Court in Von Hannover also had to consider whether cl 2 of Article 8 only protected against interference by a public authority with the exercise of an individual’s right to privacy, or extended to omissions that affected that right. Princess Caroline had not complained of an action by the State, but of a lack of adequate State protection of her private life and image. The Court held that Article 8 does not merely compel public authorities to abstain from interference with the rights it guarantees, but may impose positive obligations.¹⁴² “These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.”¹⁴³

5.62 At the same time, a balance must be struck between the competing interests of an individual’s right to privacy and freedom of expression.¹⁴⁴ In that regard, the Court acknowledged the essential role of the media in a democratic society to provide information and ideas on matters of public interest, even accommodating a degree of exaggeration or provocation. This freedom of expression extends to the publication of photographs, as well as articles. The Court stated, however, that the protection of a person’s rights and reputation takes on particular importance in the area of photos.

5.63 In this case, the published photos showed Princess Caroline engaged in activities of a purely private nature. They did not involve dissemination of ideas but revealed very personal, even intimate, information about the people in the images.¹⁴⁵ Hence, the Court found that the publication of the photos could not be justified under the umbrella of freedom of speech. The Court held that “the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.”¹⁴⁶ In this case, the photos made no such contribution but were published solely to satisfy curiosity. There is no entitlement in the public to know everything about public figures.¹⁴⁷

1. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, <www.echr.coe.int> at 10 January 2007 (entered into force on 3 September 1953) (“ECHR”).

2. And because of the accessibility of relevant material in English, on which our description of French law is largely based.

3. J Whitman, “The neo-Romantic Turn” in P Legrand and R Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge UP, 2003), 330.

4. M Reiman and R Zimmermann, The Oxford Handbook of Comparative Law (Oxford University Press, 2006), 1021.

5. “Verletzungen des Persönlichkeitsrechts”: see K Zweigert and H Kötz, An Introduction to Comparative Law (3rd ed, Oxford University Press, 1998), 687 (“Zweigert and Kötz”).

6. Zweigert and Kötz, 694.

7. See generally J Bell, S Boyron and S Whittaker, Principles of French Law (OUP, 1998), 354-391 (“Bell, Boyron and Whittaker”).

8. H Beverley-Smith, A Ohly and A Lucas-Schloetter, Privacy, Property and Personality: Civil Law Perspectives on Commercial Appropriation (Cambridge University Press, 2005), 147 (“Beverley-Smith, Ohly and Lucas-Schloetter”).

9. J Hauch, “Protecting Private Facts in France: The Warren & Brandeis Tort is Alive and Well and Flourishing in Paris” (1994) 68 Tulane Law Review 1219, 1233 (“Hauch”), citing Judgment of June 16, 1858, Trib pr inst de la Seine, 1858 DP III 62.

10. Beverley-Smith, Ohly and Lucas-Schloetter, 147, citing Judgment of June 16, 1858, Trib pr inst de la Seine, 1858 DP III 62.

11. Hauch, 1233-1235.

12. “This subjective view of injury, coupled with the French notion that personality rights are inalienable” have led the courts to find for the plaintiff even where there has been prior disclosure with the plaintiff’s knowledge or consent: Hauch, 1234. There must be express and specific authorization for subsequent use of previously revealed facts.

13. See B Starck, Droit Civil: Introduction (Librairies Techniques, 1972), [170], [171].

14. Bell, Boyron and Whittaker, 369.

15. If emotional suffering is shown there is no requirement to proved that the revelation was objectively offensive.

16. Hauch, 1250.

17. See E Picard, “The right to privacy in French law” in B S Markesinis (ed) Protecting Privacy (The Clifford Chance Lectures, vol 4) (Oxford University Press, 1999), 49, 51-52 (“Picard”).

18. See Picard, 76.

19. A Gigante, “Ice patch on the information superhighway: foreign liability for domestically created content” (1996) Cardozo Arts and Entertainment Law Journal 523, 543 (“Gigante”), 543.

20. Hauch, 1238, note 89, citing Judgment of May 15, 1970, Cour d’appel de Paris, 1970 DS Jur 466, 468. See also, Picard, 84.

21. Neither pregnancy (Hauch 1247, note 134) nor being in labour (Hauch, 1247, note 134) can be disclosed without consent.

22. The following may not be disclosed without the parties’ consent: plans for a divorce (Hauch, 1248, note 139); a second secret marriage (Hauch, 1248, note 140); plans of a woman for another marriage after obtaining a divorce (Hauch, 1248, note 141); a change of circumstances of conjugal and extra conjugal life (Hauch, 1248, note 142); allegation that the husband of a woman is not the father of her child (Hauch, 1247, note 137).

23. This includes a person’s home, the houses or goods he or she may use and the images of these things, the places the person goes and stays, the people he or she meets, and the debts he or she incur: Picard, 88.

24. Hauch, 1248, note 145.

25. Hauch, 1254, note 181.

26. For example: magazine invaded privacy of actor Jean-Louis Trintignant when it published authorised photographs of Trintignant and family in conjunction with an unauthorised article about his past romance with Brigitte Bardot (Gigante, 543, note 111); publication of address of country home of individual in public life a breach of privacy: Hauch, 1246, note 125).

27. See Gigante, 543, note 113. Although, Picard argues that Article 9 of the Civil Code should not apply to dead persons, unless what is involved is a violation of one’s right to exploit commercially one’s image, which is in fact a patrimonial right that can be passed on to heirs; or if the invasion of the deceased’s privacy affects living persons, who can defend infringements in their own right. Picard notes that, despite the view he takes of Article 9, some judgments have allowed legal protection of a deceased’s privacy, in order, for example to defend his or her “memory”, or where a general interest is involved. The latter justified preventing the publication of a photograph of the remains of President Mitterrand: Picard, 80-81.

28. For example, a book’s revelations about former President Mitterrand’s health invaded the privacy of Mitterrand’s wife and children (Gigante, 543, note 114); articles about Princess Caroline of Monaco also invaded the privacy of Prince Rainier and Princess Grace (Gigante, 543, note 114).

29. For example, publication of Charlie Chaplin’s autobiography did not place Chaplin’s private life in the public domain and Chaplin accordingly could object to subsequent, unauthorised disclosure of same facts in a magazine (Gigante, 543).

30. Gigante, 542, note 107; 544, note 118.

31. For example, a person who marched in a demonstration in support of homosexuals could nevertheless oppose the publication of his image, because he had a right to demand that the “secret” be kept from his family and professional colleagues:: Hauch, 1255, note 182. However, Picard argues that “where a person has himself confided about his private life, then he loses his right to protection if the newspapers merely repeat what is already well known”: Picard, 92.

32. Beverley-Smith, Ohly and Lucas-Schloetter, 152, citing Cass civ 2.1.1971, D 1971, jur, 263.

33. Beverley-Smith, Ohly and Lucas-Schloetter, 152.

34. For example, photographs taken of actress Isabelle Huppert in public place, disclosure of her companion’s name and age and revelation that the companion was the father of her child, all constituted invasions of Huppert’s privacy; photographs of Brigitte Bardot in slip and bra on private property taken with telephoto lens were an invasion of Bardot’s privacy, notwithstanding Bardot’s long prior tolerance of ‘more lascivious’ photographs; but not a person’s hobbies or vacations, such as photographing the president on vacation on a yacht: Gigante, 544, note 116.

35. Hauch, 1253, note 174, citing Judgment of Oct. 23, 1990, Cass civ 1re, 1990 Bull Civ I 158, No. 222.

36. Gigante, 545, note 123, citing Judgment of May 14, 1985, Trib gr inst 2 GP 608 (1985).

37. Hauch, 1284-1286, citing Judgment of January 31, 1989, Cass civ 1re, LEXIS Pourvoi No 87-15.139.

38. Hauch, 1223, referring to P Kayser, La Protection de la Vie Privée (Economica et Presses Universitaires d’Aix-Marseille, Paris, 1984), 9-13.

39. Beverley-Smith, Ohly and Lucas-Schloetter, 172.

40. E Picard, 89.

41. Picard, 94.

42. Picard, 95.

43. Beverley-Smith, Ohly and Lucas-Schloetter, 177.

44. Picard, 94.

45. Picard, 95.

46. Hauch, 1260-1261.

47. Hauch, 1258. This is the “re-reporting of public records” exception: at 1259.

48. Hauch, 1266-1269 citing Judgment of Nov 14, 1975, Cass. civ. 2e, 1976 DS Jur 421.

49. Hauch, 1267, citing Judgment of Dec. 17, 1973, 1976 DS Jur. 120, 121-122.

50. Hauch, 1268.

51. Hauch, 1268, citing Judgment of Dec. 17, 1973, 1976 D.S. Jur. 120, 121-122.

52. Hauch, 1268.

53. Hauch, 1269.

54. Hauch, 1269.

55. Hauch, 1269.

56. Beverley-Smith, Ohly and Lucas-Schloetter, 173.

57. Hauch, 1228.

58. Beverley-Smith, Ohly and Lucas-Schloetter, 149, citing Dabin, “Le droit subjectif”, Dalloz 1952, 169.

59. Hauch, 1261-1262, note 205, citing Judgment of May 27, 1959, Trib gr inst de la Séine, 24 RIDA 149, 152 (1959).

60. Hauch, 1262 .

61. Beverley-Smith, Ohly and Lucas-Schloetter, 151.

62. Hauch argues that “[a]n examination of the application of the French right to privacy in recent decisions indicates a marked tendency to treat private facts as private property”: Hauch, 1245.

63. Hauch, 1237, citing Judgment of March 16, 1955 Cour d’appel de Paris, 1955 DS Jur, 295.

64. Beverley-Smith, Ohly and Lucas-Schloetter, 152, citing Judgment of March 16, 1955 Cour d’appel de Paris, 1955 DS Jur, 295. In defining the right to privacy in Article 9, the “right in one’s biography” has been explicitly included: Hauch, 1238, footnote 89, citing Judgment of May 15, 1970, Cour d’appel de Paris, 1970 DS Jur 466, 468.

65. Beverley-Smith, Ohly and Lucas-Schloetter, 156.

66. Hauch, 1239-1242.

67. Hauch, 1243, citing I P Kayser, La Protection de la Vie Privée (1984), 140.

68. Hauch, 1235.

69. Quebec Charter of Human Rights and Freedoms s 5.

70. Gazette v Valiquette [1997] RJQ 30, 36. See also Aubry v. Éditions Vice-Versa [1998] 1 SCR 591.

71. City of Longueuil v Godbout (1997) 152 DLR (4th) 577, [97]-[98].

72. Aubry v. Éditions Vice-Versa [1998] 1 SCR 591, [52]-[53].

73. Aubry v. Éditions Vice-Versa [1998] 1 SCR 591, [54].

74. Aubry v. Éditions Vice-Versa [1998] 1 SCR 591, [57].

75. Aubry v. Éditions Vice-Versa [1998] 1 SCR 591, [58]. “Another situation where the public interest prevails is one where a person appears in an incidental manner in a photograph of a public place”: [59].

76. Civil Code of Quebec RSQ, chapter C-1991.

77. ECHR, article 46.

78. See, for example, the Human Rights Act 1998 (UK) s 3 and 6.

79. Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385, 397 (Eichelbaum CJ), cited with approval in Hosking v Runting [2005] 1 NZLR 1, [53] (Gault and Blanchard JJ).

80. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 [51] (Lord Hoffman).

81. Campbell [51] (Lord Hoffman).

82. Campbell [52] (Lord Hoffman).

83. PG and JH v the United Kingdom 44787/98 [2001] Eur Court HR 550 (25 September 2001), [56]; Peck v The United Kingdom44647/98 [2003] Eur Court HR 44 (28 September 2003), [57].

84. Peck v The United Kingdom 44647/98 [2003] Eur Court HR 44 (28 September 2003), [57]. See, for example, Burghartz v Switzerland, 16213/90 [1994] Eur Court HR 2 (22 February 1994); Friedl v Austria, 15225/89 [1995] Eur Court HR 1 (31 January 1995); Niemietz v Germany, 13710/88 [1992] Eur Court HR 80 (16 December 1992); and Halford v. the United Kingdom 20605/92 [1997] Eur Court HR 32 (25 June 1997).

85. See, for example, B v France, 13343/87 [1992] Eur Court HR 40 (25 March 1992); Burghartz v Switzerland 16213/90 [1994] Eur Court HR 2 (22 February 1994); Dudgeon v the United Kingdom, 7525/76 [1981] Eur Court HR 5 (22 October 1981); and Laskey, Jaggard and Brown v the United Kingdom, 21627/93; 21826/93; 21974/93 [1997] Eur Court HR 4 (19 February 1997).

86. Dudgeon v The United Kingdom 7525/76 [1981] Eur Court HR 5 (22 October 1981): The right affected by the impugned legislation was held to protect an essentially private manifestation of the human personality: [60]. See also Norris v Ireland 10581/83 [1988] Eur Court HR 22 (26 October 1988); Modinos v Cyprus 15070/89 [1993] Eur Court HR 19 (22 April 1993).

87. Sutherland v UK 25186/94 [2001] Eur Court HR 234 (27 March 2001); L and V v Austria 39392/98; 39829/98 [2003] Eur Court HR 20 (9 January 2003); S L. v Austria 45330/99 [2003] Eur Court HR 22 (9 January 2003); Ladner v Austria 18297/03 [2005] Eur Court HR 57 (3 February 2005).

88. Lustig-Prean and Beckett v UK 31417/96; 32377/96 [1999] Eur Court HR 71 (27 September 1999); Smith and Grady v UK 33985/96; 33986/96 [1999] Eur Court HR 72 (27 September 1999), Perkin and R v UK 43208/98;44875/98 [2002] Eur Court HR 690 (22 October 2002) and Beck, Copp and Bazeley v UK 48535/99; 48536/99; 48537/99 [2002] Eur Court HR 684 (22 October 2002).

89. Salgueiro Da Silva Mouta v Portugal 33290/96 [1999] Eur Court HR 176 (21 December 1999).

90. Vetter v France 59842/00 [2005] Eur Court HR 350 (31 May 2005). The surveillance was not done in accordance with, nor clearly authorised by, the covering domestic law, the Code of Criminal Procedure and the common law. Accordingly, the Court held that the applicant had not enjoyed the minimum degree of protection to which citizens were entitled under the rule of law in a democratic society.

91. TIG v Turkey 8165/03 [2005] Eur Court HR.

92. Komba v Portugal 18553/03 [2005] Eur Court HR; Bogumil v Portugal 35228/03 [2005] Eur Court HR.

93. Le Lann v France 7508/02 [2006] Eur Court HR (10 October 2006).

94. S and Marper v United Kingdom 30562/04 and 30566/04 [2007] Eur Court HR (16 January 2007).

95. Znamenskaya v Russia 77785/01 [2005] Eur Court HR (2 June 2005).

96. Wisse v France 71611/01, [2005] Eur Court HR 897 (20 December 2005).

97. Fadeyeva v Russia 55723/00, [2005] Eur Court HR 376 (9 June 2005).

98. Storck v Germany 61603/00 [2005] Eur Court HR (16 June 2005).

99. Novoseletskiy v Ukraine 47148/99 [2005] Eur Court HR (22 February 2005).

100. Iletmus v, Turkey 29871/96 [2005] Eur Court HR (6 December 2005).

101. Sallinen v Finland 50882/99 [2005] Eur Court HR (27 September 2005).

102. Matheron v France 57752/00 [2005] Eur Court HR (29 March 2005).

103. Roche v UK 32555/96 [2005] Eur Court HR (19 October 2005).

104. Kalanyos & Others v Romania 57884/00 [2005] Eur Court HR (failure of the authorities to prevent the burning of houses belonging to Roma villagers); MA v United Kingdom 35242/04 [2005] Eur Court HR (deficient judicial process resulting in father’s contact with his daughter being greatly minimised and negatively affected); Zawadka v Poland 48542/99 [2005] Eur Court HR 421 (23 June 2005); Bove v Italy 30595/02 [2005] Eur Court HR 30 June 2005; Reigado Ramos v Portugal 73229/01 [2005] Eur Court HR (22 November 2005) (measures taken to enforce a father’s right of access to his child); Monary v Romania and Hungry [2005] 71099/01 Eur Court HR (5 April 2005); Karadzic v Croatia [2005] 35030/04 Eur Court HR (15 December 2005) (measures taken by authorities to enforce court decisions ordering the return of children. to a parent); Shofman v Russia 74826/01 [2005] Eur Court HR (24 November 2005) (the impossibility of refuting paternity after expiry of one-year time-limit from date of registration notwithstanding evidence from DNA testing); Niedzwiecki v Germany 58453/00 [2005] Eur Court HR (25 October 2005) (denial of child benefit to foreigners not in possession of an unlimited residence permit); Sisojeva v Latvia 60654/00 [2005] Eur Court HR (16 June 2005) (prolonged refusal of authorities to regularise the applicant family’s stay in the respondent state notwithstanding the length of time the family had spent there and its close links with that state); Tuquabo Tekle &Ors v Netherlands 60665/00 [2005] Eur Court HR (1 December 2005) (refusal to allow a daughter to join her foreign parent in the country where the latter was legally resident); Ostrovar v Moldova 35207/03 [2005] Eur Court HR (13 September 2005); Baginski v Poland 37444/97 [2004] Eur Court HR (11 October 2004) (denial of visit to prison by members of the prisoner’s family); Xenides Arestis v Turkey 46347/99 [2005] Eur Court HR (22 December 2005) (denial of access to home); LM v Italy 60033/00 [2005] Eur Court HR (8 February 2005) (search of home); Moldovan and others v Romania (No 2) 41138/98; 64320/01 [2005] Eur Court HR (12 July 2005) (failure of authorities to ensure adequate living conditions for families whose homes were burned by a mob including police officers); Novoseletskiy v Ukraine 47148/99 [2005] Eur Court HR (22 February 2005) (adequacy of measures taken to return an apartment to the tenant after unlawful occupation by a third party during the tenant’s absence); Ostrovar v Moldova 35207/03 [2005] Eur Court HR 596 (13 September 2005); Jankavskas v Lithuania 59304/00 [2005] Eur Court HR (24 February 2005); Argenti v Italy 56317/00 [2005] Eur Court HR (10 November 2005); Salvatore v Italy 42285/98 [2005] Eur Court HR (6 December 2005); Wasilewski v Poland 63905/00 [2005] Eur Court HR (6 December 2005); Drozdowski v Poland 20841/02 [2005] Eur Court HR (6 December 2005); Zappia v Italy 77744/01 [2005] Eur Court HR (29 September 2005) (interference with prisoners’ correspondence); Forte v Italy 77986/04 [2005] Eur Court HR (10 November 2005); Goffi v Italy 55984/00 [2005] Eur Court HR (24 March 2005) (restriction on a bankrupt’s receipt of correspondence); Keles v Germany 32231/02 [2005] Eur Court HR (27 October 2005) (expulsion of a foreign national after a lengthy period of residence in the expelling country).

105. PG and JH v the United Kingdom 44787/98 [2001] Eur Court HR 550 (25 September 2001). (PG and JH).

106. PG and JH, [54].

107. PG and JH, [54].

108. PG and JH, [56].

109. PG and JH, [56].

110. PG and JH, [57].

111. PG and JH, [57].

112. PG and JH, [57].See also Rotaru v Romania 28341/95 [2000] Eur Court HR 192 (4 May 2000).

113. PG and JH, [59].

114. PG and JH, [59].

115. PG and JH, [60].

116. Peck v The United Kingdom 44647/98 [2003] Eur Court HR 44 (28 September 2003) (“Peck”).

117. Peck, [24], [26].

118. Peck, [32].

119. Peck, [32].

120. Peck, [53].

121. Peck, [56].

122. Peck, [57].

123. Peck, [57].

124. Peck, [58].

125. Peck, [63].

126. Peck, [67].

127. Peck, [77], affirming Z v Finland, 22009/93 [1997] Eur Court HR 10 (25 February 1997).

128. Peck, [87].

129. Peck, [106].

130. Hosking & Hosking v Runting & Anor [2005] 1 NZLR 1, [51] (Gault and Blanchard JJ).

131. Peck, [111].

132. PG and JH.

133. McKennitt & Ors v Ash & Anor [2005] EWHC 3003 (QB), [50].

134. Von Hannover v Germany 59320/00 (2005) 40 EHRR 1, (“Von Hannover”)

135. Von Hannover, [50].

136. Von Hannover, [69].

137. PG and JH v the United Kingdom 44787/98 [2001] Eur Court HR 550 (25 September 2001).

138. Peck v The United Kingdom 44647/98 [2003] Eur Court HR 44 (28 September 2003).

139. Von Hannover, [50].

140. Von Hannover, [69].

141. McKennitt & Ors v Ash & Anor [2005] EWHC 3003 (QB), [50] (Eady J).

142. Von Hannover, [57]. See also Z v Finland 22009/93 [1997] Eur Court HR 10 (25 February 1997): protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private life. The domestic law must therefore afford appropriate safeguards to prevent any such disclosure as may be inconsistent with the guarantees in Article 8.

143. Von Hannover, [57].

144. Von Hannover, [57] [58].

145. Von Hannover, [58]-[59], [61].

146. Von Hannover, [76]; see also [63].

147. Von Hannover, [67], [77].