Voorhoof, Dirk

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Ghent University Academic Bibliography

IRIS 2015-5/1European Court of Human Rights: Bohlen and Ernst August von Hannover v. GermanyIn two cases related to humorous cigarette advertisements, the European Court of Human Rights found thatthere had been no reason for the domestic authorities to interfere with the freedom of commercial speech inorder to protect the right of reputation and the right to their own names of two public persons referred to in theadvertisements, without their consent. The European Court found, in particular, that the German Federal Court ofJustice had struck a fair balance between freedom of expression (Article 10) and the right to privacy (Article 8).The first applicant, Dieter Bohlen, is a well-known musician and artistic producer in Germany, while the secondapplicant, Ernst August, is the husband of Princess Caroline of Monaco. In 2000, the company British AmericanTobacco (Germany) used in an advertisement campaign the first names and references to events associated withMr. Bohlen and Mr. Von Hannover, who both sought injunctions prohibiting the distribution of the advertisements.The cigarette manufacturer immediately stopped the advertisement campaign, but refused to pay the sums theapplicants claimed in compensation for the use of their first names. The Hamburg Regional Court and the Courtof Appeal upheld the claims and awarded the applicants EUR 100 000 and EUR 35 000 respectively. However, theFederal Court of Justice quashed the Court of Appeal judgments and held that, despite their commercial nature, theadvertisements in question were apt to help shape public opinion and had not exploited the applicants’ good nameor contained anything degrading. On this basis, it dismissed the applicants’ claims seeking financial compensation.Mr. Bohlen and Mr. Von Hannover lodged applications with the European Court of Human Rights, complaining thatthe ruling of the Federal Court of Justice had breached their right to privacy and their right to their own names,protected by Article 8 of the European Convention on Human Rights.The European Court reiterated the relevant criteria laid down in its case-law for assessing the manner in whichthe domestic courts had balanced the right to respect for private life against the right to freedom of expression:the contribution to a debate of general interest, the extent to which the person in question was in the public eye,the subject of the report, the prior conduct of the person concerned and the content, form and impact of thepublication. The Court gave the opinion that the advertisements were able to contribute to a debate of generalinterest to some degree, as they dealt in a satirical manner with events that had been the subject of publicdebate. It also considered that the applicants were sufficiently well-known to be unable to claim the same degreeof protection of their private lives as persons who were unknown to the public at large or have not been in thepublic eye before. Furthermore, the image of and references to the applicants in the advertisements had not beendegrading, while they obviously had a humorous character. The Court agreed with the finding by the GermanFederal Court of Justice that, in this case, priority was to be given to the right to freedom of expression of thetobacco company and that the dismissal of the applicants’ claim for financial compensation was justified, as theyalready had obtained the suspension of the distribution of the advertisements at issue. Hence a fair balancehad been struck between freedom of expression and the right to respect for private life. The European Courtfound therefore, by six votes to one, that in both cases there had been no violation of Article 8 of the EuropeanConvention on Human Rights.• Arrêt de la Cour européenne des droits de l’homme (cinquième section), affaire Bohlen c. Allemagne, requête n◦53495/09, 19 février 2015(Judgment by the European Court of Human Rights (Fifth Section), case of Bohlen v. Germany, Appl. No. 53495/09, 19 February 2015)http://merlin.obs.coe.int/redirect.php?id=17485FR• Arrêt de la Cour européenne des droits de l’homme (cinquième section), affaire Ernst August von Hannover c. Allemagne, requête n◦53649/09,19 février 2015 (Judgment by the European Court of Human Rights (Fifth Section), case of of Ernst August von Hannover v. Germany, Appl. No.53649/09, 19 February 2015)http://merlin.obs.coe.int/redirect.php?id=17486FRDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaIRIS 1The objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Bohlen and Ernst August von Hannover v. Germany

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European Court of Human Rights: Bohlen and Ernst August von Hannover v. Germany

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