Insights European Court of Human Rights finds no violation of Article 8 in relation to publication of photos of German footballer’s children.

The applicants, Katharina-Maria Kahn and David Kahn, were the children of Oliver Kahn, former goalkeeper for the German national football team, and his ex-wife Simone Kahn.

Between July 2004 and June 2009 the German magazines Neue Woche and Viel Spass, owned by the same publisher, printed several photos of the applicants with their parents.

During this time, the applicants made various successful applications to the German courts seeking orders against the publisher to prevent further publication and, when further publication occurred nonetheless, fines for breach of the court orders.

Following publication of yet another set of photos in 2007, the publisher was ordered to pay further fines to the applicants.  The applicants also applied to the Hamburg Regional Court for an order that the publisher pay them at least €40,000 each by way of pecuniary compensation.

The Hamburg Court found in the applicants’ favour and awarded them the sums claimed.  The court considered that there had been a serious breach of their right to protection of their personality rights, as all the photos showed them in situations that were protected against interference, namely in the company of their parents or on holiday.  The court noted that the requests to refrain from publication had proved ineffective as the publisher had printed the photos on several occasions in spite of the ban on publication.  The court held that it was necessary in the circumstances to make an award in respect of pecuniary damage that contained both a preventative and a compensatory element.

However, the decision was overturned by the Hamburg Court of Appeal in July 2008.  The Court of Appeal accepted that the publisher had persistently breached the ban on publication as well as the applicants’ right to their own image, despite also being fined.  Nevertheless, the Court of Appeal held that it was not necessary to award pecuniary compensation, as the ban on publication had been granted on the basis that the court could order the publisher to be fined for breach.  The right to pecuniary compensation was therefore of a subsidiary nature and no award could be made where there were already other ways of protecting an individual’s personality rights in place.

The Federal Court of Justice rejected the applicants’ requests on the same basis and dismissed their appeals.  The applicants applied to the ECtHR.

The ECtHR noted that the question was not whether the applicants had been afforded protection against the undisputed breaches of their right to respect for their private life.  The issue was whether, from an Article 8 point of view, the protection afforded to them, i.e. the option of having fines imposed on the publisher, had been sufficient, or whether a financial compensatory award was the only way to ensure the necessary protection.

The ECtHR noted that the fines imposed had been increased each time.  Further, it had been open to the applicants to appeal the amounts awarded, but they had not done so.

In addition, the ECtHR observed that, as a result of the actions brought by the applicants, the publisher had been obliged to pay fines totalling approximately 68% of the amount claimed.

The ECtHR also took into consideration the nature of the material that had been published unlawfully.  It noted that the Court of Appeal had found that, although publication of the photos had breached the applicants’ right to their own image, the interference had not been sufficiently serious to justify or necessitate an award of financial compensation.  The Federal Court of Justice had specified that the applicants, whose faces had not been visible or had been pixelated, could only be identified on the photos through the presence of their parents and the accompanying text, and that the main subject of the reports had not been the applicants themselves, but rather their parents’ relationship following their divorce.  The ECtHR accepted the finding of the German courts that, in view of the nature of the photos, there had been no call to award additional compensation.

Accordingly, the ECtHR concluded that the German courts had afforded the applicants sufficient protection.  There had therefore been no violation of Article 8.  (Kahn v Germany (application no. 16313/10) 17 March 2016 — to read the judgment in full, click here).