Publicising the Private Lives of Public People: A Comparison Between the German and European Jurisprudence in the “Caroline-Cases”, the British Case Law and the Legal Situation in New Zealand

Abstract

One of the most controversially discussed topics in the legal literature during the time of my studies in Germany was the question in how far the right to privacy of public persons restricts the press’ freedom of expression. The academic debate originated in the efforts of Princess Caroline von Hannover to prevent the publication of pictures, which showed her in private life situations, partly accompanied by her children. In a period of almost 20 years, Caroline exhausted all possible legal remedies twice, including constitutional complaints to the German Federal Constitutional Court and applications to the European Court of Human Rights. New Zealand’s jurisprudence on the protection of privacy is characterised by a case that has been brought to the Court of Appeal by TV and radio journalist Michael Hosking. By extensively referring to both United States and English case law, the Court of Appeal’s majority established criteria for the existence of a tort for invasion of privacy. As the Court of Appeal’s conclusion differs significantly from the British approach, the following article would not be a comprehensive description of the relevant law without briefly assessing the level of privacy protection under English law. However, the American approach will not be scrutinised in this paper. Similar to the Court of Appeal’s majority in the Hosking case, the Unites States courts acknowledged the existence of a tort for invasion of privacy. The following article examines the jurisprudence of the German Federal Constitutional Court and the European Court of Human Rights in the “Caroline-cases”, before describing the relevant English case law. Subsequently, New Zealand’s approach on the protection of privacy will be scrutinised. The different approaches will be assessed and compared with each other. I will come to the conclusion, that by applying the principles established by the European Court of Human Rights both German and English courts strengthened the level of privacy protection. I will further illustrate that the majority of New Zealand’s Court of Appeal acknowledged the new tort for breach of privacy, rather than following English case law by extending the existing tort for breach of confidence. Finally, this article will show that under New Zealand case law the freedom of the press generally outweighs privacy, if the invasion of privacy took place at a public space; or in other words, that a reasonable expectation of privacy at public places is only acknowledged under exceptional circumstances.