THIRD SECTION
DECISION
Application no. 469/21
W.D. and Others
against Germany
The European Court of Human Rights (Third Section), sitting on 27 September 2022 as a Committee composed of:
Georgios A. Serghides, President,
Anja Seibert-Fohr,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the application (no. 469/21) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 December 2020 by the applicants listed in the appended table (“the applicants”), who were represented by Mr M. Rudolph, a lawyer practising in Cologne;
Having regard to the decision to grant the applicants anonymity, in accordance with Rule 47 § 4 of the Rules of the Court;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the rejection of the applicants’ claims for compensation against a newspaper for violation of their right to privacy.
2. The first and second applicants are the parents of a daughter, the third applicant. The mother was 60 years old when the child was born in August 2013. On 25 October 2013 a newspaper published an article stating that a local woman aged 60 had given birth to a healthy child. The article did not provide any additional information about the applicants, but a medical expert was quoted as saying that pregnancy in women over the age of 60 was usually the result of medical intervention and stated his ethical objections to motherhood at such a late age.
3. The parents were confronted with the article at their workplaces and stated that they had felt stigmatised in public. At their request, on 5 November 2013 the Koblenz Regional Court granted an injunction against any further publication of the article. This order was confirmed in the main proceedings and the applicants were awarded compensation of EUR 15,000. However, on the newspaper’s appeal, on 15 November 2016 the Court of Appeal partly annulled the first‑instance ruling and dismissed the applicants’ claim for compensation for non-pecuniary damage. While it confirmed that the article had violated the applicants’ right to privacy, it considered that the breach was not sufficiently severe to warrant monetary compensation. Notably, apart from the mother’s age and the fact of the birth itself, about which the parents themselves had informed those around them shortly thereafter, the article had not provided any additional information about the applicants’ personal background.
4. On 16 June 2020 the Federal Constitutional Court declined to consider the constitutional complaint, without providing reasons (no. 1 BvR 100/19).
5. The applicants complained to the Court under Article 8 of the Convention about the rejection of their claims for compensation. The article, and notably the speculation about the means of conception, had had a negative impact on the family’s social life and violated their right to privacy. Notably, the third applicant’s relationship with her parents and her personal development had been endangered. Furthermore, the publication served no legitimate interest. The general information about late pregnancies could have been published without reference to the applicants, the latter only serving sensationalist motives.
THE COURT’S ASSESSMENT
6. The general principles for assessing a claim to compensation for non‑pecuniary damage resulting from a violation of the right to privacy have been summarised in Kahn v. Germany (no. 16313/10, § 74, 17 March 2016) and Egill Einarsson v. Iceland (no. 2) (no. 31221/15, §§ 31‑37, 17 July 2018). The Court reiterates, in particular, that the choice of the means to secure compliance with Article 8 is a matter that falls within the Contracting States’ margin of appreciation and, accordingly, that not every infringement requires monetary compensation. Where the balancing exercise between the rights under Articles 8 and 10 of the Convention has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case‑law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Egill Einarsson, cited above, § 35).
7. The Court of Appeal considered that the article made the applicants identifiable only to readers who had previously been informed of the third applicant’s birth, in many cases by the applicants themselves. Regarding the alleged impact on their social life it noted that, due to the unusual circumstances surrounding the birth, the applicants had likely been the subject of discussion even before publication of the article. The court thus took into account the parents’ conduct prior to the publication.
8. With respect to the nature and gravity of the violation the courts criticised, notably, the ethical objections raised by the medical expert in conjunction with the reference to the applicants. They ruled that the article violated the applicants’ right to privacy and, consequently, issued an order to cease further publication. However, the Court of Appeal considered that the violation was not sufficiently serious to warrant compensation for non‑pecuniary damage. In this regard it pointed out that the birth of a child does not come solely within the private sphere of the persons concerned by it, but also falls within the public sphere (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 107, 10 November 2015). Furthermore, the court found that, overall, the article had been objective and lacked any sensationalist elements. Notably, the newspaper had not published any additional information about the applicants’ family and had made it clear that no details about the conception were known. Lastly, a negative impact on the child’s development appeared unlikely since the third applicant had only been two months old at the time of publication.
9. In the light of the above, the Court considers that the domestic courts analysed the specific circumstances of the case and, by ordering the newspaper to cease publication of the article but denying the applicants compensation, struck a fair balance between the competing rights. Accordingly, there are no strong reasons to substitute its view for that of the domestic courts.
10. It follows that the applications must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 October 2022.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President
Appendix
List of applicants:
No.
Applicant’s Name
Year of birth
Nationality
1.
W. D.
1952
German
2.
J. D.
1952
German
3.
R. D.
2013
German