The case of Axel Springer vs Germany was decided by the Grand Chamber of the European Court of Human Rights on the 7th February of 2012.

Why is the case important?

This judgement exemplifies how the European Court of Human Rights is balancing the freedom of expression

and specifically the freedom of press as enshrined in Article 10 of the European Convention on Human Rights

with the right of individuals to private life as guaranteed by Article 8 of the Convention.

Principle facts

A famous German television actor was arrested at the Oktoberfest for possession of a small amount of cocaine in 2004.

He later confessed the possession and consumption in the criminal proceedings and was sentenced to a fine of 18,000 Euro.

The applicant, the public limited company Axel Springer, publishing the German newspaper Bild,

released two articles with photos of the arrest and the trial.

Its sources were mainly the statements of the police officer, the prosecutor and the trial itself.

The actor sued the Axel Springer AG after each publication for violation of his personality rights before the German civil courts.

The courts ruled in his favour and granted injunctions against further publication of the articles.

While the applicant appealed against the judgement, they were either confirmed or their appeals were denied.

Subsequently, the Axel Springer AG brought the case before the European Court of Human Rights,

claiming that the injunctions of the German courts were a violation of Article 10 of the Convention.

The courts finding

The parties agreed that the injunction amounted to an interference with Article 10, paragraph 1 of their Convention.

There was also no dispute that the interference was prescribed by law and had a legitimate aim, that is the protection of private life.

The legal aspect disputed between the parties was whether the interference was necessary in a democratic society.

The court reiterated general principles regarding the role of the press as an essential element in a democratic society.

In order to impart ideas and information regarding all matters of public interest, the media fulfilled in the court's view the role as a public watchdog,

a role which is also tackled when the press informs the public about court proceedings.

However, the court also held that the freedom of press is also subject to certain duties and limitations regarding the reputation and rights of others.

The reputation of a person is protected by Article 8 of the Convention.

This protection is, however, limited when the loss of reputation is a foreseeable consequence of one's own conduct, for example by committing criminal offences.

When assessing whether the interference to protect the right of another is necessary, the European Court of Human Rights has, in its own view,

the role of verifying whether the domestic authorities struck a fair balance between the values and rights in conflict.

The court allows domestic authorities to exercise a margin of appreciation, thereby it refuses to replace the domestic court's evaluation.

Rather, the court reviews whether the national judgment did take the provisions of the European Convention on Human Rights

and the court's case law regarding the relevant balancing criteria for Article 8 and Article 10 sufficiently into account.

The balancing criteria developed by the European Court of Human Rights are

if the press article contributes to a debate of general interest, how well known the person concerned is,

what the subject of the report is, the conduct of the person prior to publication,

the method of obtaining the information and its veracity, the content, form and consequences of the publication,

as well as the severity of the sanction imposed.

According to these balancing criteria, the court found that the injunctions of German courts were not necessary in a democratic society

and therefore a violation of Article 10 of the Convention.

Thereby, Germany violated the duty to respect freedom of press.

In the court's view, the injunctions could have a chilling effect on the freedom of press and endangered thereby a democratic value.

The balancing of rights is necessarily a case-by-case exercise,

and the criteria developed by the European Court of Human Rights are clear, reasonable and relevant guidance for domestic authorities to reach a just conclusion.

However, the weight assigned by the court to certain criteria in this case, especially the contribution to general debate or the prior conduct, may be disputed.

Another key criticism was raised by the dissenting opinion of Judge Lopez-Guerra, who argued that the court acted as a fourth instance in this specific case,

replacing the domestic authorities' evaluation with its own.