Male celebrity has affair with woman. Woman shares story with public. Woman’s version of events gets shut down by the courts. The end.
It is an all too familiar story that seems to repeat itself over and over again. When it comes to information disclosing the infidelity of powerful men, national courts have often been more than helpful in expeditiously securing the silence of the women involved in such affairs, accrediting more weight to the man’s claims of privacy, than the woman’s right to tell the tale of what was ultimately her affair as well.
Gill Philips, director of editorial legal services for the Guardian, wrote about the approach of UK courts to this issue in 2010, arguing that these cases were not so much about protecting anyone’s privacy, but “about protecting a male-dominated view of the world where it is legitimate to have sex with whoever they want and not have to account for it.” This, she argued, “goes to the heart of a much deeper, male-orientated view of society and relationships.”
While the legal landscape in the UK might be changing, as evidenced by cases as Ferdinand v. MGN and Steve McClaren v. NGN, the European Court of Human Rights has continued to tilt the balance in favour of claims advanced by men with public roles based on the right to respect for their private life. As recently as 2013, the Court approved of the Finnish courts silencing a woman who had published a book about her relationship with the (now former) Finnish Prime Minister, Matti Vanhanen. The case, Ruusunen v. Finland, concerned Susan Ruusunen, a single mother, who had been dating Vanhanen for two years while he was still in office. Vanhanen had not objected to her writing about their relationship and even posed for the cover photo of the book together with Ruusunen. Nevertheless, she and her publisher were criminally prosecuted and her book was taken out of circulation. While the Court acknowledged that the ex-girlfriend should be able to tell her story, the panel (consisting of three female and four male judges) stumbled over the fact that Ruusunen had discussed details of the sex life of two consenting adults, namely her and Vanhanen. No sex please, we’re judges.
In the Court’s deliberations, no attention was paid to Ruusunen’s right to tell her story as a matter of personal identity – the entire privacy v. freedom of expression assessment was conducted from the perspective of Vanhanen’s right to privacy. It was therefore refreshing in 2014 to read the Court’s judgment in Couderc and Hachette Filipacchi Associés v. France. The case concerned the publication of an article disclosing the identity of the illegitimate child of Prince Albert of Monaco and “Ms C.”. The article contained an interview with Ms C. and photographs of the mother, father, and child. These were published in French tabloid Paris Match and a similar German magazine called Bunte. The Prince sued both publications, in spite of acknowledging later that the child was indeed his.
The story bore a number of similarities to the Ruusunen case. Both concerned the documentation of a relationship between an “ordinary person” and a public figure; in both cases the story was told by the woman involved in the relationship; and both accounts included photographs of the men, who had consented to these pictures being taken.
What was particularly refreshing was that the European Court’s judgment explicitly took into account the interests of both the child and its mother in telling their story, alongside weighing the usual criteria the Court considers when balancing privacy against freedom of expression.
So far so good; progress at the European Court: great. In October 2014, however, the Court referred the decision to the Grand Chamber at the request of France. This is curious on various levels, most of all as it is not clear what in the Chamber’s decision could constitute a “serious” enough question to merit the referral. One would certainly not hope that the Monegasque reigning monarch’s involvement in the case would suffice for meeting that threshold.
It is important that the Grand Chamber in its upcoming decision holds the line previously taken by the Court for a number of reasons, two of which are highlighted here. A third-party intervention, highlighting other important aspects of the case, including the leeway that should be accorded to journalists when reporting on matters of public interest, was submitted to the Court by the Media Legal Defence Initiative, and can be accessed here.
First, the decision of an individual to publicise information about their own personal identity is an important aspect of that individual’s private and family life. This includes information about their family lineage and personal relationships. The right to make this decision should be held in equally high esteem for a public figure (in the cases just mentioned, Vanhanen and Prince Albert) or the women they entered into romantic relationships with (Ruusunen and Ms C.). It is up to each of these individuals to decide what information they wish to share with the public and, where their wishes conflict, courts must be very careful in balancing the interests at stake.
This applies all the more when considering the rights of the child, in this case “A.”, the son of Ms C. and Prince Albert. Social identity and the recognition of that identity are especially important for children: who their parents are to a great extent determines their place in society. The UN Human Rights Committee stated in its General Comment 14 that “the right of the child to preserve his or her identity is guaranteed by the Convention (art. 8) and must be respected and taken into consideration in the assessment of the child’s best interests”. When weighing the interests of all parties concerned, a court should therefore consider the impact its decision will have on the child’s identity. This is exactly what the Chamber did in its consideration of the case (paragraph 73):
“The Court notes that in making these disclosures, the child’s mother clearly sought to secure public recognition of her son’s status and of the fact that the Prince was his father, which she saw as crucial factors in ending the secrecy surrounding her son. In order to do this, she made public, in addition to the facts concerning the child’s paternity, certain information which was not necessary and which fell within the sphere not only of her own private life but also of that of the Prince.”
Preventing an individual from making public information about their personal or social identity constitutes a strong interference with that individual’s personal autonomy. Any restriction on the exercise of that right therefore requires strict scrutiny. By according proper weight to the interests of Madam C. and her son A., the Chamber was right in its approach, and it can only be hoped that the European Court’s Grand Chamber will firmly uphold this view when it hears the case on 15 April.
Nani Jansen is the Legal Director of the Media Legal Defence Initiative. The views expressed in this blog post are her own.