Public interest journalism and privacy in the ECtHR case law

A critical appraisal

Abstract

The ECtHR’s jurisprudence on cases concerning the clash between the right to privacy and freedom of expression has grown considerably in the last two decades. The category of ‘public interest’, complemented by the status of ‘public figures’, is the cornerstone of the relevant ECtHR jurisprudence. This study examines how the contours of these vague concepts can be defined on the basis of case law, and what problems and inconsistencies arise from the Court’s approach to these aspects. According to the conclusions of this paper, the public‐interest category as applied by the ECtHR is excessively broad and, in its present form, does not serve as an adequate criterion for delineating the limits of the right to privacy. A more robust protection of privacy is necessary, especially in cases where it cannot be demonstrated convincingly that the information at issue relates to any significant public affair. Moreover, the public figure category is also ill-suited to assist in defining the boundaries of free speech in these cases. First, it does not acknowledge – or at least not to the degree required – that individuals within this category also possess a right to privacy. Second, treating both politicians and celebrities alike as public figures undermines the democratic justification, which would otherwise reserve heightened free speech protection for matters that are genuinely related to public affairs. Third, the distinction between public figures and others offers no solution when a private individual becomes involved in a public matter.