The origins of the public figure doctrine in the European Convention on Human Rights can be traced to Lingens v Austria where it formed part of a move to protect freedom of expression from the risk of elected officials stifling the press with defamation law.6 At that time reputation had not been identified as a Convention right, thus when the Court expounded the distinction it was not assessing two rights of equal status, it was considering whether an interference with Article 10 ECHR could be justified, and as reputation was a mere legitimate aim prioritising freedom of expression was not only compatible with, but was essential to that framework. Since Lingens the Strasbourg court has recognised both reputation7 and privacy vis-à-vis the press,8 as human rights protected by Article 8 ECHR. Under this framework reputation and privacy are not mere exceptions, but rights that must be balanced against freedom of expression with neither automatically taking priority over the other.9 This is very different from the earlier case law, which as Judge Loucaides acknowledged in Lindon v France, was calibrated to protect freedom of expression.10 Indeed Judge Loucaides argued in Lindon that the principle “that there is more latitude in the exercise of freedom of expression … in the cases of criticism of politicians … should not be interpreted as meaning that the reputation of politicians is not entitled to the same legal protection as that of any other individual”, as reputation “is a sacred value for every person including politicians and is safeguarded as a human right under the Convention for the benefit of every individual without exception”.11 The Court nevertheless continues to state that public figures are not entitled to the same level of protection; whilst the public figure doctrine has migrated across privacy,12 insulting speech,13 hate speech,14 inciting violence,15 as well as data-protection law including the “right to be forgotten”.16
If we turn to consider how the Court approaches public figure privacy cases it is apparent that there are numerous problems. First, although the Court distinguishes between public and private figures the category of public figures has grown so broad that it is difficult to predict. Second, within the category of persons that the Court designates as public figures, it appears that there are subcategories subject to different standards, but the operation of this is uncertain. Third, there is confusion as to the analytical stage at which “public figure” status is relevant, with the doctrine affecting the application of rights in at least three different ways. The net result is that neither the rationale for the Court's approach, nor its operation, is sufficiently transparent.
A. Who Is a Public Figure?
Whilst a degree of uncertainty is often prevalent in the Convention jurisprudence, if a concept purports to determine who is entitled to protection we might expect to know who is affected. Indeed the Strasbourg Court famously rejected the German par excellence approach (which distinguished between figures of contemporary society “par excellence” and “relatively” public figures) on the basis that the criteria “were not sufficient to protect the applicant's private life effectively”.17 Although initially the Court limited the public figure concept to those exercising official functions,18 the Court has subsequently vastly expanded public figures contradicting its stance on the need for clarity and rendering the concept increasingly laden with moralistic determinations. The doctrine now extends far beyond elected officials and even celebrities to include businessmen,19 journalists and lawyers,20 well-known academics,21 as well as other persons who have a “position in society”22 or have “entered the public scene”23 rendering the scope of its application difficult to predict.
The initial shift was evident in the trajectory of the Von Hannover proceedings. In several cases Princess Caroline von Hannover has argued that the publication of photographs of her in public places violates her right to respect for private life. Her first application was upheld and the Court drew a “fundamental distinction” between reporting facts relating to “politicians in the exercise of their functions” and reporting details of the private life of an individual, such as the Princess, who “does not exercise official functions”.24 The Court emphasised that while “in the former case the press exercises its vital role of ‘watchdog’ in a democracy by contributing to impart[ing] information and ideas on matters of public interest … it does not do so in the latter case”.25 This was criticised on the basis that the Court failed to consider an appropriate degree of protection for “intermediate figures” such as the Princess who do not perform any formal state functions, but enjoy a sufficiently high public profile to be of interest to the public.26 The Grand Chamber revisited its approach when it considered her second application, on that occasion it refused to limit public figures to those exercising official functions and instead held that the relevant criterion is the extent to which the person is “well known to the public”.27 In applying this to Von Hannover and her husband the Court determined “that irrespective of the question whether and to what extent the first applicant assumes official functions on behalf of the Principality of Monaco, it cannot be claimed that the applicants, who are undeniably very well known, are ordinary private individuals. They must, on the contrary, be regarded as public figures”.28 In the simultaneously determined Axel Springer the Grand Chamber found that a television actor was also a public figure.29
Since then the Court has held that others who are “well known to the public” (what it sometimes refers to as the “notoriety” criterion) are public figures. Thus in addition to those exercising official functions (such as heads of state,30 politicians31 and a high-ranking local civil servant)32; the Court has determined that a filmmaker,33 musicians and actors34 are all public figures.
A further expansion of the doctrine came in the form of recognising those who have a “position in society” such as businessmen as public figures. The Court employed this approach in Verlagsgruppe News GmbH v Austria (no. 2) when it determined that “[e]ven if [a businessman] has not sought to appear on the public scene … a business magnate, who owns and manages one of the country's most prestigious enterprises, is by his very position in society a public figure”.35 This has also taken root in the domestic courts, where it was held that “whatever limits there may be to the legal concept of a public figure the Chief Executive of one of the largest publicly quoted companies in the United Kingdom is clearly a public figure”.36 The idea that those who have a “position in society” are public figures was given a more explicit moral slant in McLaren v News Group Newspapers Ltd. where a former football manager was held to be a public figure on the basis that public figures include those “from whom the public could reasonably expect a higher standard of conduct”.37
The doctrine has also been extended to persons who, although not public figures, have “consciously and intentionally submitted to the public scene”. There is little insight into what constitutes the “public scene” or how one submits to it, but this approach has begun to populate the Court's reputation cases (the Court has indicated that it also applies in privacy cases),38 to include individuals suspected of involvement in crime,39 or journalists and lawyers acting in high profile cases.40 The Strasbourg Court has reasoned that whilst it “vigorously defend[s] the privacy rights of individuals who have not consciously and intentionally submitted themselves to public scrutiny … [t]he same degree of protection is not afforded to public figures”.41 Consequently although children involved in high profile custody battles, have not chosen to step into the public sphere,42 those who have affairs with married politicians and engage in public disturbances have chosen to enter the public scene.43 The application of the doctrine here thus distinguishes a category of rights-holders based upon normative assumptions about the attribution of conduct and the relevance of such conduct to public life. This begs the question as to whether the concept is necessary given that these factors are already accounted for elsewhere.44
A further grey area concerns those associated with a public figure. Although the courts have held that spouses and children of public figures are not necessarily public figures themselves,45 in Trimingham 46 and Goodwin 47 it was suggested that those who have affairs with powerful businessmen or politicians may no longer be purely private persons. Whilst in Murray and AAA the courts examined “the position of the child's parents and the way in which the child's life as part of that family has been conducted” to determine the scope of the child's right to privacy.48
The introduction of different subcategories of public figures obviously means that a broader group of persons may be affected, but the operation of these categories remain uncertain; decisions are fact specific and the Court usually states its finding without indicating how and why it reached its conclusion. We are therefore left with a broad conception of a public figure with a number of areas of uncertainty. Indeed whilst it may be relatively easy to identify elected officials and celebrities as public figures, we do not know what sort of official functions are relevant,49 how well known someone needs to be, which societal positions are relevant, whether public figure status is permanent,50 nor when the courts will determine that someone has elected to enter to public scene. There is thus a broader category of persons, such as prominent academics,51 where it may be difficult to state with certainty whether or not they are public figures for these purposes.
In many ways a broad malleable approach reflects societal understandings of public figures, and definitional difficulties are not surprising.52 Indeed part of the difficulty is that the societal concept of a public figure has evolved. Historically, public figures in the sixteenth century were men with notable positions of power, including important and revered public roles such as the scholar and the cleric. Portraits were an important form of immortalising the man in the context of his profession; for example, a banker would be depicted with coins, a scholar with a quill and public figure status was very much connected to societal functions; these men were revered for what they did for society, and it was this that led to great interest in them. That vision of public figures is similar to the Court's focus upon “official functions” and those who occupy a “position in society”. In later centuries, however, the rise of mass-circulation newspapers expanded interest beyond those with public roles to include the glamorous and the famous. People became revered not just for what they did for society, but for how they looked and the lifestyle they led. This was satiated by details, and in particular towards the end of the nineteenth century by the inclusion of photographs.53 Thus the classical notion of a public figure as someone exercising a particular public role expanded to those who were famous, or in the Court's terminology those who were “well known to the public”. Today the societal concept of “public figure” is extremely difficult to pin down. Although in the past one's office or profession may have borne some correlation to the extent to which one was known to the public, these features have diverged radically such that those who are famous includes some who hold public office, but many more who do not. Both traditional and social media are full of news stories and images of people who are seemingly famous for being famous. The extent to which fame is transitory raises further difficulties for identifying who is and who is not a public figure.
Yet the broader the legal concept of a public figure the more it becomes embroiled with subjective moralistic determinations, which prejudge the extent to which information is private and the extent to which there is a public interest in disclosure.54 The Court's rhetoric of “consciously and intentionally”, “submitted” and “public scene” are premised upon unspoken normative assumptions about the attribution of conduct and the relevance of such conduct to public life which involves conflating a constructed binary distinction between public and private persons with other binary distinctions between public and private life (or domain), and between voluntary and involuntary acts. Distinctions that are contestable and problematic to apply, and at their core rest upon unspoken normative determinations as to the nature of the right and what is or is not in the public interest, matters that are better confronted directly rather than hiding behind these binary labels. The legitimacy of this in a framework based upon human rights is thus contingent upon the manner in which it operates and the rationale for the doctrine, matters, which are themselves unclear.
B. What Is the Relevance of Public Figure Status?
Clearly, the doctrine does not deprive public figures of all privacy rights as the courts have upheld the rights of members of royal families, heads of state and celebrities such as supermodels and footballers.55 The case law instead suggests a sliding scale: those that exercise official functions receive the lowest level of protection; whilst other public figures receive less protection than private individuals, but more than those with official functions. This is evident in the Court's determination that “the right of public figures to keep their private life secret is, in principle, wider where they do not hold any official functions (even if, as members of a ruling family, they represent that family at certain events) and is more restricted where they do hold such a function”.56 These nuances are, however, somewhat lost in the broader uncertainty as to how public figure status affects rights.
Conceptually public figure status may come into play in a human rights framework at two stages. The first is in the determination of the scope of the right. The second is in the determination of the weight accorded to the two competing rights. Whilst the domestic courts have used both approaches, the Strasbourg case law suggests that public figure status only comes into play at the latter stage.
1. The Scope of the Right to Privacy
Although in Craxi v Italy (No.2) the Court stated that “public figures are entitled to the enjoyment of the guarantees set out in Article 8 of the Convention on the same basis as every other person”57 this is undermined by other elements of the Court's general principles. In particular the Court regularly asserts (1) that it is only in certain circumstances that a public figure can “rely on a ‘legitimate expectation’ of protection of and respect for his or her private life”58 and (2) that the “status as an ordinary person enlarges the zone of interaction which may fall within the scope of private life”.59 These statements invoke an image of rights of varying breadth and thus the possibility that public figure status bites to determine the parameters of those rights. In practice, however, the European Court of Human Rights does not assess whether or not a public figure had a legitimate or reasonable expectation in determining whether Article 8(1) ECHR applies. On the contrary, there is rarely any analysis of whether Article 8(1) ECHR applies. See for example, Von Hannover (No.2) where the Grand Chamber provided five paragraphs of general principles relating to the right to private life, but at no point questioned, considered or explained why Article 8(1) ECHR applied; and, when it came to examining the particulars of the case it went straight to the balancing criteria.60 This is representative of the Court's approach. Indeed there is no evidence that the Court uses public figure status as part of a threshold reasonable expectation of privacy test and there are no cases in which the Court has determined that a public figure is unable to rely upon Article 8(1) ECHR.
This is different from the position taken in domestic law where the right is contingent upon the applicant demonstrating that he or she had a reasonable expectation of privacy.61 Indeed there are cases in which the domestic courts have considered public figure status even where the information itself would typically be classified as of a type that is obviously private, such as medical information. An example of this is Spelman where it was held that a boy who had played rugby for England in the under 16 team faced a “diminution of the reasonable expectation of privacy”62 and that there was “no, or at best a low, expectation of privacy if an issue of health relates to the ability of the person to participate in the very public activity of national and international sport”.63 The Court also held in Goodwin that Goodwin's role as Chief Executive of RBS “presents an obstacle” to the claimants establishing they have an expectation of privacy.64 In other cases the domestic courts have been less inclined to regard public figure status as part of the threshold test. For example in Ferdinand even though the Court relied heavily upon public figure status, it accepted that he had a reasonable expectation of privacy, finding that these matters were instead relevant to the balance struck between privacy and freedom of expression.65 The judicial position remains, however, ambiguous, as seen in Richard v BBC where the Court held that “a public figure is not by virtue of that quality, necessarily deprived of his or her legitimate expectations of privacy”; thus leaving open the possibility that public figure status may curtail expectations of privacy.66
The legitimacy of incorporating public figure status into a threshold reasonable expectation of privacy test depends upon the underlying normative rationale for the doctrine. At this first stage the courts are purportedly determining the scope of the privacy right in isolation from any consideration of competing rights. On this premise the courts should only use a public figure doctrine if the normative justification is that the information is “not private”. If the reason for invoking public figure status is based upon the public interest in publication then it should not form part of a threshold test, but should instead be part of the second stage process of evaluating competing rights. Whether we follow the approach of the domestic courts or the Strasbourg Court or reject both, is thus contingent upon the normative rationale for the doctrine.
2. The Weight Accorded to the Rights to Privacy and Freedom of Expression
Public figure status may also be relevant to the weight accorded to the rights. The general stance is that articles 8 and 10 ECHR are of presumptive equal value and that the two rights should be balanced using the Von Hannover (No.2) criteria.67 Those criteria are: (1) whether the publication constitutes a contribution to a debate of general interest; (2) how well known is the person concerned and what is the subject of the report (the “notoriety” criterion); (3) prior conduct of the person concerned; (4) content, form and consequences of the publication; and (5) circumstances in which the photographs were taken.68 If we examine those criteria it is evident that public figure status comes into play not only in the notoriety criterion which examines “how well known is the person concerned”, but also when determining whether (1) the publication constitutes a contribution to a debate of general interest and (2) the prior conduct of the person concerned. The balancing criteria thus allow public figure status to curtail and/or weaken the weight accorded to Article 8 ECHR, whilst simultaneously enhancing the weight accorded to Article 10 ECHR on multiple criteria.
Couderc and Hachette Filipacchi Associés v France is an example of this.69 The proceedings related to newspaper coverage of Prince Albert of Monaco's secret son. The Grand Chamber first considered the Prince's public figure status when considering whether the publication contributed to a debate of general interest.70 As it would have been impossible for the Grand Chamber to assess whether the publication contributed to a debate of general interest without considering the Prince's role, status and conduct it was entirely appropriate for it to consider this as part of its evaluation of the significance of Article 10 ECHR. Yet the Grand Chamber traversed the same ground when contemplating the Prince's “notoriety”; analysis that it subheaded – the “consequences of the classification as a ‘public figure’”.71 At this juncture it asserted that “the role or function of the person concerned … constitute another important criterion to be taken into consideration” and that “[t]he extent to which an individual has a public profile or is well-known influences the protection that may be afforded to his or her private life” as the “public [i]s entitled to be informed about certain aspects of the private life of public figures”.72 This led it to direct that “a fundamental distinction needs to be made between reporting details of the private life of an individual and reporting facts capable of contributing to a debate in a democratic society, relating to politicians in the exercise of their official functions”.73 A similar approach can be seen in Axel Springer v Germany where the Court determined that the fact that a public figure was well known “reinforces the public's interest in being informed”.74 Yet if the notoriety criterion is intended to give weight to Article 10 ECHR it reproduces analysis that has already been carried out when considering whether the publication contributes to a debate of general interest, whilst if it is intended to restrict the weight accorded to Article 8 ECHR then we need to know what the normative argument is for limiting the right to privacy.
Of course courts often look at a range of factors in deciding whether a restriction is justified such that similar considerations may arise when considering both rights. For example, a court could perhaps conclude that there is little public interest to justify the inclusion of a particularly intrusive fact in an article thus weakening the Article 10 ECHR claim, and also find that the inclusion of that fact resulted in a greater infringement of Article 8 ECHR on the basis that the gratuitous inclusion of private information made the intrusion particularly egregious. Yet this is only justifiable where a particular factor tells us something about the weight that should be accorded to a given right. If the press probe into someone's private life for salacious gossip then this might be regarded as a greater interference with the dignity that underpins the right to privacy, whilst at the same time there may be limited weight to accord to the values that underpin freedom of expression such as democracy. The problem with employing public figure status to do this work vis-à-vis both rights is that whilst public figure status may be closely connected on a particular set of facts to the question of whether a particular disclosure is in the public interest, it is questionable whether it assists in determining the extent to which an interference with privacy is intrusive. If the rationale is that less weight is to be accorded to Article 8 ECHR because public figure status means that the information is “newsworthy” then it is not a matter for Article 8 ECHR at all, but is instead a matter for Article 10 ECHR, one that is already covered by “debate of general interest”. If instead the reasoning is that the applicant's prior conduct means that the interference is less intrusive, then it is covered by the criterion that tackles that element directly. It is not, however, clear that there is any rationale for determining that public figure status in the form of “notoriety” means that a person's right to privacy should be accorded less weight than that of an ordinary private individual. We will return to this when we consider potential normative rationales for the distinction, but at this stage it is sufficient to state that without a clear indication of how the notoriety criterion assists in assessing the Article 8 ECHR right or what it adds to the analysis of Article 10 ECHR that is carried out under the “debate of general interest” criterion it should be rejected.
There are also signs that public figure status may crystallise into distinct standards of protection that tilt the scales in favour of freedom of expression. In Couderc, the Court declared that:
although the publication of news about the private life of public figures is generally for the purposes of entertainment rather than education, it contributes to the variety of information available to the public and undoubtedly benefits from the protection of Article 10 of the Convention. However, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination.75
This suggests that the the rules are redrawn for public figures such that Article 10 ECHR only has to “cede” when the information is private and there is no public interest in dissemination; a significant shift in favour of Article 10 ECHR. It is important to note, however, that this was taken directly from Mosley v United Kingdom, where it was held that there was no public interest in the publication of photographs and details of Max Mosley's sex life.76 Thus the scope of the distinction is contingent upon what the Court is willing to recognise as a “public interest”. Yet even if the Court is willing to refuse to recognise the publication of salacious gossip as in the public interest, this still renders the balancing process in public figure cases entirely contingent upon the Court's interpretation of public interest, without any scope for evaluating this against the intrusion into privacy. This has implications for the purported hierarchical nature of the rights and the process of resolving conflicts of rights; as such it too requires a strong normative justification.
We have thus seen how the public figure doctrine may affect rights by: (1) curtailing the scope of the right to privacy, (2) affecting the weight accorded to the rights or (3) recalibrating the balance struck between the rights via a rule that freedom of expression will only cede to privacy where there is no public interest in publication. We will now turn to consider the conceptual problems that this raises.