THIRD SECTION

DECISION

Application no. 35244/15 Rainer SPEER against Germany

The European Court of Human Rights (Third Section), sitting on 12 October 2021 as a Committee composed of:

Georgios A. Serghides, President, Anja Seibert-Fohr, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 14 July 2015,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Rainer Speer, is a German national, who was born in 1959 and lives in Potsdam. He was represented before the Court by Mr J. Eisenberg, a lawyer practising in Berlin.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant was a politician in the Land of Brandenburg. From 2004 to 2009 he was Minister of Finance and, from 2009 until his resignation on 23 September 2010, Minister of the Interior of Brandenburg. He has been married since 1992.

4. In 1997 the applicant had an affair with Ms G. and their child E. was born the following year. Before the competent social authorities, G. stated that she did not know who the father was and, as a result, received alimony payments ( Unterhaltsvorschuss ) from the state.

5. On 30 October 2009 the applicant’s laptop was stolen. The laptop contained extensive private data, including email correspondence between the applicant and G. The stolen data was acquired from a Berlin businessman by journalists working for the newspaper Bild , a tabloid owned by Axel Springer AG (since 2016: Axel Springer SE).

6. During an interview on 30 August 2010 the journalists confronted the applicant with their findings. Furthermore, on 9 September 2010 the journalists submitted emails obtained from the laptop to the applicant with a request for comment.

7. On 20 September 2010 an article was published on Bild’s website with the headline: “Brandenburg’s Minister of the Interior under Pressure. Social Fraud? Speer contests the allegations.” On 22 September 2010 several other news outlets carried the story.

8. On 23 September 2010 the B.Z. , another tabloid owned by Axel Springer AG, published an article with the headline: “ Just wanted to remind you of your debt, Mr Minister of Finance; 2100 EUR.” , a quote from an email G. had written to the applicant. The article quoted several more emails between G. and the applicant.

9. On the afternoon of 23 September 2010 the applicant resigned from his post as Minister of the Interior.

10. On 9 September 2010, reacting to the journalists’ request for comment (see paragraph 6 above), the applicant filed a lawsuit before the Berlin Regional Court against Axel Springer AG. He demanded that it cease any further publication regarding the applicant’s fatherhood, his relationship with G. and the question whether G.’s actions had constituted social fraud.

11. Following his resignation, the applicant amended the lawsuit. He now primarily demanded that Axel Springer AG and her subsidiary company publishing the B.Z. cease publication of the email correspondence. His demand concerned, inter alia , the following emails:

“I’m not available for the role of father”, dated 28 October 1997, sent by the applicant.

“I am horrified what’s going to happen next year, that thing with the alimony fraud is going to be over (not the criminal relevance for me). On the one hand I’m glad, on the other hand I won’t have anything left to make excuses to E. in good conscience. In any case, this constant begging is an untenable situation (the 100 EUR, starting in Oct. next year 150 EUR are peanuts for you, I do really need this money by now, symbolically and also materially.”, dated 29 November 2002, sent by G.

“You have forgotten the anniversary again...You owe us 1150 Euro... It’s a small fraction of what she would be entitled to, please don’t deny her that and don’t make me have to beg, please”, dated 22 October 2003, sent by G.

“I haven’t seen a penny from you in all of 2003, you know that I haven’t been getting any state benefits for her for quite some time.”, dated 25 November 2003, sent by G. On 2 December 2003 the applicant replied: “I’ll come over with a couple of Euros!”

“Hello Rainer, please tell me when I’ll get the agreed alimony for E. As of April you owe me 1850 EUR, you Minister of Finance.”, dated 21 April 2004, sent by G.”

12. Regarding the original demand to cease all publications concerning his affair with G., the applicant did not further pursue his claim, essentially conceding that the public had a right to be informed about the reasons for his resignation from office.

13. On 28 June 2011 the Berlin Regional Court granted the applicant’s request in part and notably ordered Axel Springer AG to cease the publication of the emails. On 5 November 2011 the Berlin Court of Appeal largely confirmed the Regional Court’s judgment, relying notably on the fact that the emails had been obtained from the applicant by criminal means.

14. On 30 September 2014 the Federal Court of Justice reversed the lower courts’ decisions and lifted the interdiction to publish the emails. It found that, given the applicant’s position as Minister of the Interior of a Land, his relationship to G. and the question whether G.’s actions had constituted social fraud were of exceedingly high interest to the public. Regarding the origin of the information, the court pointed out that a distinction had to be made if the journalists themselves had obtained the information by criminal means or, as in the present case, had only benefited from the actions of a third party. The use of the email correspondence between the applicant and G. in verbatim served to corroborate the allegations and was, thus, of significant importance for the public opinion.

15. On 15 January 2015 a panel of three judges of the Federal Constitutional Court refused to examine the applicant’s complaint without providing reasons (1 BvR 3209/14).

16. A full description of the relevant domestic law at the material time can be found in Axel Springer v. Germany [GC] (no. 39954/08, § 47, 7 February 2012).

COMPLAINT

17. The applicant complained under Article 8 of the Convention about the insufficient protection of his reputation by the domestic courts.

THE LAW

18. The applicant complained that the domestic courts’ refusal to prohibit the publication of his email correspondence was in breach of Article 8 of the Convention, the relevant parts of which provide:

“1 Everyone has the right to respect for his private (...) life (...).

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society (...) for the protection of the rights and freedoms of others.”

19. The applicant argued that the Federal Court of Justice had not sufficiently taken into account his right to privacy, notably regarding a publication of the emails in verbatim and the fact that the emails had been obtained through a criminal act.

20. The Court notes that in cases of the type being examined here, what is in issue is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicants’ private life. The applicable principles are, nonetheless, similar and regard must be given to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany No. 2 [GC], nos. 40660/08 and 60641/08, §§ 98-99, 7 February 2012, with further references).

21. Therefore, the Court considers that the present case requires an examination of the question of whether a fair balance has been struck between the applicant’s right to the protection of his private life under Article 8 of the Convention and the newspapers’ right to freedom of expression as guaranteed by Article 10. Having considered on numerous previous occasions similar disputes requiring an examination of the issue of a fair balance, the Court refers to the general principles relating to each of the rights in question that have been established in its case-law. Where the balancing exercise 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 Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83-92, 10 November 2015; and Von Hannover (no.2) , cited above, §§ 95-107, with further references).

22. The Court has identified the following relevant criteria in the context of balancing Article 8 and Article 10: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned and the content, form and consequences of the publication (see Couderc and Hachette Filipacchi Associés , cited above, § 93, and Von Hannover v. Germany (no. 2) , cited above, §§ 109-113).

23. The Court notes that the Federal Court of Justice accorded an “exceedingly high interest” to the information in question. As a high ‑ ranking politician the applicant had shirked his financial obligations towards G. and placed her in a position where she had to demand state benefits for her child, a course of action which she herself considered fraudulent.

24. Regarding the degree of notoriety of the applicant, the domestic courts considered that as Minister of the Interior of a Land, the applicant was a public figure and his actions were subject to a heightened scrutiny. The fact that the applicant had already resigned from his position at the time of the national courts’ decisions is of only limited significance in the present case since the publication was related to his conduct during his term of office which subsequently led to his resignation from the position as a Minister.

25. As regards the subject of the news report, the Federal Court of Justice found that the fact of the relationship between the applicant and G. out of which a child had been born was not of an intimate nature to preclude publication. While the information in question certainly stemmed from the applicant’s private life, the Court reiterates that information about the private life of a politician can contribute to a debate of general interest (see Ruusunen v. Finland , no. 73579/10, § 49, 14 January 2014).

26. Overall, the Court therefore sees no reason to disagree with the national courts’ findings regarding the fact that the publication contributed to a debate of general interest, the applicant’s notoriety and the subject of the news.

27. The Court notes that neither the parties nor the domestic courts commented on the applicant’s conduct vis-à-vis the media prior to the publication. Accordingly, it is not in a position to examine this aspect of the case (see Couderc and Hachette Filipacchi Associés , cited above, § 130).

28. With respect to the veracity of the information, the Court observes that it was not challenged by the applicant. In determining whether a publication interferes with an applicant’s right to respect for his or her private life, the Court also takes account of the manner in which the information was obtained (see Couderc and Hachette Filipacchi Associés , cited above, § 86). The Court reiterates that the mere fact that the material in question was obtained by a third person, contrary to law, cannot deprive the publisher of the protection of Article 10 of the Convention (see Radio Twist A.S. v. Slovakia , no. 62202/00, § 62, 19 December 2006, contrast Alpha Doryforiki Tileorasi Anonymi Etairai v. Greece , no. 72562/10, § 69, 22 February 2018).

29. The Court takes notice that the Federal Court of Justice considered this aspect and noted that the publication of information obtained by illegal means was not excluded in principle. It emphasised that the journalists, while aware that the information had been obtained by unlawful means, had not been implicated in the theft of the laptop.

30. Moreover, it has been undisputed that publishing the emails was not in breach of any criminal law. Therefore, the Court holds that the present case is distinguishable from Société Editrice de Mediapart and Others v. France (nos. 281/15 and 34445/15, 14 January 2021) in which the interdiction of the publication of secretly recorded conversations was confirmed by the Court and where it had relied, notably, on the fact that publication of the recordings constituted a criminal offence under French law and, in addition, that the victim was particularly vulnerable due to her advanced age. The Court therefore sees no reason to call into question the domestic courts’ conclusions on this point.

31. As regards the content and form of the publication, the Court reiterates that the presentation of a press article and the style used in it are a matter of editorial decision, on which it is not in principle for it, or for the domestic courts, to pass judgment (see Couderc and Hachette Filipacchi Associés , cited above, § 144). While journalistic freedom is not unlimited and the press must not overstep certain bounds in this connection, even the broadcasting of secretly recorded telephone conversations or material from a hidden camera may be protected under Article 10 if a matter of general interest is concerned (see Radio Twist A.S. , cited above, §§ 56-65, and Alpha Doryforiki Tileorasi Anonymi Etairai , cited above, § 78).

32. The Court notes that the domestic courts took into account that the publication of the emails in verbatim interfered with the applicant’s right to private life. This interference was considered even more profound regarding the emails written by the applicant himself since they reflected his personal language. Nevertheless, the Federal Court of Justice considered that the publication of the emails was justified since they served to corroborate the alleged misconduct and were thus of a high persuasiveness. Overall, the domestic courts’ considerations in weighing the public interest against the applicant’s right to privacy appear reasonable.

33. As regards the consequences of the publication, the applicant was forced to step down from his post after parts of the emails had been published. However, since this aspect was not relied on by the parties, the Court accepts that the national courts did not further address this issue in the context of the present civil proceedings.

34. Having regard to the margin of appreciation enjoyed by the national courts, the Court concludes that there are no strong reasons to substitute its view for that of the domestic courts, and that, in allowing the publication of the emails, the latter did not fail to comply with their obligation to protect the applicants’ right to respect for private life.

35. It follows that the complaint under Article 8 is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 November 2021.

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Olga Chernishova Georgios A. Serghides Deputy Registrar President