CONCURRING OPINION OF JUDGE CABRAL BARRETO

(Translation)

I am of the opinion that there has been a violation of Article 8 of the Convention, but am unable to follow the entire reasoning of the majority.

1. My colleagues state in their conclusions that “the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest” and that “the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and she is well known to the public”.

In the majority ’ s view the publication of the photos and articles in question was not such as to contribute to a debate of general interest because the applicant was not performing official functions and the published photos and accompanying commentaries related exclusively to details of her private life.

In my view, however, the applicant is a public figure and the public does have a right to be informed about her life.

The solution therefore needs to be found in the fair balance that has to be struck between the applicant ’ s right to her private life and the public ’ s right to be informed.

2. The applicant is a public figure, even if she does not perform any function within or on behalf of the State of Monaco or any of its institutions.

“ Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain ” – paragraph 7 of Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy (see paragraph 42 of the judgment).

It is well known that the applicant has for years played a role in European public life, even if she does not perform any official functions in her own country.

To measure the degree of public interest in her, it is sufficient to look at the amount of media coverage devoted to her public or private life.

Very recently the press drew attention to the fact that, on her arrival at the ceremony of the marriage of Crown Prince Felipe of Spain, the applicant was one of the people from Europe ’ s and the world ’ s high society to be the most widely greeted by the public.

The applicant is, in my view, a public figure and information about her life contributes to a debate of general interest.

The general interest does not have to be limited to political debate. As pointed out by the Parliamentary Assembly , “certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens ... ”.

If that is true of politicians it is also true of all other public figures in whom the public takes an interest.

It is therefore necessary to strike a balance between two fundamental rights: the right of public figures to respect for their private life and everyone ’ s right to freedom of expression, which embraces the right of the public to be informed.

I agree with the majority that the private life of a public figure does not stop at their front door.

However, it has to be acknowledged that, in view of their fame, a public figure ’ s life outside their home, and particularly in public places, is inevitably subject to certain constraints.

Fame and public interest inevitably give rise to a difference in treatment of the private life of an ordinary person and that of a public figure.

As the Federal Constitutional Court pointed out, “the public has a legitimate interest in being allowed to judge whether the personal behaviour of the individuals in question, who are often regarded as idols or role models, convincingly tallies with their behaviour on their official engagements”.

Admittedly, determining the limit of a public figure ’ s private life is no easy task.

Furthermore, a strict criterion might lead to solutions that do not correspond to the “nature of things”.

It is clear that if the person is in an isolated spot everything that happens there must be covered by the protection of private life.

It appears to me, however, that the criterion of spatial isolation used by the German courts is very restrictive.

In my view, whenever a public figure has a “legitimate expectation” of being safe from the media , his or her right to private life prevails over the right to freedom of expression or the right to be informed.

It will never be easy to define in concrete terms the situations that correspond to this “legitimate expectation” and a case-by-case approach is therefore justified.

T his casuistic approach may also give rise to differ ences of opinion .

The majority attach importance, for example, to the fact that the photos at the Monte Carlo B each C lub had been taken secretly.

I do not dispute the need to take account of the fact that the photos were taken from a distance, particularly if the person was somewhere they could legitimately believe did not expose them to public view.

However, the B each C lub swimming pool was an open place frequented by the general public and, moreover, visible from the neighbouring buildings.

Is it possible in such a place to entertain a reasonable expectation of not being exposed to public view or to the media?

I do not think so.

I believe that this same criterion is valid for photos showing the applicant in other situations in her daily life in which she cannot expect her private life to be protected.

I have in mind the photos of her doing her shopping.

However, other photos – for example those of the applicant on horseback or playing tennis – were taken in places and circumstances that would call for the opposite approach.

It is thus in the knowledge of the limits to the exercise (I refer in this connection to Judge Zupančič ’ s opinion) that I have found a violation of Article 8 of the Convention.