CONCURRING OPINION OF JUDGE ZUPANČIČ

I adhere to the hesitations raised by my colleague, Judge Cabral Barreto. And while I find the distinctions between the different levels of permitted exposure, as defined by the German legal system, too Begriffsjurispruden z -like , I nevertheless believe that the balancing test between the public ’ s right to know on the one hand and the affected person ’ s right to privacy on the other hand must be adequately performed. He who willingly steps onto the public stage cannot claim to be a private person entitled to anonymity. Royalty, actors, academics, politicians , etc. perform whatever they perform publicly. They may not seek publicity, yet, by definition, their image is to some extent public property.

Here I intend to concentrate not so much on the public ’ s right to know – this applies first and foremost to the issue of the freedom of the press and the constitu tional doctrine concerning it – but rather on the simple fact that it is impossible to separate by an iron curtain private life from public performance. The absolute incognito existence is the privilege of Robinson; the rest of us all attract to a greater or smaller degree the interest of other people.

Privacy, on the other hand, is the right to be left alone. One has the right to be left alone precisely to the degree to which one ’ s private life does not intersect with other people ’ s private lives. In their own way, legal concepts such as libel, defamation, slander , etc. testify to this right and to the limits on other people ’ s meddling with it. The German private-law doctrine of Persönlich keitsr echt testifies to a broader concentric circle of protected privacy. Moreover, I believe that the courts have to some extent and under American influence made a fetish of the freedom of the press. The Persönlich keitsr echt doctrine imparts a higher level of civili s ed interpersonal deportment.

It is time that the pendulum swung back to a different kind of balance between what is private and secluded and what is public and unshielded.

The question here is how to ascertain and assess this balance. I agree with the outcome of this case. However, I would suggest a different determinative test: the one we have used in Halford v. the United Kingdom ( judgment of 25 June 1997 , Reports of Judgments and Decisions 1997-III ) , which speaks of “reasonable expectation of privacy ” .

The context of criminal procedure and the use of evidence obtained in violation of the reasonable expectation of privacy in Halford do not prevent us from employing the same test in cases such as the one before us. The dilemma as to whether the applicant here was or was not a public figure ceases to exist; the proposed criterion of reasonable expectation of privacy permits a nuanced approach to every new case. Perhaps this is what Judge Cabral Barreto has in mind when he refers to the emerging case-law concerning the balancing exercise between the public ’ s right to know and the private person ’ s right to shield him- or herself.

Of course, one must avoid a circu lar reasoning here. The “reasonableness” of the expectation of privacy could be reduced to the aforementioned balancing test. But reasonableness is also an allusion to informed common sense, which tells us that he who lives in a glass house may not have the right to throw stones.