AMSTERDAM, Netherlands -- While on vacation this week, I was relaxing over the English-language bulletin The Hague Amsterdam Times when a curious item caught my eye. It seems that last week Prince Willem-Alexander and Princess Maxima of the Netherlands filed a lawsuit against a gossip magazine for publishing photographs of the princess relaxing on the beach with her two elder daughters and their nanny.
The prince and princess argue that publishing photographs of famous people in public places, but doing private things, violates European Union privacy law. The royal family just might win, and the case provides a fascinating contrast to the way courts balance privacy and free press in the United States, where the outcome of such a lawsuit would likely favor the tabloid.
The lawsuit rests on a decision by the European Union Court of Human Rights, in a case brought by Princess Carolyn von Hannover of Monaco against Germany and decided in 2004. In that case, Princess Carolyn sued to enjoin the publication of photos of her going about her daily business. Germany had ruled against her, holding that under that country's law, the rights of a free press, including publications intended to entertain, outweighed the rights of celebrities like the princess to control photos of themselves in public, non-secluded places.
The EU court reversed the ruling, essentially telling Germany that as part of the federation, its law had to change. Under Article 8 of the European Convention on Human Rights, privacy was defined as "the right to live one's own life with a minimum of interference." That meant that even a celebrity par excellence had a legitimate expectation of privacy in his or her private life, including conduct in a public place.
Princess Carolyn therefore could suppress the publication of photos of her tripping over an obstacle at a beach club, shopping or kissing her male companion, as the publication was not part of a public debate, but only to satisfy public curiosity about private matters.
The court also opined that modern communications technologies justified a broader protection for private life, since publishers had an increased capacity to store and reproduce personal data and to disseminate photos to a broad section of the public.
Since the pictures of Princess Maxima and her daughters show the family playing on the beach, there's a strong parallel to the von Hannover decision. Under European law, the royal family's privacy rights could well outweigh the press' right to cater to (though never satiate) public curiosity.
In the United States, however, there is no federal right that protects regular people from being photographed by either the government or private entities. The Fourth Amendment protects against unreasonable searches and seizures by the government, but this rule does not prohibit law enforcement taking photos of you in public places, or the publication of any photos by a private entity.
In the few states where individuals do have a statutory right to control publication of photographs, it is essentially a property interest in the economic value of your likeness rather than a right to keep personal information private. This means that the right can be sold, and the buyer can enforce the interest as its own economic right.
In a dispute involving two competing baseball card companies, both of which purchased the "exclusive right" to certain players' likenesses, the first buyer was able to stop the second company from using the photos, despite the players' consent.
The right can also be passed on to and enforced by heirs, and is heavily dependent on a finding of commercial exploitation. As a result, regular people who don't have a commercial interest in their image are less protected than celebrities who do, even though the public arguably has more of a legitimate interest in what famous people are up to.
In any event, these state rights are limited by the First Amendment. Political messages, scholarship and works of art are protected. Thus, unauthorized biographies can use a celebrity's likeness to sell books. But confusion sets in when courts try to distinguish between art, commentary and exploitation.
Consider the movie Forrest Gump, which uses the likenesses of famous people; or a T-shirt depicting the Three Stooges; or a bobble-head doll of California Gov. Arnold Schwarzenegger. Is any, all or only some of this art and social commentary protected by the First Amendment? Legal scholars agree that Gump is protected. But in past cases, the T-shirt manufacturer lost and Schwarzenegger settled his lawsuit against the toy manufacturer.
Despite the legal confusion, the tabloid would have a better defense against the prince and princess' lawsuit here in the United States than it does in the European Union. Courts generally protect free speech rights in films, their associated advertising, parody, critique and even entertainment-news reporting.
I support a ruling in favor of the paper. History shows that when it comes to deciding what qualifies as a matter of public interest and what's merely improper economic exploitation it's hard for the courts to draw a clear line. And it becomes dangerous for publishers to guess at the boundaries of a fuzzy one.
Still, there's something valuable for U.S. privacy law in the EU approach. Here in Europe, privacy is not an all-or-nothing right that stops at the front door, or that protects only commercial value. Rather, privacy implicates individual autonomy, private social interactions and personal freedom.
Weighing these human interests against the rights of the press to publish and the public to know will be increasingly difficult. The court considering Princess Maxima's suit has its work cut out for it. But at least the EU has a better formulation of what is at stake for individuals.
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