The protection of privacy in Germany: has anything changed since the Von Hannover v Germany decision?

摘要

In Germany, the Basic Law grants human rights which are similar to the Convention rights. However, the Convention rights are not synonymous with the basic rights. The question must be answered whether the Convention or the basic rights rank higher in the hierarchy of laws, whether they are compatible, whether they are superfluous, or whether they grant a parallel protection. In the UK, the European Convention of Human Rights is of importance since s 2(1)(a) of the Human Rights Act 1998 requires a court, when determining a question which has arisen in connection with a Convention right, to take into account any judgment, decision, declaration or advisory opinion of the ECtHR. In the second 'partner of Herbert Gronemeyer' judgment, the Berlin Regional Court of Appeal came to a similar result. The analysis of the last two judgments leads to the question whether Von Hannover was the only reason for the court to decide differently. The space given to the discussion about the relevance of Von Hannover in the second 'partner of Herbert Gronemeyer' judgment is remarkable. However, its full extent, the German court did not apply Von Hannover. The ECtHR's criticism of the Constitutional Court and its concepts of 'figure of contemporary history par excellence' and 'secluded place' and the scope of protection of the freedom of the press was very clear. The three cases discussed in this article show a certain lack of enthusiasm to implement the critique voiced in Von Hannover. The reason for this is the unsolved question of how to properly implement the ECtHR's decision into German law if there is a contradictory decision of the Constitutional Court.