1. INTRODUCTION

The contours of the right to privacy in Germany are very much determined by case law. The European Court of Human Rights (ECtHR) has significantly and visibly shaped that right. Its decision in one of a set of cases involving Caroline de Monaco/Caroline von Hannover famously led German Courts to change their course. This chapter will briefly recount these iconic developments from the beginning of the 21st century, and will sketch out how the courts interacted with one another back then. The events concerned traditional, physical media publications.

Nowadays, the media landscape is more complex, and the number of players has grown. The same is true for the number of courts involved. We have witnessed this over the past few years, as European Courts have dealt with the so-called ‘right to be forgotten’. Within a period of only a few years, the ECtHR, the Court of Justice of the European Union (CJEU), and the German Federal Constitutional Court (Bundesverfassungsgericht) all dealt with cases concerning the said right. The way in which the courts interacted with one another will be at the centre of this chapter. I will show how the three courts shaped the right, and demonstrate that the courts’ interactions differed from the classical one, which was on display in the von Hannover cases.

2. THE BASELINE: THE VON HANNOVER CASES

The highest German courts are proud and rather self-confident. Like many of their counterparts in other countries, they can, at times, be somewhat stubborn, and not too eager to change their course. However, when it came to the right to privacy, the ECtHR forced both the German Federal Constitutional Court and the Federal Court of Justice (Bundesgerichtshof) to do just that. It did so as part of a set of cases which established a dedicated line of sorts between Karlsruhe, where the Federal Constitutional Court and the Federal Court of Justice are located, and the ECtHR in Strasbourg.

In 1999, the Federal Constitutional Court upheld a decision by the Federal Court of Justice. It had declared image reporting in the tabloid press on Caroline von Hannover, then known as Caroline de Monaco, to be legal.