Copyright, Privacy and Publishing Photographs of Criminal Defendants

Abstract

In Het Parool v. the Netherlands, the European Court was called upon to consider a claim under a provision in copyright law that limited a newspaper’s freedom to publish an accused person’s photograph. The Court held, in effect, that a person charged with a violent homicide may seek damages from a newspaper for publishing his photograph, even where the article is “true and correct,” concerns a matter of “serious public concern,” where the photograph “does not contain details” of his private life, and was not obtained using “subterfuge or other illicit means”. Given the significance of the decision for the potential liability of newspapers when reporting on criminal proceedings, this article considers (a) the Court's application of the "fair balance" test under Axel Springer, (b) the Court's standard of review, and (c) the Court's consideration of prior case law on the question.

Keywords: Privacy, copyright, media freedom, criminal proceedings