Photographs of a private wedding in Norway by long-lens paparazzi has recently been held not to be an invasion of privacy – but did they get it wrong?

The case of Lillo-Stenberg and Sæther v. Norway involved a famous musician and actress who got married in 2005 – the ceremony took place on a fjord near Oslo (the bride arrived on a rowing boat, the groom met her with a men’s choir, then they all had to scramble back to shore in bare feet after the ceremony). Those elements of the wedding, although not including the ceremony itself, were photographed from 250 metres away and published in a weekly magazine in Norway in a two-page spread – including one photo of the bride holding her dress above her knees to hop over the rocks without getting drenched. The magazine also published photos of their guests (including one couple with their baby), the bride and groom framed in a heart and one older photo taken with their young son at a festival a month before the wedding.

The article then went on to describe the ceremony – and their guests – saying that they could not hold back their tears and mentioned the name of the guest who hosted the ceremony. It also made it clear that their manager had told the magazine that they did not wish to comment on their wedding.

The couple brought court proceedings in Oslo for compensation relying on their right to respect for private life, and initially succeeded on the basis that the magazine were not invited to the wedding and the photos were taken without the couple’s knowledge. The magazine appealed – initially unsuccessfully – and then tried again in the Supreme Court in Norway. The Supreme Court agreed with the magazine by a majority of three votes to two.

The couple therefore appealed to the European Court of Human Rights who agreed with the decision in the Norwegian Supreme Court and, almost 10 years after their wedding, received a curious judgment which agreed with the magazine that the photos did not violate the couple’s privacy.

Again it was a majority decision which balanced the couple’s right to privacy against the magazine’s right of freedom of expression, and they held that the photos and text did not contain anything offensive, and the area was a public space. The magazine’s argument that they hadn’t included the actual ceremony seems to have carried some weight, too. But were the judges swayed by the “spectacular” nature of the wedding – the boat ride and the choir seem to have persuaded them that this warranted public attention, even if they agreed that the wedding offered no contribution to the debate of general interest and was purely entertainment and the photographs had been obtained surreptitiously.

We think the European Court should have struck the balance in favour of protecting the couple’s privacy – and therefore with the minority verdict here that the “desire to entertain … does not justify overriding the affected parties’ desire to protect their privacy”. Justice Tønder said that “getting married is a very significant occasion in a person’s life, and that therefore the activities celebrating it ‒ the marriage ceremony and the wedding party ‒ will for most people be one of the most important events of their lives, and will often be associated with strong emotions”.

It is generally accepted in England that celebrities should be able to protect their private lives just like anyone else – and certainly in our courts this case could (and should) have turned out very differently.