What may be written, may not be supported by pictures for a long time!
In a ruling of November 22, 2018 (Ref.: 15 U 96/18), the Cologne Higher Regional Court (OLG) made a clear distinction in this regard.
What was the reason for the verdict? Bild Online reported on a short vacation of national football player Julian Draxler, which he spent on a yacht “smooching” with a lady who was obviously not his partner.
As is typical for Bild, Mr. Draxler was creatively dubbed “Captain Smooch” in the article, and photos were published along with the article showing him kissing the unknown woman. Both he and his girlfriend of many years took the matter to court, and although the Regional Court upheld the claim in full at first instance, the Cologne Higher Regional Court took a more differentiated view of the facts.
The court ruled that the word coverage had been justified, but the picture coverage in this case had not.
When is image publication permissible?
The claim for injunctive relief against the photojournalism in this case arose from §§ 823 para. 2, 1004 para. 1 analog BGB in conjunction with. § Section 22 KUG, as the court gave priority to the protection of privacy over the public’s interest in information.
§ 823 BGB
(1) Any person who intentionally or negligently causes unlawful injury to the life, limb, health, liberty, property or other right of another shall be liable to compensate the other for the resulting damage.
(2) The same obligation shall apply to a person who violates a law intended to protect another person. If, according to the content of the law, it is possible to violate it even without fault, the obligation to pay compensation shall arise only in the case of fault.
§ Section 1004 of the German Civil Code (right to removal and injunctive relief)
(1) If the property is interfered with in a manner other than deprivation or withholding of possession, the owner may require the interferer to remove the interference. If further impairments are to be feared, the owner may sue for injunctive relief.
(2) The claim is excluded if the owner is obliged to tolerate.
§ 22 KUG
Images may only be distributed or publicly displayed with the consent of the person depicted. In case of doubt, consent shall be deemed to have been given if the person depicted received remuneration for having his or her likeness taken. After the death of the person depicted, the consent of the relatives of the person depicted is required for a period of 10 years. Relatives within the meaning of this Act are the surviving spouse or civil partner and the children of the person depicted and, if there is neither a spouse or civil partner nor children, the parents of the person depicted.
In this context, case law applies the graduated protection concept (Sections 22, 23 KUG). Accordingly, images of a person may only be disseminated with the person’s consent. If such consent is not given, it must be determined whether the image is part of contemporary history or whether another exception applies and the interests of the person depicted are not violated. The interests of both sides (the person depicted and the press and thus the public) must always be weighed up. According to case law, the specific point at which the boundary for the public’s justified interest in information in current reporting is to be drawn can only be decided by taking into account the respective circumstances of the individual case.
Contemporary history area
A picture is to be assigned to the area of contemporary history if it already generally concerns an event of the time, which is of general social interest. This does not necessarily have to be a political event. This also includes celebrities, as they can serve as a guiding figure for the general public or act as a contrast.
Weighing up the interest in information // protection of privacy
In order to then arrive at a fair weighing of the two legal positions, the public’s interest in information and the protection of the privacy of the person depicted, all the details of the respective case must be taken into consideration.
In this regard, the BGH stated that it must be examined whether the media in the specific case seriously want to present a matter of public interest to the public, thereby fulfilling the public’s demand for information and contributing to the formation of public opinion, or whether they merely satisfy the readers’ curiosity about the private affairs of prominent persons.
The greater the value of the information for the public, the more the interest in protecting the person about whom information is being provided must take a back seat to the informational needs of the public.
Conversely, however, the protection of the personality of the person concerned is all the more important the lower the information value for the general public (cf. BGH, judgment of May 29, 2018 — VI ZR 56/17).
Of course, you have to take into account what kind of person you are dealing with and to what extent they are in the public eye. Here too, the greater the role of the person in the public sphere, the more the protection of personality rights recedes. Politicians enjoy the least protection, followed by other public figures and private individuals, who enjoy the greatest protection. Further, it must be taken into account whether the person depicted felt protected in terms of his or her privacy, for example because he or she was in an intimate setting or in a room that was not accessible to the public. However, letting oneself go does not have to take place in a closed room, but can also be protected if it takes place outside, quasi “in the fresh air”.
Of course, how the photo was taken, by reenacting or secretly persistently following, also comes into play. These circumstances lead to an increased protection of the personal rights of the person concerned.
In the present case, the court had credited BILD Online with the fact that the person depicted was another public figure. As captain of the national team, the depicted soccer player thus had a certain responsibility towards the general public and, above all, towards his supporters, which meant that a public interest in him as a person was generally to be affirmed.
This interest was even heightened in the situation at hand, as he had just been named captain of the national team, as well as theoretically being in preparation for an international match. In this respect, the public interest lay in knowing how the new captain prepares for an important match and how this affects his leisure activities.
Furthermore, BILD benefited from the fact that Julian Draxler himself had quite marketed his private life and vacation arrangements in social media and in the press in the past.
Nevertheless, the images were ultimately attributable to his privacy. This was partly because he was on his vacation and partly because he was on a yacht far from shore. Therefore, he was allowed to assume that he was in a space protected from the public and therefore he was also “allowed to let himself go”.
That is why the court decided here that the soccer player’s privacy was more worthy of protection than the public’s interest in information.
Reporting evaluated differently
In terms of reporting, the matter was different here. A possible claim for injunctive relief could, for example, be based on §§ 823 para. 1, 1004 para. 1 analog BGB i.V.m. Art. 1 para. 1, Art. 2 para. 1 GG, which the court, however, denied in the present case.
BILD Online had merely presented the facts and questioned Julian Draxler’s behavior. However, no evaluation was made in this respect, but rather left to the reader. Even if in principle a couple relationship belongs to the inner area of the private sphere, BILD Online could justifiably encroach on the private sphere here through the reporting, which in essence was not about the relationship in the reporting, but about the contradiction of the plaintiff between his public self-portrayal with regard to his relationship status on the one hand and his actual behavior on the other hand by being together with an unknown woman in an intimate manner.
The public interest was also to be affirmed in this case, as the verbatim report concerned the player’s leisure activities shortly before an international match. This can certainly be considered to be of general social interest.
The public’s interest in information outweighed the protection of privacy in this case.
As far as our explanations of this interesting judgement of the OLG Cologne to personality right injury with iener picture reporting over a short vacation of a
National soccer player in female company.
If you have any questions about the context of word and image reporting or other media or press law matters, please feel free to call us at 0221–4201074.