Pic­tu­re report­ing !? Word report­ing !?

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.

Pri­va­cy domi­na­tes

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.

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