Court case 2-03 O 4/19 – Court Ruling (Germany, 2019)

Τhe wife of a well-known German presenter had filed an action for injunction against the publication of the plaintiff's picture in two magazines. The reason and content of the first reporting was that the plaintiff’s husband surprisingly did not extend his engagement in his talk show and the question of why (speculatively) was posed. As a possible reason the report mentioned that the husband now had more time for his family and their recently acquired an estate (vineyard). In the past, the wife had repeatedly appeared publicly and had advertised herself and her estate (vineyard) in particular by means of an illustrated homestory in a magazine, thereby partially opening up her private life to the public. The husband had repeatedly stated in various interviews that due to his job he could not spend enough time with his family and the newly acquired (wine) estate. The report was illustrated with a picture of the couple from a public event with a blurred background. The second attacked photo report in another magazine had the occasion and included the husband's behaviour in his talk show. The text was illustrated with a photo of the plaintiff (depicting her pouring a glass of wine at a public event), signed with the words "(The plaintiff) and her husband have been amateur vintners for years and spend a lot of time on their winery". The wife was not directly involved in the event of the report, nor did the picture and the signature referred to the subject. The Court was asked to balance the right of the depicted person deriving from Articles 1(2), 2(1) of the Basic German Law and 8(1) ECHR with the rights of the press deriving from Articles 5(1) Basic German Law and 10(1) ECHR. The Court held that the action should be dismissed. The court justified its decision with the so-called graduated protection concept (abgestuftes Schutzkonzept), which is positively reflected in the German provisions of §§ 22, 23 of the Copyright in Works of Art and Photography Act (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie, KUG). According to this concept, the dissemination of portraits of a person is in principle only possible with that person's consent. Exceptionally, however, no consent is required if the picture shown is a portrait from the field of contemporary history. The protection of privacy is thus downgraded to a lower level. However, the person shown is not without protection, as it still has to be checked whether the portrayed person has a legitimate interest against the publication of his or her pictures (§23 paragraph 2 KUG). The Court confirmed the existence of a contemporary historical event. The term is to be defined broadly, as it refers to political and social events, including those at regional level. However, the Court also recognised that the social interest in reporting derived from this must not encroach too deeply into the core area of privacy, namely the right to the plaintiff's own image. The Court found that the plaintiff was not inadmissibly restricted in her right to privacy by the photojournalism on her husband's withdrawal from the world of television. The court found that in previous cases the plaintiff had opened herself up to the public in her private sphere. Although this self-opening of the private sphere (Selbstöffnung der Privatsphäre) had only taken place well in relation to her estate (vineyard), the Court held that, according to the case-law of the ECtHR, the applicant had to be regarded as a "relatively prominent person", and therefore her right to her own image was weakened. The surprising decision of her husband to leave his TV show had triggered such a media echo that a "substantial public interest" in the (also private) reasons for this could justifiably be assumed. Although involuntary speculation should not justify any interference with the right to one's own image, this is not the case in the present case, the court stated. In addition, the court considered that the picture attached to the report was a context-neutral picture, which in this context could be legitimately disseminated without the prior consent of the plaintiff.