Court case 2-03 O 6/19 – 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 had 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 upheld the applicant's claim that she had a right to obtain an injunction against the dissemination of her image which she had not consented to. . 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 held that the application for an injunction against the defendant's failure to disseminate the applicant's images was well founded. After considering the graded protection concept, the photojournalism did not offer sufficient protection of the plaintiff's privacy, as she was not directly involved in either the occasion or the content of the reporting. Her picture could therefore no longer be part of a serious and factual discussion of current events, the court ruled and instructed the defendant to refrain from publishing the picture.