LG Frankfurt - 2-03 O 4/19

LG Frankfurt - 2-03 O 4/19
Court:	LG Frankfurt (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 8(1) ECHR Article 10(1) ECHR Article 1(2) Basic German Law Article 2(1) Basic German Law Article 5(1) Basic German Law Article 8(1) ECHR Article 10(1) ECHR
Decided:	19.12.2019
Published:
Parties:	Anonymous
National Case Number/Name:	2-03 O 4/19
European Case Law Identifier:	ECLI:DE:LGFFM:2019:1219.2.03O4.19.00
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	Lareda Hessenrecht (in German)
Initial Contributor:	n/a

The Regional Court of Frankfurt (Landgericht Frankfurt - LG Frankfurt) dealt with the issue of the right to privacy in the illustrated press in two judgments. In the first one which is analysed below, it dismissed the action invoking the so-called graduated protection concept (“abgestuftes Schutzkonzept”).

English Summary

Facts

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.

Dispute

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.

Holding

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.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the German original for more details.

DECISION

The parties are in dispute over the admissibility of publishing a portrait in the context of a report.

The plaintiff is the wife of the well-known... ...and... G.

The defendant is the editor of the magazine "M".

The plaintiff, her husband and their children on the one hand and the ... Verlagsgruppe on the one hand and the publishing group on the other concluded an agreement in 2003 as shown in Annex K7 (p. 182 of the German version). In this agreement the defendant undertook not to report on the protected privacy of the family [the plaintiff], whereby this obligation should not apply if and insofar as members of the family [the plaintiff] make public statements on the topic in question or if important and generally observed events of current historical significance, which are reported on in the daily press in a permissible manner, are the occasion and subject of the reporting.

In the past, the plaintiff and her husband repeatedly appeared in public, with the reports submitted by the defendant extending until 2013 (Annex B1, p. 76/81 et seq.). In 2010, it was reported in detail that the plaintiff and his wife had acquired a ...well (Annex B2, p. 82 et seq.). In the course of this, a report was made in which the plaintiff and her husband posed for photographs at the ...gut für Fotos and pictures of the estate were taken and published. The plaintiff expressed her opinion in this connection (Annex B3, p. 88 (new)). The "A" also reported under the title "Exclusive - the ... private" (Annex B3, p. 101 et seq.). In 2012, the plaintiff and her husband gave an interview to "B" (Annex B3, p. 110 et seq.). In this interview and in an interview with the "C", the plaintiff's husband pointed out that the plaintiff's contribution to the ... was considerable. Reference is also made to the other publications in the annex B3. The plaintiff's husband repeatedly commented in the past that he had little time for the family due to his work.

In the August issue No. 8 of the year 2015, the defendant published an article entitled "..." (Annex K2, p. 22 of the Annex). The article, which the defendant illustrated with the portrait in dispute and which shows the plaintiff and her husband at a public appearance, deals with the imminent termination of the participation of the plaintiff's husband in his talk show on .... The plaintiff's husband is quoted here as saying that he has accepted an extension offer from the .... for professional and private reasons. The article ends by stating that the plaintiff might be able to find more relaxation after the end of his engagement if he finds more time for himself, his wife [first name of the plaintiff] and his ... The portrait in dispute is marked with the explanation "He was certainly the first to inform his wife [first name of the plaintiff]".

Following this reporting, the plaintiff's husband stated to various media that he would spend more time on the ...good and with his wife (Annex B6, pp. 156 et seq. of the German Constitution).

In a letter from her lawyer dated 27 July 2015, the plaintiff sent a warning to the defendant and requested it to issue a cease-and-desist declaration (Annex K3, p. 23 et seq.). The defendant rejected this in a lawyer's letter of 30 July 2015 (Annex K4, p. 25 et seq.) and justified this by stating that the report directly affected the plaintiff as the publicly known wife of the TV presenter, especially since the TV presenter had expressly cited private reasons to justify the termination of his engagement.

The plaintiff then obtained a temporary injunction before the Regional Court of Cologne, which prohibited the defendant from publishing the portrait in question (decision of 4 August 2015, Annex K5, p. 26, as well as the supplement of the Regional Court of Cologne to Case No. 28 O 287/15, p. 8). The defendant did not issue a final statement.

The plaintiff is of the opinion that the use of her portrait is inadmissible. The applicant is to be regarded as a private person within the meaning of the case-law of the ECtHR. The plaintiff had only appeared a few times together with her husband, and the defendant was last able to present a performance in 2013.

As a result of the reporting cited by the defendant, a self-opening of the applicant's private sphere did not take place. The statements were completely superficial and banal. The statements of the plaintiff's husband could not be attributed to her. The attacked reporting also concerned the area of privacy.

Insofar as the defendant referred to a judgment of the Cologne Regional Court (Annex B7, p. 159 et seq.), the present case was structured differently. The attacked report does not even reveal that the ...good is operated jointly by the plaintiff and her husband. The challenged article essentially contained speculations which could not justify an encroachment on the right to one's own image. There was mere speculation as to whether the plaintiff's husband would now spend more time with his wife and the ...good.

The use of the portrait was also not appropriate to the context. The report only dealt with the plaintiff. The plaintiff could also invoke a legitimate interest within the meaning of § 23.2 KUG. The reporting criticized the plaintiff's husband for certain conduct with regard to his TV show. The negative reporting also had a negative effect on the plaintiff's personality image for a large part of the readership.

The plaintiff requests,

order the defendant to refrain, in the absence of an administrative fine of up to EUR 250 000 to be imposed by the court for each case of infringement, or, in the alternative, if that fine cannot be recovered, to impose a detention order or a detention order of up to 6 months, whereby the detention order may not exceed a total of 2 years and must be enforced against its personally liable partner

to publish and/or distribute and/or have published and/or distributed the following photograph

[Picture of plaintiff and husband]

as happened in "M" No. 8 of ...

The defendant moves,

dismiss the action.

The defendant takes the view that the applicant is publicly known. She and her husband specifically used her husband's celebrity to market the ...well publicised product which they jointly operated. The decision of the plaintiff's husband to end his involvement in the talk show came as a surprise and had created a considerable public interest, which is shown by the considerable media echo. Therefore, the question had arisen whether the plaintiff's husband would now support his wife more in the operation of the common ...good. Moreover, the plaintiff's husband had answered this question retrospectively.

The plaintiff's privacy was not affected by the publication of the plaintiff's photo, which was the only one under attack here. A violation of privacy could result from the text reporting alone, which was not attacked by the plaintiff.

The interests of the plaintiff within the meaning of Section 23 (2) KUG do not conflict with this. The portrait used at an official event had been produced with the consent of the plaintiff for publication purposes. It depicted the plaintiff only in a small format. The portrait was neither detrimental nor infringing on personal rights.

The file of the Regional Court of Cologne on case no. 28 O 287/15 was consulted and was the subject of the oral proceedings.

For further details, reference is made to the written pleadings exchanged between the parties, including annexes and other contents of the file.

Reasons for the decision

The action is unfounded.

1. the plaintiff has no claim against the defendant for omission of the publication of the portrait in question, not even on the basis of §§ 823, 1004 BGB in conjunction with 22, 23 KUG, Art. 85 DSGVO.

a. The attacked portrait reporting does not inadmissibly violate the plaintiff's right of personality. This also applies in the context of text reporting (not separately attacked).

aa.

The admissibility of portrait publications is to be assessed according to the graduated protection concept of §§ 22, 23 KUG (BGH GRUR 2007, 527 - Winterurlaub m.w.N.). According to this concept, portraits of a person may only be distributed with his or her consent (Art. 22 p. 1 KUG). However, according to § 23, Subsection 1, No. 1, KUG, there is an exception to this rule if it concerns portraits from the field of contemporary history. However, this exception does not apply to a distribution which violates the legitimate interests of the person depicted in accordance with Section 23 (2) KUG (BGH GRUR 2013, 1065 marginal no. 10 - Ice Princess Alexandra).

Even the assessment as to whether illustrations are portraits from the field of contemporary history within the meaning of Art. 23 para. 1 no. 1 KUG requires a weighing of the rights of the person depicted under Art. 1 para. 1, 2 para. 1 GG, 8 para. 1 ECHR on the one hand and the rights of the press under Art. 5 para. 1 GG, Art. 10 para. 1 ECHR on the other. The concept of contemporary events, which is decisive for the question of whether a portrait from the field of contemporary history is involved, covers all issues of general social interest. In addition to political and social events, this can also include events, even if they are only of regional significance. However, an interest in information is not unlimited; rather, the principle of proportionality limits the intrusion into the personal sphere of the person depicted (BGH GRUR 2013, 1065 marginal no. 12 - Ice Princess Alexandra; BGH GRUR 2008, 1024 - Shopping with a cleaning lady on Mallorca).

Especially in the case of entertaining content, it is particularly important to weigh up the conflicting legal positions. The interests of the media must be balanced as gently as possible with the protection of the personality of the person affected by a report, in particular the protection of the core area of privacy, which is partly based on constitutional law in the form of guaranteeing the right to one's own image and guaranteeing privacy. For the weighing up of interests, it is of decisive importance whether the media in the specific case discuss a matter of public interest seriously and in a factual manner so as to meet the information requirements of the public and contribute to the formation of public opinion or whether - without reference to a contemporary historical event - they merely satisfy the curiosity of readers or viewers about the private affairs of prominent persons. The information content of a photojournalism must be determined in the overall context in which the portrait of a person is placed, in particular taking into account the associated textual reporting (BVerfG NJW 2008, 1793 marginal no. 68 - Caroline von Hannover; BGH GRUR 2013, 1065 marginal no. 13 - Eisprinzessin Alexandra m.w.N.). Pictures can thus supplement a verbatim report and serve to expand its content, for example to underline the authenticity of what is described. Another information purpose protected by Article 5.1 of the Basic Law may be to attract the reader's attention to the verbal report by adding pictures of the persons involved in the reported event. If, however, the accompanying report is limited solely to creating some kind of occasion for the depiction of a prominent person, the report does not indicate a contribution to the formation of public opinion. In this respect, it is not constitutionally appropriate to give the interest in publication priority over the protection of personality (BVerfG NJW 2008, 1793 marginal no. 68 - Caroline von Hannover).

According to this, if the verbatim report deals with a contemporary historical event, portraits of the persons involved in this event may also be published if they were taken on another occasion, provided that they are context-neutral and their use in the new context does not cause any additional impairment of the right of personality (BVerfG AfP 2001, 212, 216 - Prinz Ernst August von Hannover; BVerfG NJW 2006, 2835; BGH GRUR 2010, 1029, 1031 - Charlotte in the heaven of love; BGH GRUR 2002, 690, 692 - Marlene Dietrich; Wandtke/Bullinger-Fricke, UrhG, 5. UrhG, 5th ed. 2019, § 23 KUG marginal no. 32; Dreier/Schulze/Specht, UrhG, 6th ed. 2018, § 23 KUG marginal no. 21a) The resulting possibility of having recourse to neutral archive material also takes into account concerns of the protection of personality rights, since harassment by press photographers can at least be kept within limits (BVerfG AfP 2001, 212, 216 - Prince Ernst August von Hannover; BVerfG GRUR 2008, 539, 543 - Caroline von Hannover; Engels/Schulz, AfP 1998, 582; Wandtke/Bullinger-Fricke, loc. cit.) Whether a picture is context-neutral depends on the picture content in interaction with the verbal reporting of the event. This is to be assumed if the original context from which the image originates cannot be recognised or is so neutral that it does not influence or at least does not distort the meaningfulness of the photograph in the new context, or if the meaningfulness of the image does justice to the new factual context (Wandtke/Bullinger-Fricke, op. cit.).

bb.

The attacked reporting meets these requirements. In weighing up the conflicting interests, the interest to which the defendant is entitled under Article 5.1 of the Basic Law prevails here.

The reporting is essentially about the plaintiff's husband and his motives in terminating his involvement in his own life. talk show. It is shown that the plaintiff's husband was a perfectionist and had criticised his programme. At the end of the report it is stated that the plaintiff's husband "perhaps" could find more relaxation if he found more time for himself, his wife and his ... good.

The contemporary event about which the defendant is reporting here is therefore the fact that the plaintiff's husband had announced that he was going to increase his involvement in the ... ...on the talk show. There was also a considerable public interest in this decision, which was probably surprising for the public. Furthermore, the plaintiff's husband had also cited "private reasons" for his decision, so that there was also a public interest in the nature or origin of these "private reasons" (see also LG Köln, Urt. v. 13.04.2016 - 28 O 384/15, p. 9, Annex B7, p. 159/167 of the original text).

In this context, it must be taken into account in the weighing of interests that the plaintiff herself has in the past, particularly with regard to what she acquired and operated jointly with her husband, ...well made public and thus opened up this area of her private sphere. The protection of intimacy or privacy can in fact cease to apply if the holder of a fundamental right opens up this area of private life of his own accord and makes certain matters which are in themselves attributable to intimacy or privacy accessible to the public and thus at the same time touches the sphere of others or the interests of the community (Federal Court of Justice NJW 2012, 767 marginal no. 12 - Pornodarsteller m.w.N.). The question to what extent and to what extent (see BGH NJW 2018, 3509 marginal no. 27 with note Lauber-Rönsberg) the person concerned has himself disclosed facts to the public can also play a role in the assessment of self-opening. However, the protection of discretion is only waived to the extent to which the person concerned has specifically opened up his or her privacy. A statement in public therefore does not automatically lead to a general forfeiture of the protection of privacy (LG Berlin NJW 2016, 1966; LG Frankfurt a.M., Urt. v. 27.09.2018 - 2-03 O 320/17, BeckRS 2018, 25130; LG Frankfurt a.M., Judgement of 10.10.2019 - 2-03 O 500/18, BeckRS 2019, 27254; Erman/Klass, BGB, 15th ed. 2017, Annex § 12 marginal no. 121a with further references), rather the respective publication must correspond to the part of the intimacy or privacy of the person concerned that has been made accessible to the public (BGH NJW 2018, 3509 marginal no. 27).

However, this is the case here. The Defendant has submitted and - to the extent that this is in dispute between the parties at all - has proven to the conviction of the Chamber that the Plaintiff, after acquiring the ...good with her husband - similar to a home story - went public. In this context, the plaintiff, in particular together with her husband, gave interviews in which it was also a question of how much time the plaintiff's husband can spend on the ...good and with his wife (see annex B3, pp. 88/110 et seq.) It was in this very context that the plaintiff's husband also later expressed his opinion and also revealed details of his private life. The plaintiff must be admitted that these statements are in each case superficial and lacking in detail. On the other hand, the text reporting of the defendant criticised by the plaintiff is also superficial and poor in detail, as it is about the obvious assumption that the plaintiff's husband now has more time for the plaintiff and that ...good. Ultimately, therefore, the reference to the ...good and the question of how much time the plaintiff's husband will spend there and with his wife has been opened up thematically by the plaintiff and therefore no longer falls under the protection of privacy.

In addition, it had to be adjusted that the intrusion into the plaintiff's privacy would not have a high intensity. For, as shown above, it is an obvious conclusion - also openly posed as a question (see BGH NJW 2017, 482) - that the plaintiff's husband may now have more time with ...well and plaintiff.

Finally, it had to be taken into account that the plaintiff herself - at least with regard to the statements criticised here and the photojournalism - is precisely not to be regarded as a "private person" within the meaning of the case-law of the ECtHR. The applicant rightly points out that the ECtHR distinguishes between politicians ("politicians/personnes politiques"), other persons in public life or in the public eye ("public figures/personnes publiques") and private persons ("ordinary persons/personnes ordinaires"), whereby reporting on the latter is subject to narrower limits than in relation to the circle of other persons in public life and the protection of politicians is the weakest (see BVerfGE 153, 286 (388)). BGH GRUR 2019, 866 marginal no. 14 - Eine Mutter für das Waisenkind m.w.N.). Unlike a purely private person, however, the plaintiff - undisputedly - appeared in public with her husband on several occasions. In another case, the Federal Court of Justice (BGH) had classified a person affected, whose prominence also emanated mainly from her family members, as a "relatively prominent personality", after she had at least appeared three times at public events and had been reported many times about the death of her parents and her adoption (BGH GRUR 2019, 866 marginal no. 20 - A guardian for the orphan). The present case is comparable to this. In any event, the plaintiff appeared in public with her husband on eight occasions (see reply of 30 September 2019, p. 1, p. 176 of the present decision). In addition, she and her husband made public appearances - with multiple depictions with her consent - on the occasion of the acquisition of the property. The challenged reporting using the plaintiff's portrait was also in this area, which was opened by the plaintiff herself (see above).

Finally, the contested portrait must also be regarded as contextually neutral. It is undisputed that it was created during another event, but with the consent of the plaintiff. However, this context cannot be inferred from the portrait. Rather, the plaintiff is standing with her husband in an unrecognisable environment and smiling into the camera. The plaintiff is also not portrayed negatively or in an unfavourable situation, so that no further independent and inadmissible interference with the plaintiff's right of personality can be inferred from the content of the portrait either.

In view of this, the plaintiff can also not successfully plead that the photo report is inadmissible due to the publication of pure speculation. It is true that photojournalism based solely on unfounded speculation cannot justify photojournalism by persons who are otherwise not affected by the contemporary event (see BVerfG NJW 2008, 1793 marginal no. 68 - Caroline von Hannover; Higher Regional Court Cologne, judgment of 19.10.2017 - 15 U 161/16, BeckRS 2017, 143085 marginal no. 45/48 with further references). However, this is not a completely unfounded speculation, which is evidently only intended to justify the photojournalism on the plaintiff. Rather, the plaintiff's husband has expressly stated "private reasons" for the termination of his engagement. In this respect, the text reporting of the defendant only takes up the area of privacy which the plaintiff and her husband themselves have opened up in the past and concludes that the plaintiff's husband can now spend more time with the plaintiff and his ...well.

Finally, according to the undisputed submission of the defendant, the plaintiff's husband himself stated, following the report on the termination of his engagement, that he would now spend more time on the ...good, and in so doing expressly referred to "we", which also included the plaintiff (see also LG Köln, Urt. v. 13.04.2016 - 28 O 384/15, p. 9, Annex B7, pp. 159/167 et seq.) Although such a statement by the plaintiff's husband without the participation of the plaintiff cannot bring about a self-opening to the detriment of the plaintiff, the plaintiff's statement must nevertheless be included in the weighing of the inadmissibility of the challenged photojournalism, particularly since it relates to precisely that area which the plaintiff had previously opened up to the public.

In particular, this does not constitute "unfounded" speculation, but rather an expression of opinion based on the prior conduct of the plaintiff and her husband and the reasons given by them for the termination of the contract as well as his subsequent statements (see also LG Köln, Judgment v. v. 13.04.2016 - 28 O 384/15, p. 10, Annex B7, p. 159/168 of the original version).

Within the framework of the necessary weighing of interests, the plaintiff also cannot successfully invoke conflicting interests pursuant to § 23.2 of the KUG. For the plaintiff has in the past tolerated photojournalism and in particular the area around her ...well similar to a home story to the public. The contested portrait does not represent the plaintiff itself negatively either. Insofar as the plaintiff takes the view that she is portrayed negatively by the fact that her husband is portrayed as a perfectionist, this alone is not suitable, in view of the above statements, to allow the plaintiff to appear in such a negative light that the reporting and portrayal of her husband could not be expected of her. Here, too, it had to be taken into account that the plaintiff had repeatedly shown herself in public with her husband in the past and had had herself portrayed.

After weighing these aspects again, also taking into account the overall context of the contested reporting, the Board therefore considers the reporting to be admissible.

b. In this respect, the plaintiff cannot rely on the agreement reached with the defendant pursuant to Annex K7. In this respect, it can be left open whether this agreement merely reflects the legal situation or whether it concerns reports from the private sphere that go beyond this and which might otherwise be admissible under press law.

The defendant rightly points out that the plaintiff in this case does not attack the text reporting - which in its opinion encroaches on privacy - but only the portrait showing the plaintiff. However, since this was indisputably created at a public event and with the consent of the plaintiff, the publication of this picture does not affect the plaintiff's privacy. Although the photo report is always to be assessed in the overall context of the text report, the plaintiff does not object to the content of the text report, so that it cannot be used in this respect.

2. the decision on costs is based on Paragraph 91 of the ZPO, since the applicant has been unsuccessful in its entirety.

3. The decision on provisional enforceability is based on § 709 ZPO.