LG Frankfurt - 2-03 O 6/19

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LG Frankfurt - 2-03 O 6/19
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Court: LG Frankfurt (Germany)
Jurisdiction: Germany
Relevant Law: 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: n/a
Parties: anonymous
National Case Number: 2-03 O 6/19
European Case Law Identifier: ECLI:DE:LGFFM:2019:1219.2.03O6.19.00
Appeal from: n/a
Language: German
Original Source: Lareda Hessenrecht (in DE)

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 second one which is analysed below, it 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 by invoking the so-called graduated protection concept (abgestuftes Schutzkonzept).

English Summary[edit | edit source]

Facts[edit | edit source]

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[edit | edit source]

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.

Holding[edit | edit source]

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.

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English Machine Translation of the Decision[edit | edit source]

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... G.

The defendant is the editor of the magazine "W". In issue no. 40 of ... 2015, the defendant published an article entitled "..." (Annex K1, p. 8 of the Annex). The article which the defendant illustrated with the portrait in dispute here and which the plaintiff shows while pouring a wine glass is about an incident from the TV programme of the plaintiff's husband. The picture in dispute is marked with the explanation "G and his [plaintiff] have been hobbies for five years. and spend a lot of time on their ...good".

The plaintiff had the defendant warned by a lawyer's letter dated 01.12.2015 and requested to make a cease-and-desist declaration (Annex K2, p. 11 of the annex). The defendant rejected this in a lawyer's letter of 7 December 2015 (Annex K3, p. 12 et seq.) and justified this on the grounds that the portrait had been painted on the occasion of a public event at which the plaintiff had accompanied her husband, a public figure.

The plaintiff then obtained a temporary injunction before the Regional Court of Cologne, which prohibited the defendant from publishing the portrait in question (order of 29 December 2015, Annex K4, p. 14 et seq., as well as supplements from the Regional Court of Cologne to Case No. 28 O 472/15, p. 21). The defendant did not issue a final statement.

The plaintiff is of the opinion that the depiction of the plaintiff is inadmissible. The plaintiff was to be regarded as a private person within the meaning of the case-law of the ECtHR. The challenged article contained only speculations which could not justify an interference with the right to one's own image. According to the applicant, the caption of the picture serves only to pretend that there is a reason for the picture of the applicant.

The use of the portrait was also not appropriate to the context. The report referred to an incident in the TV programme of the plaintiff's husband. The plaintiff was not mentioned in the continuous text or the headline, but was included in the reporting solely by the tiny picture and the subtext. Such a banal caption could not turn the picture in dispute into a portrait of contemporary history. It is not enough to mention the person depicted in just one sentence.

The plaintiff could also invoke a legitimate interest within the meaning of Paragraph 23(2) of the KUG. For the reporting criticized the plaintiff's husband for certain conduct in 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 claim was not statute-barred, as the action had been filed in 2018 and served "soon" within the meaning of § 167 of the Code of Civil Procedure. The plaintiff did not have to bear the risk of delayed forwarding by the court. The literature even discusses an upper limit of 10 months, which has not been reached here.

The plaintiff filed a claim under 28.12.2018 by fax, in the original received on 03.01.2019, and in doing so submitted a crossed cheque for the court costs. According to the note dated January 16, 2019, the check was returned to the plaintiff's representatives (File, p. 17R d.A.). On the same day, the plaintiff's representatives were requested to pay an advance on costs, which was received on January 23, 2019 (File II, p. A.). For reasons that are no longer comprehensible, the matter was not submitted directly to the Chairman. By order of 17 April 2019, a date for the oral hearing was set (File, p. 18, loc. cit.), the action was served on the defendant on 30 April 2019 (File, p. 28, loc. cit.).

The plaintiff requests,

order the defendant to refrain, in the absence of a 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, from imposing a detention order or a detention order of up to 6 months, with detention order not exceeding 2 years in total, to be enforced against its personal associate

to publish and/or distribute and/or have published and/or distributed the following picture:

[ Picture of the plaintiff pouring wine ]

as happened in "W" No. 40 dated ... 2015 on p. 8.

The defendant moves,

dismiss the action.

The defendant takes the view that the photojournalism is admissible. In connection with a critical report on the conduct of the plaintiff's husband, the defendant showed a photograph showing the plaintiff and her husband together at an official event in ... ... ...at an official event in their home. The photo shows the plaintiff together with her husband pouring the wine. It is a contextually appropriate picture which shows the plaintiff as her husband's companion.

The defendant raises the objection of the statute of limitations. It was incumbent on the plaintiff to ask the court why service was not effected promptly.

The file of the Regional Court of Cologne on Case No. 28 O 472/15 was consulted and was the subject of the oral proceedings.

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

Reasons for the decision

The action is well founded.

1. the plaintiff is entitled to a claim against the defendant for the omission of the publication of the portrait in question under §§ 823, 1004 BGB in conjunction with 22, 23 KUG, Art. 85 DSGVO.

a. The attacked portrait reporting violates the plaintiff inadmissibly her personal rights.

aa.

The admissibility of portrait publications is to be judged according to the graded 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 text reporting (BGH GRUR 2013, 1065 marginal no. 13 - Eisprinzessin Alexandra m.w.N.).

According to this, if the verbal 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 contextually 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 does not meet these requirements. The contemporary historical event that the reporting takes up is the behaviour of the plaintiff's husband in his TV programme. The plaintiff has nothing directly to do with this incident. She was not involved in this (see in this respect also OLG Frankfurt a.M., Urt. v. 25 May 2018 - 16 U 134/17; Frankfurt am Main Regional Court, judgment of 18 January 2018 - 2-03 O 156/17; LG Frankfurt a.M., judgment of 17.08.2017 - 2-03 O 424/16, ZUM 2018, 58 = BeckRS 2017, 127772). The reference established by the defendant alone through the picture designation does not find any resonance in the contemporary historical event and is accordingly in the overall context of the reporting no longer part of the serious and factual discussion of the contemporary historical event on which the reporting is based (see LG Frankfurt a.M., Judgement of 17 August 2017 - 2-03 O 424/16, ZUM 2018, 58 = BeckRS 2017, 127772). 18.01.2018 - 2-03 O 156/17; LG Frankfurt a.M., Judgement of 17.08.2017 - 2-03 O 424/16, ZUM 2018, 58 = BeckRS 2017, 127772). Accordingly, the use of the portrait in the present case is not appropriate to the context.

cc. The portrait is also not context-neutral according to the principles described above, but originates as shown above and is evident from the picture itself in another, foreign context.

dd. The result of the weighing required here is to the detriment of the defendant.

ee. In the weighing process described, the Chamber also took into account the fact that the DSGVO has been in force since 25 May 2018. In this respect, however, the Chamber applies §§ 22 et seq. of the DSGVO, taking into account Art. 85 DSGVO. KUG and the principles established by case law in this regard, since in this respect - at least here in relation to journalistic content (see LG Frankfurt a.M., Urt. v. 13.09.2018 - 2-03 O 283/18, ZD 2018, 2018, 587) - §§ 22 f. KUG continue to apply (OLG Cologne K&R 2018, 501 marginal no. 6; OLG Cologne, judgement of 13 September 2018 - 2-03 O 283/18, ZD 2018, 2018, 587) 10.10.2019 - 15 U 39/19, BeckRS 2019, 25735; LG Frankfurt a.M., judgment of 27.09.2018 - 2-03 O 320/17; Sydow/Specht, DSGVO, 2nd ed. 2018, Art. 85 marginal no. 13 ff.; Lauber-Rönsberg/Hartlaub, NJW 2017, 1057, 1060).

b. The claim is not time-barred, even contrary to the opinion of the defendants; in particular, the action has been served "soon" within the meaning of § 167 of the Code of Civil Procedure.

aa.

The claim for injunctive relief in dispute arose as a result of the defendant's reporting in 2015. The statute of limitations after the standard statute of limitations of §§ 195, 199 BGB of three years would accordingly have come into effect at the end of 31 December 2018. According to the receipt stamp on the fax of the pleading of 28 December 2018, the statement of claim was filed on the same day and thus before the expiry of the limitation period.

bb.

In answering the question whether service was effected "soon" within the meaning of § 167 of the Code of Civil Procedure, it is not permissible to take a purely chronological approach. Rather, an evaluative component is added (BeckOK-ZPO/Dörndorfer, 34th ed. 2019, § 167 marginal no. 4; Cepl/Voß-Matthes, trial commentary GewRS, 2nd ed. 2018, § 167 marginal no. 7; Musielak/Voit-Wittschier, ZPO, 16th ed. 2019, § 167 marginal no. 7). Since service is ex officio, the parties are to be protected from disadvantages caused by delays within the judicial business, because these delays cannot be influenced by them (BGH NJW 1988, 1980; BGH NJW 2003, 2830; BGH NJW 2006, 3206). There is therefore no absolute upper time limit after which a service is no longer to be considered "soon", so that delays of several months or several years may also be covered (BGH NJW 2003, 2830; BGH NJW-RR 2003, 599; BGH NJW 2006, 3206; BAG NJW 2013, 252; OLG Düsseldorf, judgement of 30.04.2015 - I-15 U 100/14, BeckRS 2015, 9096 marginal note 19). Delays in the service of documents caused by the court's incorrect treatment of the facts are generally not attributable to the plaintiff (BGH NJW 1988, 1980; BGH NJW 2001, 885; BGH NJW-RR 2004, 1575; BGH NJW 2006, 3206; OLG Düsseldorf, loc. cit.) On the other hand, such not only minor delays are attributable to a party, which he or his legal representative could have avoided if the proceedings had been conducted properly (BGH NJW 2001, 885; BGH NJW 2006, 3206). This is because the retroactive effect must also be reasonable for the recipient, which cannot be assumed if the party making the notification itself delays the proceedings in an accusable manner (BGH NJW 2006, 3206; BGH NJW 2009, 999; BGH NZM 2011, 752).

In view of this, service is "imminent" if it takes place within a reasonable period of time according to the circumstances of the individual case, if the party effecting service has done everything necessary and reasonable to ensure speedy service, and if there are no conflicting interests of the recipient worthy of protection (OLG Düsseldorf, loc. cit., para. 19).

According to case law, an obligation on the plaintiff to take further measures should only apply if the plaintiff and his attorney have not yet done everything that procedural law requires of them to do to ensure proper service at the time when the delay occurs. This also applies to the case of the lack of a requirement for the advance payment of fees, because even there the plaintiff and his attorney know that the payment is still outstanding and that the action can only be served after this (OLG Frankfurt a.M. NJW 2014, 3667 marginal no. 35). In accordance with this principle, the Federal Court of Justice (BGH) assumed that in filing the action and simultaneously applying for legal aid, the plaintiff had done everything reasonable for him, since he could trust that his application for legal aid would be decided before any claim for court costs (BGH NJW-RR 2015, 125). In contrast to this, the Higher Regional Court (OLG) Frankfurt am Main assumed a statute of limitations in a case in which the plaintiff had initially transferred the advance payment of costs, but the amount in dispute was set higher and then the payment of costs was delayed. Because the plaintiff had known, due to the higher amount in dispute, that further costs were also to be paid. He therefore had an obligation to follow up (OLG Frankfurt am Main NJW 2014, 3667 marginal no. 37). Similarly, the BGH had assessed a case in which the advance on costs had not yet been paid and the request for the advance on costs had inadvertently not been sent to the plaintiff (BGH NJW 2009, 984 marginal 17 et seq.). In the cases described, the plaintiff had therefore in each case not yet done everything reasonable to enable service.

cc.

In application of these principles, service "in the near future" within the meaning of § 167 ZPO is to be assumed. The plaintiff wanted to submit the advance on costs by crossed cheque directly with her action. After the court had returned it and requested payment by bank transfer instead, the plaintiff ordered the advance on costs within a few days. The plaintiff had thus done everything necessary for service of the claim. There was no reason for the plaintiff to assume that the service would not be effected immediately. In view of the period of approximately three months since the payment of the advance on costs, it was not necessary to take further action by requesting the court.

The delay in service was ultimately due to the court's internal procedures, whereby it was no longer possible to understand why the file had not been submitted for scheduling.

c. There is also the risk of repetition necessary for the injunction. As a rule, the first inspection indicates the risk of repetition (settled case law BGH NJW 2018, 3506 marginal no. 26 - direct mailing; BGH NJOZ 2018, 194 marginal no. 17; in each case with further references). In general, the risk of recurrence can be refuted by issuing a declaration of discontinuance with penalty provisions (BGH NJOZ 2018, 194 marginal no. 17), which was, however, refused by the defendant. The defendant thus demonstrates that there is still a risk of recurrence (see BGH GRUR 1998, 1045, 1046 - Brennwernwertkessel).

d. The decision on the threat of an administrative order is based on § 890 ZPO.

2 The decision on costs is based on § 91 ZPO, as the defendant has been unsuccessful in its entirety.

3. the decision on provisional enforceability is based on section 709 of the Code of Civil Procedure