Case Summary and Outcome

In September 2016, the Supreme Court of Appeal in Germany (Bundesgerichtshof) overruled the lower courts’ finding that a newspaper had violated the personality rights of the Mayor of Berlin by publishing photographs of him having drinks on the eve of a significant parliamentary vote on his competence. The Supreme Court of Appeal found that the publisher of the German newspaper BILD-Zeitung, which is part of the publishing house Axel Springer SE, was justified in publishing the photographs as they were published in the context of a political event and, therefore, contributed to a story of public interest. In reaching this conclusion, the Supreme Court of Appeal reasoned that the photograph provided the public with information about his behavior on the night before a vote that could decide the future of his political career, and could then help inform public opinion on his character.

Facts

The Complainant was the Mayor of Berlin between June 2001 and December 2014. After over eleven years in office, the opposition parties in Berlin’s House of Representatives filed a motion of no-confidence against the Complainant because they thought he had been responsible for the immense costs and delay associated with the construction of Berlin’s new airport. On the day of the vote, only 67 out of 147 voted in support of the motion of no-confidence.

The night before the vote, the Complainant was seen in Berlin’s well known restaurant Paris-Bar with the founder of the fashion tradeshow ‘Bread and Butter’. Photographs of the Complainant at Paris-Bar were subsequently published by the German newspaper BILD-Zeitung alongside an article on the Complainant’s years in politics and his alleged fall from power. The pictures were accompanied by comments on how relaxed he seemed having a drink the night before the vote on the motion of no-confidence.

The Claimant alleged that the use of the pictures was an infringement of his personality rights, as protected under Articles 1 and 2 of the German Basic Law. The First Instance Court, as well as the Court of Appeal, ruled in favor of the Complainant.

Decision Overview

The Fourth Senate of the German Supreme Court of Appeal (Court) reversed the lower courts’ decisions. In doing so, the Court criticized the lower courts’ failure to give proper weight to the context in which the photographs were published when balancing the Complainant’s general right to personality under Articles 1 and 2 of the Basic Law against the newspaper’s right to freedom of expression under Article 5 of the Basic Law.

The German Kunsturhebergesetz (law on the protection of copyright in works of art and photographs) states that a photograph of an individual can only be published with that individual’s consent (Article 22 Kunsturhebergesetz), unless the publication falls within a number of exceptions (Article 23 Kunsturhebergesetz). One of these exceptions is where publication relates to “contemporary history” and the publication does not violate the legitimate interests of the individual depicted in the photograph. The Court noted that, on this occasion, the Claimant had not agreed to his image being printed in the newspaper. However, the Court went on to hold that the photographs fell within the definition of “contemporary history”.

The Court highlighted that time was important to the assessment of whether an event falls within the definition of “contemporary history”. The Court reasoned that it encompasses not only events of historical and political importance, but also events of the day that are of general social interest. Furthermore, the Court noted that the media should be given leeway to evaluate what matters are of interest to the public. Nevertheless, any intrusion into an individual’s private sphere must be proportionate. The Court reasoned that when balancing the rights and interests in publishing the photographs, it must take into account the subject, circumstances, and context of the reporting in order to determine whether the media is seriously and objectively discussing a matter of public interest.

The Court found that the photograph depicted a private situation. However, the location was well known and often visited by celebrities/public figures. The Court also stated that, as the Mayor of Berlin, the Claimant had to expect to be seen and recognized, especially on the night before a vote that would impact his political future and in the company of another public figure.

Moreover, the Court observed that the behavior of important politicians before or after a politically important event, in particular a (possible) loss of office, may well be subject to public discussion and the impugned pictures could make a significant contribution to such a discussion. The Court stated that the photographs in this case demonstrated how the Claimant coped with an important political event, particularly with regard to the possible loss of his political position. The fact that the photographs showed the Claimant rather relaxed and not worried provided the public with information from which they could draw their own conclusions about his character.

In light of the above, the photographs were found not to violate any of the Claimant’s legitimate interests under Article 23 Kunsturhebergesetz. Instead, the photographs were deemed to have formed part of the Claimant’s “social sphere” rather than “private sphere”, and therefore did not require a reduced right of the media to impart them. Accordingly, the Court concluded that the newspaper’s right to freedom of expression outweighed the Claimant’s general right to personality in this case.