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Case:
BVerfG 1 BvR 240/04
Date:
14 February 2005
Translated by:
Raymond Youngs
Copyright:
Professor Sir Basil Markesinis

Reasons:

1
The constitutional complaint concerns the use of images in a photomontage.

I.

2
1. The complainant was the Chairman of the Board of Deutsche Telekom AG. In 2000 the defendant in the original proceedings (from now on called the defendant) reported on the economic and financial situation of Deutsche Telekom in a magazine which it published. It illustrated the article with a picture of a man in a business suit, who was sitting on a large crumbling magenta-coloured T and looking up unconcernedly. The photograph of the complainant’s head had been put on the upper part of another man’s body by way of a photomontage. At the same time the picture of the head had been technically adapted. The degree of this adaption has not been finally resolved by the courts, but the head has unquestionably been stretched by about 5%. The defendant used the motif for further illustration of the article, and repeated it in a later edition.

3
2 The complainant objects to the adverse alteration of his face by subliminal manipulation in the composition of the photomontage. Technical intervention had the effect of making the face longer as a whole, the cheeks and chin more fleshy and broader, the chin area more corpulent and the skin colour paler than on the original photo. Besides this, the head was too small overall in relation to the body, and sat too low on the shoulders, so that the neck appeared to be shorter and thicker.

4
The Landgericht and the Oberlandesgericht have allowed the complainant’s claim for an injunction and have, in essence, stated on this issue: The defendant could in principle rely on the protection of freedom of opinion for the satirical image. It had however violated the complainant’s general right of personality in an unlawful manner by showing his head detrimentally altered by subliminal alteration. Because of the satirical slant to the message behind the image, the photomontage under challenge also came in principle within the concept of art under Art 5 para 3 sentence 1 of the Basic Law. But in any case, following a balancing exercise, the alteration of the complainant’s image was an incorrect assertion of facts, and not justified. The image of the complainant’s head was not satirical in nature but close to reality, and could be considered separately.

5
Following the defendant’s appeal in law, the Bundesgerichtshof has quashed the decisions at the earlier instances by the judgment which is under challenge, and has rejected the claim as a whole. The complainant’s general right of personality had no priority in this case on a balancing of interests with the basic right of freedom of opinion. In the case of satire, the satirical slant had first of all to be separated from the real content of the message. The appeal court, by assuming that the alterations to the picture of the complainant were not seen by the reader as satirical defamiliarisation, defined the scope of the satirical slant, which was crucial here, too narrowly, and failed to recognise its significance. The ¿¿¿individual consideration¿¿¿ by the appeal court of the components of the photomontage was flawed from the start, as, according to the constant case law of the Federal Constitutional Court and of the deciding senate, the individual parts of a satire were to be assessed in the overall context.

6
2. The complainant complains of the violation of his general right of personality (Art 2 para 1 in combination with Art 1 para 1 of the Basic Law) by the decision under challenge.

7
The Bundesgerichtshof failed to recognise that even a trivial alteration of a person’s face could represent a substantial invasion of the right of personality. The danger existed, especially with ¿¿¿subliminal¿¿¿ manipulations, that they were not recognisable as such by the reader, and this gave rise to the impression that it was a picture which was true to life. The overall consideration of the matter undertaken by the Bundesgerichtshof did not consider the dangers for the right to one’s own image, as an expression of the right of personality, which arose from the modern technical possibilities of manipulation of an original photograph. If every manipulation of a photo in the making of a satirical photo collage was classified as a component of the satire, this would amount to a carte blanche to alter a person’s appearance detrimentally for the purpose — in order to fit the content of the message in question — of making them appear as bad as possible. The manipulated picture of the complainant should therefore be classified as an incorrect assertion of facts, which neither came within the protected area of freedom of art nor of freedom of expression of opinion.

8

II

9

10
The constitutional complaint, which is admissible, is well founded. The decision under challenge violates the complainant’s general right of personality under Art 2 para 1 in combination with Art 1 para 1 of the Basic Law.

11
1. The general right of personality ensures that an individual can himself determine how he presents himself to the public (references omitted). The right to one’s own image as an expression of this general right of personality therefore protects the holder of the basic right from the dissemination of his image, insofar as agreement or some other ground of justification — for instance under ¿¿¿¿ 23 f of the Artistic Creations Act (KUG) — is absent. The general right of personality also protects from dissemination of a technically manipulated picture which creates the appearance of being an authentic picture of a person.

12
The general right of personality is subject to limitations because of the reservation in Art 2 para 1 of the Basic Law. Its restrictions include freedom of opinion (Art 5 para 1 of the Basic Law) as well as freedom of art (Art 5 para 3 of the Basic Law). The Bundesgerichtshof has stressed in this case that the protected area of freedom of art was not opened up merely by the satirical nature of the representation. However in the end it left undecided whether the representation objected to was protected by Art 5 para 3 of the Basic Law, as it was under the protection of freedom of opinion (Art 5 para 1 of the Basic Law) anyway, which in this case had priority over the right of personality. The yardstick for examination of a justification for violation of the personality here is therefore Art 5 para 1 of the Basic Law.

13
2. The decision of the Bundesgerichtshof that the complainant had to accept the dissemination of the technically manipulated facial photographs does not stand up to an examination in constitutional law without qualification.

14
Protective claims in civil law are available to the person affected for realisation of the right of personality, in particular under ¿¿¿¿ 823, 1004 of the BGB and ¿¿¿¿ 22 f of the KUG. The application for an injunction in this case, which the Bundesgerichtshof rejected, was based on them. Application of ordinary law by the specialist courts is not examined by the Federal Constitutional Court, but it does examine whether they have determined the meaning and scope of the basic rights affected by their decision incorrectly or imperfectly, or assessed their importance incorrectly (references omitted). The Bundesgerichtshof has failed to recognise the scope of the protection of the personality in constitutional law, with the result that it has not attained the required balance between the right of personality and freedom of opinion.

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a) aa) There is certainly no objection in constitutional law to the fact that the Bundesgerichtshof has included the message of the picture within the constitutional law protection of the report concerned. It interprets the image as an illustration of a report in words about a subject which interests the public, namely the condition of Deutsche Telekom and the complainant’s responsibility in relation to it. The image shared the basic right protection of the report which it illustrated.

16
bb) But the Bundesgerichtshof is wrong in assuming that the complainant’s justified interest not to be depicted in this way was not violated so that his agreement to the publication of the picture was unnecessary.

17
(1) In its legal evaluation, the Bundesgerichtshof has classified the photomontage as a satirical image. For this it has invoked the case law of the specialist courts and of the Federal Constitutional Court according to which, to grasp its real nature, the image must be detached from its satirical slant, in order to determine the content of the underlying message of the image (references omitted). The Bundesgerichtshof has done this here, in conformity with the decisions at the earlier instances to the effect that the image of the complainant is meant to symbolise him sitting ¿¿¿enthroned¿¿¿ and unconcerned on the problems of Deutsche Telekom.

18
The Bundesgerichtshof has not followed the appeal court in holding that the image of the head and the manipulation of it was to be assessed legally in a separate way. It thought instead that an overall consideration of the photomontage was necessary. A classification of the picture as a whole, ie including the head, within the unity of the satirical image was therefore required. An assessment of the photographic image of the head as an untrue assertion of fact was ruled out from the outset, because the reader could doubtless recognise that the image as a whole, consisting of the big ¿¿¿T¿¿¿ and the person sitting on it, was a graphic montage. A fully realistic picture was therefore certainly not to be expected. In view of its satirical character, an analytical method of looking at it was excluded, since an individual consideration of its components carried the risk that the satirical nature of the image would be missed. Besides, the idea that the claimant looked as he was depicted did not fit with a photomontage. It was sufficient for a satirical illustration of a report that the reader could recognise the claimant.

19
(2) These statements only stand up to examination in constitutional law to a limited extent.

20
The view of the Bundesgerichtshof leads in the end to manipulations of a photographic image of a person’s face which do not prevent him being identifiable never being capable of amounting to violations of the personality if they are put together with other images in a satirical context. This would mean that there would be no protection of the right of personality against technical manipulations, in particular ones which were not easily recognisable, for the sole and simple reason that the altered picture was placed in the context of satirical distortion. The case law of the Federal Constitutional Court on the legal assessment of satirical representations does not however have the intention in principle of limiting or excluding protection of the personality in such situations. It intends merely to ensure that something which is in conflict with the right of personality does not fall outside the protection of the basic rights of communication from the outset just because it is arranged in a context which — as is the case with satirical representations — operates by exaggeration, distortion and defamiliarisation as a stylistic device. Overall consideration should be decisive if, on a division of individual messages, the protection of the message as a whole, or that of the individual message as a component of the whole message would be impaired. Therefore the core of the message should be grasped first, and examined to see whether it was reconcilable with Art 5 of the Basic Law, taking into consideration the basic right protection of the personality. The core of the message as discovered is, in so far as it expresses an evaluation, to be examined to see whether invective is present. If on the other hand it contains a communication of facts, it is necessary to elucidate whether it is true, or justified in some other way.

21
(3) The legal assessment is not however limited to the core of the message. The couching of the message must also be examined separately to see whether it contains an expression of contempt about a person (reference omitted), or violates the right of personality in another way. Consideration must be given here to the fact that standards for the assessment of the couching of the message are in this respect different, and as a rule less strict than for the assessment of the core of the message, as defamiliarisation is characteristic of the chosen type of representation (reference omitted). The constitutional law protection of the couching of a message in a photomontage is not however fully removed if the isolatable individual parts considered on their own have a distorting effect.

22
b) It cannot be excluded here that the use of a technically manipulated photo of the complainant’s face effects an independent violation of the personality.

23
The intention emphasised by the Bundesgerichtshof of riveting the reader’s attention by an image which ¿¿¿leaps to the eye¿¿¿ — here by a situation which is felt to be comical and not in full correspondence with reality — is realised by the photomontage. The complainant sits enthroned, lanky and unconcerned, on the big ¿¿¿T¿¿¿. This is a graphic expression of the critical message of the report about the complainant, which is covered by freedom of opinion. But in so far as the complainant’s face is changed by technical manipulation, this part of the graphic expression of the message acquires independent relevance to the personality.

24
aa) The photographic image of the head contains an incorrect message because of the technical manipulation, even if the complainant is still identifiable in spite of the manipulation. How far such an invasion needs to be accepted in the context of a satirical image also depends on whether the observer of the picture can recognise the manipulative alteration, and therefore definitely cannot come to the mistaken conclusion that the person depicted looked like that in reality. Recognisability of the distortion is for instance for the most part a characteristic of a caricature. But that is not the position here. The picture of the head used for the montage claims to be a photograph, and gives the reader no clue that the facial features have been manipulated. Nor does any such clue follow from the fact that the remainder of the image can clearly be recognised as having the character of fiction. This does not apply to the picture of the head.

25
bb) A photograph conveys information about the person photographed without the use of words. Photos suggest authenticity and observers of them assume that the person depicted looks like that in reality. But this assumption is not justified with a graphic manipulation which alters a person’s appearance and which can be effected today with relative simplicity by technical means. The holder of the right of personality admittedly has no right to be perceived by third parties only as he would like to see himself (references omitted), but he does have a right that a photographically constructed image of him should not be distorted by manipulation if it is made available to third parties without his consent. The message of the picture in any case becomes incorrect if the photo is altered beyond changes purely caused by the reproduction process and insignificant for the content of the message. Such manipulations affect the right of personality regardless of whether they are undertaken with a good intention or with an intent to harm and whether readers assess the alteration as advantageous or disadvantageous for the person represented. The assertion of facts which as a rule is conjured up by the pictorial image always becomes inappropriate if it goes beyond reality in relation to the person depicted.

26
cc) The untruthfulness of the message has effect on the scope of the protection which is given by freedom of opinion. Incorrect information, which cannot assist the possibility presupposed in constitutional law of accurate formation of opinion, is not an interest worthy of protection from the perspective of freedom of opinion (references omitted). This is also the position where photographic images are used in satirical contexts, if the manipulation cannot be recognised by the reader and he therefore cannot interpret the alteration as part of the distortion and defamiliarisation which are typical for satirical images and thereby classify them in a discerning way for the formation of his opinion.

27
c) The decision of the Bundesgerichtshof does not satisfy these constitutional law requirements. The Bundesgerichtshof takes into account as decisive factors that a satirical pictorial message must be grasped as a whole and that the complainant’s face on its own as a component of the picture was not a pictorial message to be regarded separately. It thereby fails to recognise the effect, which is significant in terms of the basic right, of a covert graphic manipulation in a situation in which the manipulated part of the picture is not relegated to the status of a ¿¿¿partial¿¿¿ or ¿¿¿subsidiary message¿¿¿ of the image, but has an independent message content which is detachable from it. It then needs an independent assessment from the perspective of protection of the personality.

28
The earlier instance courts have not conclusively elucidated whether in the present case a manipulation of the complainant’s facial features has occurred extending beyond technically unavoidable alterations, and whether it was recognisable to the reader. The complainant had submitted that there was a multiply graduated pictorial manipulation present. In reply to this the defendant has merely conceded that the photo of the complainant’s face which has been used was stretched in length by 5% for technical reasons relating to the photocollage. The Landgericht and the Oberlandesgericht have nevertheless assumed a deeply invasive manipulation of the picture originally used, and a serious alteration of the pictorial message to the complainant’s disadvantage. The Bundesgerichtshof was able to leave the legal classification of the alteration of the picture open on the basis of its legal view. Likewise it has not asked in conclusion whether the alterations are so trivial that they are only recognisable in the case of especially attentive scrutiny in comparison with the original photo of the complainant, and therefore could not harm the right of personality to an extent worth mentioning.

29
3. It cannot be excluded that the Bundesgerichtshof on considering the constitutional law standards explained above would have reached a different decision. The decision under challenge must therefore be quashed in accordance with ¿¿ 95 of the Federal Constitutional Court Act (BVerfGG) and referred back to the Bundesgerichtshof.

30
4. The decision about costs is based on ¿¿ 34 a para 2 of the Federal Constitutional Court Act.

31
No further reasoning will be provided.

32
The decision is unchallengeable.