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Case:
BGH VI ZR 373/02
Date:
09 December 2003
Translated by:
Raymond Youngs
Copyright:
Professor B. S. Markesinis

Facts:

The claimant demands that the defendant refrain from the publication and / or dissemination of aerial photographs of her property at M as well as directions for finding it.

The claimant is a well-known German television journalist and presenter. She has published pictures in two books and three magazines, which show the grounds of her finca at M, which is used by her as a holiday home. The property is in an isolated position in hilly countryside in a nature protection zone and is hard to find without directions.

The defendant carries on a press agency. He sells, amongst other things, aerial photographs of buildings and properties which belong to so-called prominent figures or are lived in by such. The defendant takes the photographs from a helicopter. He advertises the photographs with a photograph portfolio which shows the aerial photographs of the appropriate properties. A brief description of the locality and the buildings and directions for finding them with an outline map of the island are appended to these.

The location of the properties photographed is marked by arrows on the map. The defendant also offers the portfolio over the internet. There are two aerial photographs of the claimant's finca and the surrounding property areas in it, classified under the claimant's name.

The editorial department of the television journal TV-M purchased one of the photographs from the defendant and published it with a photograph of the claimant, mentioning her name and giving directions for finding the property and the marked outline map in its 11th issue in 1999. The publication was part of an article described as "Star Guide M" and "The secret addresses of the stars", in which the properties of further prominent figures were shown.

The claimant was entirely successful before the Landgericht in her claim for an injunction to prevent publication and dissemination of the aerial photographs mentioning her name and giving directions to the property. On the defendant's appeal the Kammergericht partly amended the judgment of the Landgericht and rejected the claim for an injunction in respect of publication and / or dissemination of the aerial photographs with the claimant's name. By their appeals in law (which have been admitted) both parties pursue their demands in so far as they have failed at first instance.

Grounds:

I

In the view of the appeal court, the claimant cannot demand an injunction under §§ 823 para 1 and 1004 para 1 of the BGB and Art 1 para 1 sentence 1 and Art 2 para 1 of the Basic Law to prevent publication and dissemination of the aerial photographs of her property with mention of her name. Admittedly an invasion has in principle taken place of the claimant's private sphere as a result of the publications. The private sphere was not limited to the internal part of the dwelling which is closed off from the eyes of third parties from the outset. It included all parts of the property which constituted the objective spatial focal point of a person's life as a whole, in so far as these areas are excluded from the gaze of third parties usually or as a result of the buildings or landscape. This is because the personality of the proprietor of the property can reflect itself not only in the internal part of a dwelling, but also in the other protected property areas. The publication of photographs of a property with the name of the owner or occupier therefore invaded that person's general right of personality in any case where the insight thus obtained into the private sphere of the third party was normally barred and not supported by the intention of the person affected. No one had to accept his private sphere being so to speak "spied out" by the existing obstacles being surmounted by appropriate aids (eg a telephoto lens, ladder or aeroplane).

Establishing an invasion of the general right of personality did not admittedly by itself provide a basis for the claimant's demand for an injunction. Because of the special nature of the general right of personality as a framework right, its scope had to be determined by balancing interests in the individual case with the interests worth protecting on the opposite side. This balancing with the defendant's right to free reporting (Art 5 para 1 sentences 1 and 2 of the Basic Law) made the invasion appear in the end to be lawful. Admittedly the public's interest in information in the report in question here did not in principle have more weight than the claimant's personality right, as the purpose of such a report was actually to invade the private sphere. But the claimant did not deserve protection because she herself had published photographs of parts of the grounds of the finca in the book "Socke und Konsorten" [Sock and Co: a book about the claimant's animals at the finca; Sock was a cockerel]. The claimant had partly satisfied the public's curiosity (awakened by the book, interviews and further publications of hers) by publishing or permitting the publication - and recently - photographs of herself, on the terrace of her house, at the pool and in the garden. A person who opened up his private sphere to the public in certain areas could not simultaneously rely on that private sphere being protected from the public. Even if the claimant had only released to the public photographs in which the property as such was not identifiable, she had exposed herself to the argument that she logically had not preserved her property from all pictorial reporting.

On the other hand, the defendant had to refrain from publication and dissemination of the directions to the claimant's house. This would unlawfully infringe her general right of personality in its manifestation as a right to self-determination of information (§§ 823 para 1 and 1004 para 1 of the BGB and Arts 1 para 1 sentence 1 and 2 para 1 of the Basic Law). The right to keep a private address secret outweighed the public's interest in information, even with absolute persons of contemporary history. This applied in any case when the dissemination of a private address - here in the form of directions to a property - merely served the purpose of making the person affected and his objective spatial private sphere accessible to the public. The possibility of a third party penetrating the claimant's private area could not be denied with publications of this kind and did not have to be accepted. In the present case the TV-M magazine in its description even challenged its readers to go and see the properties so long as the prominent figures were still resident there. The defendant had to accept that this was attributable to him. He was liable for the publication, even if he had merely communicated the directions to the investigating journalist of TV-M so that he would be in a position to find the property. In passing the information on, he had co-operated in its dissemination and publication. The claimant did not even have to tolerate this violation of her right on the ground that the location of the property was generally known and she had made the name of her country house public in her publications. Obviously the position would differ depending on whether individual tourists could find the house by personal investigations or whether the exact location would be revealed to a large section of the public.

II.

These considerations withstand examination in the appeals in law.

A. The claimant's appeal in law
The claimant has no claim against the defendant for an injunction to prevent publication or dissemination of the aerial photographs with a reference to her name.

1. The appeal court correctly assesses the defendant's conduct as an invasion of the general right of personality. The property was used by the claimant as a place for rest and recreation, and its outer area was also a part of the protected spatial area of her private sphere.

a) The appeal court assumes, in agreement with the view of this Senate, that the private sphere does not end at the front door of the house, even though it first of all includes the internal house area. For example, there is a private sphere which deserves protection in the same way outside the home area when someone has withdrawn to a place of local seclusion in which he intends to be on his own in a manner which is objectively recognisable (references omitted). Accordingly an enclosed property is to be regarded as part of the private sphere in any case where it gives the user the possibility of being free from public observation.

b) The protection of the private sphere does not cease to apply simply because passers-by can look in to parts of the property due to the lie of the land. For enclosed residential properties, the typically private character so far as third parties are concerned remains determined by the recognisable purpose of its use.

2. The classification of the property as a protected spatial area of the private sphere does not however say anything about whether or to what extent this area itself - apart from the holder of the basic right - is entitled to the basic right protection. The question arises whether the publication and dissemination of photographs of the property as such, with a reference to the claimant's name, intrude into her private sphere.

a) A violation of the right of personality does not as a rule occur when all that is at issue is photographing an external view of a property from a generally accessible position and the dissemination of these photographs, because the photographs only concern the area which is exposed to the outside anyway. Whether, as against this, the publication of photographs of enclosed grounds against the will of the proprietor of the property represents a violation of the personality can only be answered taking into consideration the actual circumstances of the individual case. Thus an area which only becomes a private sphere because someone is withdrawing to a place admittedly accessible to a limited public, but in the actual situation a place of seclusion (reference omitted), loses its character of privacy again if this special situation ends because eg the person concerned goes away or himself permits access to the public. On the other hand a home area which should always allow a possibility of retreat must be regarded differently.

b) In the circumstances of this case, an invasion of the claimant's private sphere has to be confirmed even if the photographs only show the property without persons. The appeal court correctly considers it to be decisive in the present case that the defendant has taken the pictures in order to publish and disseminate them with mention of the claimant's name, against her will. The defendant is thereby intruding into the private sphere created by the claimant there through the enclosure of her property, and besides this infringing her right to self-determination by revealing her personal circumstances (references omitted). This right not only protects from excessive investigation of personal data by the state, but it also assigns a correspondingly high rank on the level of civil law relationships to the need people have for protection against intrusions which make them "available" to the public against their will (references omitted).

c) That must be accepted in the circumstances of the case. The anonymity of the property is removed by the giving of the name. The pictures are linked to a person and acquire an additional information content. This gives rise to the danger that the suitability of the property as a place of retreat for the claimant will be impaired. Besides this, the information gives to a broad public insight into areas of life which are otherwise known at the most to persons who look at the property when walking or driving past it and have also discovered that the claimant lives there.

In addition to this the defendant, who takes photographs with a helicopter from freely chosen positions, breaches the visual protection appropriate for securing privacy of the property, and thereby provides access in a certain way against the will of the person entitled. In principle no one should have to accept his private sphere being so to speak "spied out" against his will by surmounting existing obstacles or with appropriate aids (eg telephoto lens, ladder or aeroplane) in order to make a business out of it, and to make the insights so obtained available to third parties for payment. The appeal court correctly assesses the defendant's behaviour in these circumstances as an invasion of the private sphere.

3. The appeal court considered it necessary (in a way which is free from legal objections) to decide the claim on the basis of a balancing of the claimant's general right of personality, protected in constitutional law under Art 2 para 1 in combination with Art 1 para 1 of the Basic Law, with the defendant's right of press freedom under Art 5 para 1 of the Basic Law which likewise enjoys constitutional rank. This is because, due to the special nature of the right of personality as a framework right, its scope is not absolutely fixed, but it must in principle first be determined by a balancing of interests with the interests deserving protection on the other side. The balancing must be undertaken within the framework of the features capable of interpretation of the civil law definition provisions, and has to take into consideration the special circumstances of the case (references omitted).

a) The appeal court correctly proceeds on the basis that the protection of the private sphere always - and in private law too - has special importance as a constitutionally guaranteed basic right (references omitted) and this right belongs to everyone, even to a person of contemporary history (reference omitted).

b) It has further correctly assumed that the defendant is acting within the framework of the basic right to press freedom (Art 5 para 1 sentence 2 of the Basic Law) which guarantees the institutional independence of the press from the obtaining of information to the dissemination of news and opinion (references omitted). Even if the reporting promoted by the defendant about the properties of so-called prominent figures primarily satisfies the need of a more or less broad section of the readership for superficial entertainment, it is in principle included in the basic right to press freedom (references omitted). This is because press freedom applies for all press publications without regard to their value (references omitted). The value of the information admittedly plays a role in the balancing of the interests of both sides. The greater the value of the information for the public, the more the protected interest of the person about whom the information is given must give way to the public's information interests. Conversely, however, the protection of the personality of the person affected weighs more heavily as the information value for the general public decreases (references omitted).

c) The appeal court correctly assumes that a broad interest exists in aerial photographs of this kind which is appropriately satisfied by the media. Furthermore, verbal and pictorial reports about the attractive holiday island of M met with considerable interest, firstly because they relate to the island itself, but secondly because they also relate to very well known people, their habits of life and their living conditions on the island. The claimant also, as a prominent television journalist, attracts the interest of a broad section of the public. The appeal in law does not question all that. Even if this interest cannot be classified as having special merit and, in particular, not as concerning any important interests for the general public, the need for its satisfaction cannot be excluded from the outset from the protected area of press freedom - which is simply constitutive for the free democratic basic order - as unjustified. Particularly in relation to the press, the need for limitation of freedom of reporting must be convincingly proved (references omitted). Entertainment articles can result in formation of opinion; they can even in some circumstances stimulate and influence it more permanently than technical information. Entertainment in the press is for this reason - measured by the protected aim of press freedom - not inconsequential or even without value (reference omitted).

d) This viewpoint acquires substantial importance in the balancing of the basic rights positions affected. Taken as a whole, the balancing leads to the conclusion that, in the special circumstances of the case in question, the basic right under Art 5 para 1 sentences 1 and 2 of the Basic Law outweighs the claimant's protected interest. As the core area of the private sphere is not affected nor its objective spatial protected area permanently violated, the intensity of the invasion of the claimant's private sphere is small. In this respect the claimant has not alleged that she has been disturbed in the use of her property because of the publication of the pictures in dispute, nor that the dissemination of the information that she uses an attractive holiday home on M had brought negative consequences with it. In this state of affairs it is not evident that her justified interest in an undisturbed private sphere was harmed in its substance by the publication in question. Additionally, because of the subject-matter of the pictures, it is not a question of an invasion of the core area of the private sphere, but only in its border zone. Things are typically classified as private when public discussion or display of them is regarded as improper, revealing them is felt to be embarrassing or provokes adverse reactions by other people, and they are in any case not intended for the public (reference omitted). In contrast to this, it is a question here of photographs which do not show people, but which merely depict buildings and pieces of land in the most impersonal fashion imaginable, and which therefore exhibit a high degree of abstraction. Besides this, they do not enable the property to be found and directions are needed for this (on this, see B below).

e) There being therefore, simply because of the intensity, no serious invasion of the claimant's right of personality, the invasion is further reduced by the fact that the claimant herself has revealed to a wide public her circumstances of life and residence on M by her own publications.

(1) What this senate has stated in this respect in parallel proceedings (reference omitted) in its judgment of today must also apply to the present case. The claimant there had partly accepted and partly even approved a comprehensive written and pictorial report in German newspapers and news magazines as well as in the book "M - Exclusive" about her holiday home on the island and her life there. As the aerial photographs described above scarcely added anything new in the case, the balancing between the basic rights under Arts 1 and 2 and under Art 5 of the Basic Law results in priority for the latter.

(2) This is even more applicable for the present case in which the claimant herself has revealed by publications to a wide public the part of her private sphere for which she demands protection in her claim. The information that she uses a finca on M as a holiday home can be discovered from the book she wrote called "Socke und Konsorten", which also contains photographs of her on the terrace of the house, at the pool and in the garden. The objection of the appeal in law on this point that the appeal court proceeded on the basis of corresponding advance publications by the claimant without a sufficient factual basis is unsuccessful. The book is in the files and was present for visual inspection in the oral hearing. In these circumstances, it is obvious that in this case also the basic right under Art 5 of the Basic Law deserves priority over the claimant's right of personality which was not substantially infringed (reference omitted).

B. The defendant's appeal in law

The defendant's appeal in law is also unsuccessful. The appeal court has correctly affirmed that the claimant has a claim against the defendant to an injunction preventing publication or dissemination of directions to the claimant's house under §§ 823 para 1 and 1004 para 1 of the BGB and Arts 1 para 1 sentence 1 and 2 para 1 of the Basic Law.

1. By publishing these directions, the claimant's right to self-determination of information, as a manifestation of her claim to protection of her private sphere, is infringed (references omitted). Even this right is not guaranteed without limits. The individual does not have an absolute and unlimited dominion over "his" data, because he develops his personality within the social community. In this society the information, even so far as it is related to individuals, represents a part of the social reality which cannot be exclusively attached to the person affected alone. A decision has to be made about the state of tension between the individual and society in the sense of the relationship and the subjection of the individual to society (references omitted).

2. The appeal court has correctly assumed that the defendant by passing on the directions to the property to the magazine TV-M has contributed to making its exact situation known to a broad section of the public and thereby making it substantially more easily accessible to an indeterminate class of persons.

Admittedly, according to the case law of this senate the publication of name, address and telephone number in the individual case does not intrude illegally into the private sphere in so far as these data related to the individual are evident to everyone without difficulty from generally accessible sources, like, for example, the telephone book. They therefore do not represent "sensitive" data (references omitted).

But in the present case this prerequisite is not fulfilled, simply because there is no generally accessible collection of route descriptions, and a route description goes far beyond the giving of an address of the kind found in telephone books.

3. The claimant does not have to accept the violation of her right to self-determination of information on the grounds of public welfare or having regard to the general interest in information either. The appeal court correctly assumes that the publication of the directions only serves the purpose of making the claimant accessible to the public. However, the public revelation of the exact situation of the finca exposes the claimant to an increased risk of third parties gaining access to her private sphere.

The defendant's appeal in law unsuccessfully raises the objection that the property has already been made identifiable to the general public by putting up a name plate and because of the communication of the name "Cassis" for marketing purposes in the claimant's books. It is not possible to proceed on the basis of a publication by the claimant with an information content comparable to that of directions to the property. According to the findings of the appeal court, which are not attacked by the appeal in law, the exact situation of the property cannot be discovered from the extracts from the claimant's books or the press publications of April 2002 in such a way that it would be possible to find the property without further investigations.

4. Finally, the objection of the appeal in law to the legal opinion of the appeal court that the defendant was responsible as a "disturber" for the publication of directions to the property is unsuccessful.

a) Even if the editorial department acted on their own authority in connection with the publication, publication of the directions to the property and thereby the infringement of the claimant's right was in any case facilitated by the passing on of the directions to the property by the defendant. On the basis of all the circumstances of the dispatch of the material to the editorial department of TV-M together with the photographs of the finca for the purpose of publication, it was natural that the directions to it would likewise be published. It was therefore of no importance (as the appeal court correctly states) that the defendant - as he claims - had communicated the precise directions to the property to the investigating journalist of TV-M merely to ensure that he would be in a position to find the property. As the defendant took no precautions of any kind to prevent the publication, in spite of the danger involved in doing so, there were grounds for fearing publication and the infringement of the right associated with it.

b) If several people take part in an infringement - as in the present case - the question whether a claim to an injunction exists does not in principle depend on the type and extent of the contribution to the act or in the interest of the individual participant in the effecting of the disturbance (references omitted). The claim to an injunction because of a press publication is admittedly directed in principle against the publisher of the publication complained of as well as against the responsible editors (references omitted). But anyone who has in any way deliberately collaborated in and adequately caused the bringing about of the unlawful infringement is also liable as a joint disturber. This is in principle independent of the type and scope of his own contribution to the act. In this connection the support or exploitation of the act of a third party acting on his own responsibility suffices as collaboration in so far as the defendant had the legal possibility of preventing this act. It is also not inconsistent with the demand for a negatory injunction that the defendant lacked knowledge of the circumstances which formed the basis of the fulfilment of the definition and the illegality. Likewise fault is not necessary (references omitted).

c) Contrary to the view of the appeal in law, the defendant's responsibility is accordingly not removed just because the publication could not be attributed to him in liability law. The appeal court has correctly confirmed the adequate connection between the passing on of the directions to the property and their publication. The latter was a natural consequence according to the usual course of things, after the defendant took no effective precautions against the publication which he might have feared eg in the form of an express contractual individual agreement. It is doubtful whether the general allusion in the leaflets, to which the defendant refers, that the reproduction even of extracts without written authority was not permitted, is directed against the customer who obtains the material from the defendant on the basis of a contract. In any case, he is completely unequipped - as the present case shows - to prevent the publication.

III.

For these reasons, both appeals in law must be rejected.

The costs decision is based on §§ 97 para 1, 92 para 1 of the Civil Procedure Code.

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