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Case:
Bundesverfassungsgerichts (First Division) 1 BvR 653/96
Date:
15 December 1999
Judges:
Professor Basil Markesinis
Copyright:
Raymond Youngs

Summary:

1. The private sphere protected by the general right of personality in Art 2 para 1 in combination with Art 1 para 1 of the Basic Law is not limited to the home. The individual must in principle have the opportunity of moving around in other places which are obviously secluded without being pestered by press photographers.

2. The general right of personality is not guaranteed in the interest of commercialisation of that personality. The protection of the private sphere from the taking of pictures takes second place insofar as someone shows himself to be in agreement with certain material usually regarded as private being made public.

3. The protective content of the general right of personality of parents or a parent is strengthened by Art 6 paras 1 and 2 of the Basic Law, insofar as it concerns publication of pictures which have as their object specific parental attention to children.

4. The guarantee of press freedom contained in Art 5 para 1 sentence 2 of the Basic Law includes publications and contributions in the nature of entertainment as well as their illustrations. This also applies in principle to the publication of pictures which show people in public life in everyday or private contexts.

Judgment

The judgments of the Bundesgerichtshof of the 19th December 1995 - VI ZR 15/95 -, of the Hanseatic Oberlandesgericht of Hamburg of the 8th December 1994 - 3 U 64/94 - and of the Landgericht of Hamburg of the 4th February 1994 - 324 O 537/93 - infringe the complainant's basic right under Article 2 paragraph 1 in combination with Article 1 paragraph 1 of the Basic Law insofar as her claim in relation to three pictures published in the Illustrated "Bunte" no. 32 of the 5th August 1993 and no. 34 of the 19th August 1993 which show the complainant with her children was refused. In this respect and in relation to the decision about costs the judgment of the Bundesgerichtshof is quashed and the case referred back to it.

In other respects the constitutional complaint is rejected.

The German Federal Republic must reimburse the complainant for a third of the necessary expenses.

Reasons

A.

The constitutional complaint concerns the publication of photographs from the everyday and private lives of prominent figures.

I.

1. The defendant in the original proceedings, Burda GmbH, publishes the magazines "Freizeit Revue" and "Bunte". In these magazines, photographs of the complainant Princess Caroline of Monaco were published in various articles. She claimed an injunction to prevent publication of these.

The subject of the original proceedings included at first five photos which were printed in the "Freizeit Revue" no. 30 of the 22nd July 1993. The complainant could be seen in them together with the actor Vincent Lindon at a table in a garden café in Saint-Rémy (France) in the evening. The photos are advertised on the title page as "The tenderest photos of her romance with Vincent" and show Vincent Lindon kissing the complainant's hand. As the complainant was successful in obtaining from the Bundesgerichtshof an injunction to prevent future publication of these photos, they are not the subject of the constitutional complaint.

The defendant then published in the Illustrated "Bunte" no. 32 of the 5th August 1993 the article "Caroline: I don't believe that I can be the ideal wife for a man", in which parts (mostly in indirect speech) of a book about the complainant which appeared in Spain are reproduced. Several photos illustrated the article. A photo on p.88 shows the complainant riding a horse in a paddock. No other people can be seen in the picture. It has the caption: "Caroline and melancholy. Her life is a novel with countless misfortunes, says the author, Roig". P.89 contains a photo of the complainant with her children Pierre and Andrea with the caption "Caroline with Pierre and Andrea, her children". In the photo, three people are visible in the foreground; in the background there are vehicles. The complainant is wearing sunglasses.

In no.34 of the Illustrated "Bunte" of the 19th August 1993, an article under the title "Simple Happiness" appeared on pp. 44 to 52 with several photos. On the first page of the article, the complainant can be seen together with her daughter in a canoe, in a close up. The accompanying text to the side states: "It is a hot day this summer. Princess Caroline paddles with her daughter on the Sorgues. This is a small river not far from St-Rémy, the village in Provence where Caroline lives. From New York to London, the rich and beautiful whisper about the Caroline style. A canoe instead of a yacht. A sandwich instead of caviar".

A further photo shows her with a basket slung round her on her way to the market. It includes an accompanying text in small print. "Housewife Caroline Casiraghi. She loves doing the shopping herself". The accompanying text at the side in large print states: "On Wednesday, it's market day. The Caroline style is copied world-wide. Her strap sandals which she wears to the flower market, her pareo which she wears as a skirt". In other photos - not the subject of challenge - within this frame, there are two shops in which the complainant allegedly make purchases, the bistro in which she usually drinks coffee and her country house.

The next photo objected to shows the complainant and the actor Vincent Lindon sitting side by side in a guest house, with other guests around them. The text in small print in the right hand lower corner says: "Every Saturday evening table no.3 here on the right of the entrance is reserved for Caroline". The accompanying text in large print states: "In the evenings, people sit in the "Sous les Micocouliers" and drink the light red summer wine. Caroline and Vincent Lindon are guests like the baker, the olive farmer or Father Philippe of the Church of St Martin".

A photo also shows the complainant cycling alone on a track across the fields. The text in small print for this photo says: "Caroline cycles home. Her mas (house or farm in southern France) lies at the end of the bumpy track, the 'Chemin du Pilou'". It is supplemented by the larger accompanying text: "The end of loneliness approaches. The Caroline style attracts the beautiful and the rich. Lady Di should have instructed an estate agent to find a property for her. Julio Iglesias is also looking".

The photo on p.51 shows the complainant together with Vincent Lindon, her son Pierre and another child. It is a close up and shows these persons from behind or from the side as they turn to the child. The text in small print says: "Caroline's youngest, Pierre, 6, has bumped himself. Vincent and Caroline comfort him".

The last photo shows the complainant wearing sunglasses with a female companion in the market by a flower stall. The text accompanying the photo states: "Caroline's bodyguard is a woman. She even looks like the princess. They mostly go to the market together".

2. The determining factor for the assessment of these photos by the civil courts was §§ 22 and 23 of the Statute as to Copyright in Works of Art and Photography of the 9th January 1907 ([reference omitted]; from now called the Kunsturhebergesetz - KUG). These provisions state as follows:

§ 22
Pictures of people can only be disseminated or displayed publicly with the consent of the persons portrayed. In cases of doubt, consent is to taken as having been given if the person portrayed received a payment for letting himself be portrayed. After the death of the person portrayed, the consent of the relatives of the person portrayed is needed until 10 years have elapsed...

§ 23 (1) The following may be disseminated and displayed without the consent necessary in accordance with § 22:
1. Pictures of people from the realm of contemporary history;
2. Pictures in which the persons only appear as accessories near a landscape or other locality;
3. Pictures of meetings, processions and similar events in which the persons depicted have taken part;
4. Pictures of people which are not made to order insofar as the dissemination or display serves a higher interest of art.

(2) The authorisation does not however extend to dissemination or display which violates a justified interest of the person portrayed or, if he has died, his relatives.a) The Landgericht allowed the claim insofar as it concerned the publication of the photos in magazines sold in France. In other respects it rejected the claim.

...

b) The Oberlandesgericht rejected the appeal of the complainant, revised the judgment at first instance on the cross appeal of the defendant and rejected the claim insofar as the Landgericht had allowed it (reference omitted).

3. The Bundesgerichtshof quashed the judgment of the Oberlandesgericht in part, and revised the judgment of the Landgericht in part, so that the defendant in the original proceedings was ordered to refrain from fresh publication of the photographs printed in the magazine "Freizeit Revue" with the picture of the complainant. The remainder of the appeal in law was rejected.

...

 

II

The complainant contests all the civil court decisions, insofar as future dissemination of the photos was not forbidden, on the ground that they are violations of Art 2 para 1 in combination with Art 1 para 1 of the Basic Law, in particular of the right to pictures of oneself and the right to respect for the private sphere.

...

B.

The constitutional complaint is in part well founded.

I.

The judgments under challenge affect the complainant's general right of personality under Art 2 para 1 in combination with Art 1 para 1 of the Basic Law.

1. The protection of the general right of personality extends to pictures of a person by third parties.

a) The basic right has the task of guaranteeing elements of the personality which are not the object of the special guarantees of freedom in the Basic Law but which are just as important as these in their constitutive significance for the personality (references omitted). There is a need for such a guarantee to close up the gaps, particularly in view of new types of danger to the development of the personality which mostly arise with scientific and technical progress (references omitted). The assignment of an actual desire for legal protection to the different aspects of the right of personality must therefore be made with the danger to the personality to be deduced from the actual circumstances of the case primarily in mind.

b) Authority to publish photographs showing persons in private or every day contexts is to be measured by the right to pictures of oneself and the guarantee of the private sphere which are concrete forms of the general right of personality.

aa) Contrary to the view of the complainant, Art 2 para 1 in combination with Art 1 para 1 of the Basic Law does not contain a general and comprehensive right of control over pictures of oneself. Insofar as she seeks to deduce such a right from earlier decisions of the Federal Constitutional Court (references omitted), this is an incorrect generalisation of the protective content of the basic right guarantee which is formulated in the light of the actual cases. As the Federal Constitutional Court has already emphasised many times, the general right of personality does not give the individual a claim only to be portrayed by others in the way in which he sees himself or wants to be seen (references omitted). A wide protection of this kind would not only exceed the objective of avoiding endangering the development of the personality, but would also make deep inroads into the area of freedom of third parties.

The complainant also does not find any fault with the way she is portrayed in the disputed photos, which the civil courts have regarded as in every respect favourable. She is much more concerned with whether photographs of her ought to be taken and published at all, when she was not acting in an official function but in a private capacity or every day context in public. The answer to this question is to be deduced from those expressions of the general right of personality which protect the right to pictures of oneself and the private sphere.

bb) The right to pictures of oneself (references omitted) guarantees to the individual the opportunity to influence and make decisions about the making and use of photographs or drawings of himself by others. Whether these show the individual in a private or public context does not in principle play any role here. The need for protection arises instead principally from the possibility of removing the image of a person in a certain situation from this situation, recording it as data, and reproducing it at any time before an enormous number of people. (This is similar to the "right to one's own words", and the right to pictures of oneself entered the constitutional case law following on from that right). This possibility has grown even further through progress in photographic technology, which permits the taking of pictures from a great distance (recently even from satellite) and in bad light.

With the help of reproduction technology, the kind of public before which the individual appears can be changed. In particular, the visible public in which one moves in normal public appearances can be replaced by the media public. Thus for instance the public in court, ie the audience present in the court room, differs from the media public produced by television, because the audience experiences events itself and can itself be seen and assessed by the parties to the proceedings (reference omitted). Besides this, the message conveyed by pictorial statements can change, or even be intentionally changed, with the change of the context in which a picture is reproduced.

Out of the different protective aspects of the right to pictures of oneself, though, the only one which is significant here is the one which concerns the production of certain photos and conveying them to a larger public. It is not a question of manipulated photos or falsifications by a change of context, which is the primary object of the protection. On the contrary, the complainant takes as a basis the fact that the photos which are the subject of the dispute (and the accompanying article, which is likewise relevant to their content) reproduce situations from her life accurately and in a manner in which observers who were present could have seen them. She merely does not wish these situations to be recorded in pictorial form and presented to a wider public, because in her opinion they belong to her private sphere.

cc) In contrast to the right to pictures of oneself, the protection of the private sphere (which is also rooted in the general personality right) does not refer specially to pictures but is determined thematically and spatially. It includes on the one hand matters which are typically classified as "private" because of their information content, because public discussion or display of them is regarded as improper, or because revelation of them is felt to be embarrassing or produces adverse reactions from the surrounding world, as is for instance the case with soliloquies in diaries (reference omitted), confidential communications between married couples (reference omitted), the realm of sexuality (reference omitted), socially deviant behaviour (reference omitted) or illnesses (reference omitted). If there is no protection from the desire of others for knowledge here, soliloquies, uninhibited communications between close relations, sexual development or the obtaining of medical help would be interfered with or made impossible even though conduct protected by a basic right was involved.

On the other hand the protection extends to a spatial area in which the individual can sort himself out, unwind or even let go (reference omitted). It is true that this area also gives the opportunity to behave in a manner which is not intended for the public and for it to be seen or portrayed by outsiders would be embarrassing or disadvantageous for the person concerned. But in essence it is a question of a space in which the individual can be free from public observation and therefore from the self control which this imposes, but without him necessarily behaving differently there than in public. If such areas of retreat no longer existed, the individual could be psychologically overtaxed, because he would always have to be paying attention to the effect he has on others and whether he is behaving correctly. He would lack periods for being alone and adjusting which are necessary for the development of the personality and without which it would suffer lasting damage.

Such a need for protection also exists for people who are subject to special public attention because of their rank or reputation, their office or influence, or their capabilities or actions. A person who, whether willingly or unwillingly, has become a figure in public life does not thereby lose the right to a private sphere which remains concealed from the eyes of the public. This also applies for democratically elected office holders, who admittedly are publicly accountable for the conduct of their office (and must put up with public attention in this area), but not for their private lives in so far as these do not affect the conduct of their office.

The home is generally recognised as constituting such a protected sphere. But because of the reference to the development of the personality, the area of retreat cannot from the outset be limited to it. This is so because the functions which it serves are only fulfilled if it does not end at the walls of the house or the boundaries of the garden. The free development of the personality would be substantially hindered if the individual could only escape from public curiosity in his own house. Necessary relaxation from a public which is marked by the pressure of functions and the presence of the media is to be obtained in many cases only in the seclusion of a natural environment, perhaps in a holiday resort. The individual must therefore in principle be able also to move in open but secluded countryside or in places which are clearly secluded from the general public in a manner free from public observation. That applies in relation to photographic techniques which surmount the spatial seclusion without the person affected being able to notice this.

It cannot be determined in a general and abstract manner where the boundaries of the protected private sphere run outside the house. They can only be determined on the basis of the nature of the place to which the person affected goes. The decisive factor is whether the individual finds or creates a situation in which he may reasonably (and therefore in a manner recognisable to third parties) proceed on the basis that he is not exposed to the eyes of the public.

Whether the prerequisites for seclusion are fulfilled can only be assessed in the situation in question. The individual can in one and the same place justifiably feel himself to be unobserved at times and not at other times. Being in an enclosed area also definitely does not always equate with seclusion. As the question is whether the individual may reasonably expect to be unobserved or whether he has gone to places where he will be in the public eye, seclusion, which is the prerequisite for protection of the private sphere outside one's own home, may also be lacking in enclosed areas.

Places in which the individual finds himself amongst many people lack from the outset the prerequisites for private sphere protection in the sense of Art 2 para 1 in combination with Art 1 para 1 of the Basic Law. They cannot fulfill the need for retreat and therefore do not warrant the basic right protection which this need serves on the grounds of development of the personality. The individual also cannot define such places as part of his private sphere by, for instance, conduct which would typically not be exhibited publicly. It is not his conduct, either alone or with others, which constitutes the private sphere, but the objective facts about the locality at the time in question. If he therefore behaves as if he was not being observed, in places which do not have the characteristics of seclusion, he will himself remove the need for protection for types of behaviour which do not in themselves concern the public.

The protection of the private sphere from public attention also does not apply when the individual himself indicates his agreement with certain matters, which usually count as private, being made public, for instance by concluding exclusive contracts about reporting on his private sphere. The protection of the private sphere in constitutional law under Art 2 para 1 in combination with Art 1 para 1 of the Basic Law is not guaranteed in the interests of a commercialisation of the personality. Certainly no-one is prevented from such exploiting of private areas. But he cannot simultaneously appeal for the protection of the private sphere which is concealed from the public. The expectation that the outside world will not, or will only to a limited extent, take note of matters or types of behaviour in an area which has the function of a retreat must therefore be expressed in a manner which is consistent and covers situations comprehensively. That also applies for the case where the decision to allow or to accept the reporting of certain events relating to one's own private sphere is made retrospective.

dd) The Federal Constitutional Court has not yet decided what the protection of the private sphere means for family relationships between parents and children. But it is recognised that children need special protection because they must first develop into autonomous persons (references omitted). This need for protection also exists in view of the dangers resulting from the interest of the media and users of the media in portrayal of children. This can disturb the development of their personalities more severely than those of adults. The area in which children feel themselves free from public observation and may develop must therefore be more comprehensively protected than that of adult persons.

Parents are primarily responsible for the development of the personalities of children. Insofar as upbringing depends on undisturbed relationships with children, the special basic right protection of children does not merely have a reflexive effect in favour of the father and the mother (references omitted). Instead specifically parental turning attention to the children falls in principle within the protective area of Art 2 para 1 in combination with Art 1 para 1 of the Basic Law. The protective content of the general right of personality is then strengthened by Art 6 paras 1 and 2 of the Basic Law which puts the state under a duty to secure those conditions of life for children which are necessary for their healthy development, and to which, in particular, parental care belongs (references omitted).

How the strengthening of protection of the personality by Art 6 of the Basic Law should take effect in detail cannot be generally and abstractly determined. Certainly there will as a rule be no need for protection if parents deliberately enter the public arena with their children, for instance by participating together in public events or even taking a position in the centre of such events. In this respect they lay themselves open to the conditions of public appearances. In other respects the protection of the general right of personality can also however apply in principle in favour of specific parent-child relationships where the prerequisites for local seclusion are absent.

2 The decisions under challenge interfere with the complainant's general right of personality. As the pictures enjoy the protection of this basic right, the judicial finding that they may be published against her will curtails the protection which she can claim the courts should respect even in private law disputes (see BVerfGE 7, 198 [207]).

II.

The judgments under challenge do not completely fulfill the requirements of Art 2 para 1 in combination with Art 1 para 1 of the Basic Law.

1. The provisions of §§ 22 and 23 of the KUG on which the civil courts have based their decisionsare certainly reconcilable with the Basic Law.

According to Art 2 para 1 of the Basic Law, the general right of personality is only guaranteed within the framework of the constitutional order. The provisions about the publication of photographs of persons in §§ 22 and 23 of the KUG are included in this. The regime goes back to a scandal (photographs of Bismarck on his deathbed [reference omitted]) and the ensuing legal and political debate (reference omitted) and seeks to establish an appropriate balance between regard for the personality and the interests of the general publicin information (reference omitted).

According to § 22 sentence 1 of the KUG, pictures may only be disseminated or publicly displayed with the consent of the person portrayed. § 23 (1) of the KUG exempts, amongst other things, pictures from the realm of contemporary history (no. 1) from this principle. However, according to § 23 (2) of the KUG, this does not apply for a dissemination by which a justified interest of the person portrayed is violated. By this graduated concept of protection, the regime takes sufficient account of the need for protection of the person portrayed as well as of the public's wishes for information and the interests of the media who satisfy these wishes. That has already been established by theFederal Constitutional Court (reference omitted).

The view of the defendant that the regime contravenes the freedom of the press, because it amounts to a ban with a proviso for permission, gives no cause to assess the matter differently. There is no such ban, simply because the norms merely balance different legally protected interests of private persons. The regime here does not give a one-sided preference to protection of the personality. Admittedly it takes account primarily of the need for protection of the person portrayed at the first and third stages (§ 22 sentence 1 and § 23 (2) of the KUG). But the interests of press freedom (and the freedom to form opinions which lies behind this) come into play sufficiently at the second stage (§ 23 (1) of the KUG). Likewise it offers with its open formulations sufficient room for an interpretation and application which is in accordance with the basicrights.

2. The interpretation and application of the provisions do not however satisfy the requirements of the basic requirements in every respect.

a) The interpretation and application of provisions of the civil law which are in accordance with the constitution is a matter for the civil courts. They must however, in this connection, have regard to the meaning and scope of the basic rights affected by their decisions, in order that the significance of those rights in prescribing values is preserved even at the level of application of the law (see BVerfGE 7, 198; constant case law). For this purpose a balancing is necessary between the conflicting protective interests under the basic rights. This is to be undertaken within the framework of the features of the civil law provisions which are capable of being interpreted and has to take into consideration the special circumstances of the case (references omitted). But as the legal dispute remains, in spite of the basic right influence, a private law one, and finds its solution in private law (interpreted as guided by the basic rights) the Federal Constitutional Court is limited to examining whether the civil courts have had sufficient regard to the basic right influence (reference omitted). On the other hand, it is not the business of the Federal Constitutional Court to dictate to the civil courts how they have to decide the case in question in its outcome (reference omitted).

A violation of the basic rights will only leads to objection to the decisions under challenge if the fact that basic rights were to be complied with in interpreting and applying provisions of private law which were in conformity with the Constitution has been overlooked; or if the protected area of the basic rights to be complied with has been determined incorrectly or imperfectly or their weight has been incorrectly assessed so that the balancing of the legal positions on both sides within the framework of the private law regime suffers as a result (references omitted) and the decision is based on this mistake.

b) In the present case, not only is the general right of personality but also the freedom of the press guaranteed in Art 5 para 1 sentence 2 of the Basic law (which is likewise affected by these provisions) to be taken into consideration in interpreting and applying §§ 22 and 23 of the KUG.

In the centre of the basic right guarantee of freedom of the press is the right freely to determine the type, orientation, content and form of a publication (references omitted). Included in this is the decision whether and how a publication is to be illustrated. The protection is not limited to certain subjects for illustration. It also includes the portrayal of persons. The protection does not depend on the particular nature or the level of the publication or of the report in detail (references omitted). Every difference of this kind would amount in the end to assessment and control by state authorities which would contradict the essence of this basic right (reference omitted).

Press freedom serves the free, individual and public formation of opinion (reference omitted). This can only succeed under conditions of free reporting for which certain objects or methods of presentation are neither prescribed nor excluded. In particular, formation of opinion is not limited to the political realm. It is true that it is of special importance there in the interest of a functioning democracy. Yet the political formation of opinion is embedded in a comprehensive multiply interlinked communication process which cannot be split into relevant or irrelevant zones either from the point of view of personal development or from that of democratic government (reference omitted). The press must be able to decide according to journalistic criteria what it considers to be worthy of the public interest and what it does not.

The fact that the press has to fulfill a function of forming opinion does not exclude entertainment from the constitutional functional guarantee. Formation of opinion and entertainment are not antitheses. Even contributions of an entertaining kind can form opinions. They can in certain circumstances stimulate or influence the formation of opinion even more permanently than exclusively factual information. In addition a growing tendency can be observed in the media of removing the division between information and entertainment in relation to a publication as a whole as well as in the individual contributions and to disseminate information in an entertaining form or to mix it with entertainment ("infotainment"). Many readers consequently obtain the information which appears to them to be important or interesting from entertaining contributions (reference omitted).

But the reference to freedom of formation of opinion cannot be denied from the outset even to mere entertainment. It would be unbalanced to assume that entertainment merely satisfies the wish for diversion, relaxation, flight from reality and distraction. It can also convey images of reality and makes available subjects for conversation. Ongoing discussions and unifying events which refer to attitudes to life, stances about values and behaviour patterns can be linked into this. Entertainment in this respect fulfills important social functions (references omitted). Entertainment in the press, measured by the protective purpose of freedom of the press, is therefore not insignificant or even worthless and is also included in the basic right protection (reference omitted).

This also applies to news reports about people. Personalisation forms an important journalistic means for arousing attention. It awakens interest in problems in many cases for the first time, and creates the wish for factual information. Participation in events and situations is also mostly communicated by personalisation. Besides this, prominent people stand for certain value concepts and stances about life. They therefore provide many people with a means of orientation in relation to their plans for their own lives. They become crystallisation points for agreement or disapproval and fulfill the functions of a model or a contrast. The public interest in the most varied aspects of such persons' lives is based on this.

For persons in political life, such an interest on the part of the public has always been recognised as legitimate from the point of view of democratic transparency and control. It cannot however in principle be disputed for other people in public life. In this respect, description of people which is not confined to certain functions or events is in line with the tasks of the press and therefore likewise falls within the protected area of press freedom. Balancing against the conflicting rights of personality is needed to determine whether there is a serious and relevant discussion of questions which substantially concern the public or merely dissemination of private matters which only satisfy curiosity (reference omitted).

c) The judgement of the Bundesgerichtshof overwhelmingly satisfies constitutional law examination in the end result.

aa) There is no objection in constitutional law to the fact that the Bundesgerichtshof has determined the prerequisites of the definition in § 23 (1) no. 1 of the KUG according to the standard of the general public's interest in information; and on this basis has regarded publication of pictures of the complainant even outside her representative function in the principality of Monaco as permissible.

§ 23 (1) no. 1 of the KUG exempts the publication of pictures of people from the area of contemporary history from the requirement of consent in § 22 of the KUG. The provision according to its legislative intention (reference omitted) and according to the sense and purpose of its regime takes into consideration the general public's interest in information and the freedom of press. The interests of the public are therefore to be observed in the interpretation of the features of this definition. This is because pictures of people who are not important in terms of contemporary history may only be made freely available to the public, with the consent of the persons affected. The further feature contained in the definition in § 23 (2) of the KUG of the "justified interest", which is open to the influence of the basic right, only refers from the outset to persons of importance in terms of contemporary history and cannot consequently sufficiently uphold the interests of press freedom if these interests have been left out of consideration previously by the delimitation of that group of persons.

The concept of contemporary history in § 23 (1) no. 1 of the KUG does not, according to the standard of a judicial determination as to its content, only encompass for instance events of historical or political importance, but is determined by the interest of the public in information (reference omitted). This takes account of the meaning and scope of freedom of the press without cutting down disproportionately on protection of the personality. It is part of the core of freedom of the press and free formation of opinion that the press possesses sufficient leeway within the statutory boundaries within which to decide, according to its journalistic criteria, what the public interest claims; and that it will emerge in the process of formation of opinion what a matter of public interest is. Contributions in the form of entertainment are not, as has been explained, excepted from this.

There are further no grounds for objection to the fact that the Bundesgerichtshof also allocates to the "area of contemporary history" in accordance with § 23 (1) no.1 of the KUG pictures of persons who have not attracted the public interest to themselves by a certain isolated event of contemporary history but who attract general public attention on the basis of their status and importance, independently of individual events. In this connection, the increased importance which applies to photographic reporting today, in comparison to the time when the Artistic Copyright Act was enacted, is significant. The concept of an "absolute person of contemporary history", which is usually regarded as related in this connection by the case law and the literature, admittedly does not necessarily arise either from statute law or from the Constitution. It is understood by the Oberlandesgericht and the Bundesgerichtshof as shorthand for persons whose image the public finds worthy of attention because of the person portrayed. The concept is not however open to objection from the point of view of constitutional law as long as there is a balancing related to the individual case between the public's interest in information and the justified interests of the person portrayed.

The general right of personality does not require limitation of publications not needing consent to pictures which show persons of importance in the context of contemporary history exercising the function which they fulfill in society. A frequent characteristic of the public interest which such persons claim is that it does not only hold good for the exercise of the function in the narrower sense. Instead it can, because of the distinctive function and the effect which this has, extend to information about how these persons generally behave in public, and therefore outside their respective functions. The public has a justified interest in learning if such persons, who are often regarded as idols or examples, bring their functional and personal behaviour convincingly into line.

A limitation of publication of images to the function of a person of importance in contemporary history would on the other hand not take sufficient account of the public interest which such people justifiably arouse. It would also encourage a selective presentation which would prevent the public from making assessments which are necessary in respect of persons of socio-political life because of their role function as models and their influence. This does not open up to the press unlimited access to pictures of persons of contemporary history. Instead § 23 (2) of the KUG gives the courts sufficient opportunity to put into effect the protective requirements of Art 2 para 1 in combination with Art 1 para 1 of the Basic Law (reference omitted).

bb) In principle, the criteria which the Bundesgerichtshof has developed in interpretation of the feature of "justified interest" in the definition in § 23 (2) of the KUG are not open to objection in constitutional law.

According to the judgment under challenge, the private sphere which deserves protection (which the so-called absolute person of contemporary history is also entitled to) presupposes a secluded space into which someone has withdrawn in order to be on his own there in a manner recognisable to others; and in which, trusting in this seclusion, he behaves in a way in which he would not when in the public eye. The Bundesgerichtshof assumes a violation of §§ 22 and 23 of the KUG if pictures are published which have been taken of the person affected in such a situation secretly or by using surprise tactics.

The criterion of spatial seclusion takes account on the one hand of the purpose of the general right of personality of securing for the individual a sphere outside his own home in which he knows he will not to be under continual public observation. He does not therefore have to control his behaviour in view of this observation, but has the opportunity to relax and come to himself. On the other hand it does not restrict the freedom of the press excessively, because it does not completely remove the everyday and private life of persons of contemporary history from photographic reporting, but only makes it accessible for portrayal where it takes place in public. In a case of paramount public interest in receiving information, freedom of the press can even take precedence over the protection of the private sphere, according to this case law (references omitted).

The Bundesgerichtshof might also regard the behaviour of the individual in a certain situation as having the indicative effect that he obviously finds himself in a sphere of seclusion. It is true that protection from portrayal in this sphere does not only start when the person affected behaves in a way in which he would not when in the public eye. The spatial seclusion only fulfills its protective function for the development of the personality when it secures for the individual a place for relaxation regardless of his behaviour at the time, in which he does not have continually to expect the presence of photographers and cameramen. But it does not matter in the present case because according to the findings on which the Bundesgerichtshof based its decision, the first condition for protection of the private sphere is absent.

Finally there are no grounds for objection in constitutional law to the fact that, in the balancing exercise between the public interest in information and protection of the private sphere, importance is attached to the method of obtaining information (reference omitted). There are doubts however about whether the private sphere outside the home can only be violated by photography by secrecy or surprise. In the light of the function which this sphere should fulfill from a constitutional point of view and in the light of the fact that it often cannot be seen from a picture whether it has been taken secretly or by surprise, an impermissible invasion of the private sphere can be found even when these characteristics are not present. As the Bundesgerichtshof has however already denied that there was a sphere of seclusion for the disputed photographs, these doubts do not affect the outcome of its decision in this respect.

cc) The constitutional law requirements are not however fulfilled insofar as the decisions challenged have paid no attention to the fact that the complainant's protected position in relation to her right of personality is strengthened by Art 6 of the Basic Law in the case of family contact with her children.

dd) The following details result from this for the different photographs:
The decision of the Bundesgerichtshof in relation to those photographs which show the complainant on her way to the market, with a bodyguard at the market and with a companion in a well patronised café gives no cause for objection by the Constitutional Court. In the first two cases it is a question of places visited by the general public, which are not secluded. In the third case it is admittedly a question of an area which is spatially enclosed; but it is one in which the complainant is under the eyes of the members of the public who are present. For this reason the Bundesgerichtshof did not dispute the prohibition on dissemination of photos from the garden café which are admittedly a subject of the decisions challenged, but not of the constitutional complaint. The place which the complainant took there with her companion showed all the characteristics of seclusion. The fact that the photographs have obviously been taken from a great distance additionally points to the fact that the complainant might assume she was not exposed to the eyes of the public.

The decision is also not open to objection insofar as it concerns the photos in which the complainant is shown alone when riding and cycling. The Bundesgerichtshof on the basis of its view of the matter likewise attributed them not to the sphere of local seclusion but to the public sphere. That is not open to objection in constitutional law. The complainant herself counts the photographs as belonging to the secluded private sphere only because she let her wish be known to be alone. But according to the criteria which have been explained, it does not merely depend on her will.

On the other hand, the three photos in which the complainant is shown together with her children call for a renewed scrutiny from the constitutional law viewpoints which have been set out above. It cannot be ruled out that scrutiny on the basis of these standards will lead to another result in relation to individual photos or all of them. In this respect the judgment of the Bundesgerichtshof is to be quashed and the case referred back to it for a new decision.

d) As to the judgments of the Landgericht and the Oberlandesgericht which have been challenged, a violation of the basic right follows from the fact that they have limited the private sphere protected by Art 2 para 1 in combination with Art 1 para 1 of the Basic Law - admittedly in harmony with the case law at the time - to the area of the home. But it is not necessary to quash the decisions because the violation has been cured in this respect by the Bundesgerichtshof and the matter is in other respects been referred back to it.

Note:

The German law of privacy may well prove to be of great use to practitioners as they strive to develop the English law under the impetus of the Human Rights Act 1999. The utility of German law lies not only in its richness, but also in the careful way in which German courts have balanced on ad hoc basis the competing interests of privacy and speech. This has not led to a flood of litigation nor to any real or perceived restriction of speech rights. The development of the law in Germany is also the product of the courts and is only minimally based on the Code or statutory provisions so it is both comprehensible and transplantable into English law. Finally, the growth of German material in English means, as Lord Wilberforce recently put it, that "the argument of non-availability no longer holds". Further down in the same text Lord Wilberforce, one of England's most erudite judges, added: "The German approach shows us the way, avoiding the brutal simplicity of the First Amendment, to work out a balance between the right of free speech and the right of privacy..." These remarks come from his Foreword to Professor Basil Markesinis' Always on the Same Path. Essays on Foreign Law and Comparative Methodology, vol. II, Hart Publishing (2001), where one can find a comparative presentation of German law in chapters 7, 8, and 11. More information on such topics as the privacy of public figures can be found in Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis, Hart Publishing (1997) chapters 17, 18, and 19. The Law of privacy in England, France, Germany and Italy is also discussed (and rich further references frequently given) in chapters 1, 2, 3, 4, 5, and 7 of Protecting Privacy, (ed. by Basil S. Markesinis) OUP (1999). The cases reproduced in this site are annotated in B. S. Markesinis. The German Law of Obligations, vol. II, The Law of Torts: A Comparative Introduction, 4th edition by Hart Publishing (forthcoming in 2002).

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This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.