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Case:
BGH NJW 1996, 985 VI. Civil Senate (VI ZR 223/94)
Date:
12 December 1995
Translated by:
Mr Raymond Youngs
Copyright:
Professor B.S. Markesinis

The claimant was the eight year old son of Princess Caroline of Monaco. The defendant published a photo of him next to a car. He obtained an interim injunction forbidding further publication of this photo. The defendant then published a photo of him in another journal on the way to school. When warned, the defendant stated it would not publish this picture again. But it then published four photos in a third journal showing the claimant e.g. going to school and playing football. The claimant obtained an interim injunction in respect of three of these photos. Finally photos of the claimant appeared again in the first journal showing him on the beach. He claimed several things including compensation for distress (Schmerzensgeld) of at least 20,000 DM. He then lodged an appeal in law against rejection of his clim by the Landgericht and the Oberlandesgericht. This was only accepted in respect of the claim for compensation for distress.

Grounds:

I.

The appeal court rejected application 3 on the ground that the publication of the photos objected to could not be seen as a severe violation of the personality right under the prevailing circumstances. The photos showed the claimant in normal and everyday activities; they were completely harmless and could not even be described as disadvantageous. It was true that the defendant acted with a certain obstinacy, but assessing whether there was a severe violation of the personality right always depended on the actual infringement suffered. According to this, the infringement of the claimant's right did not have the necessary gravity for monetary compensation. Admittedly it had to be conceded in favour of the claimant that the defendant did not concern itself any further about his wishes. The publication of the photos was, however, only to serve an interest in information which was assumed by the defendant to exist on the part of its readership, which had become excited about the claimant’s special situation. It was true that the granting of compensation for distress - at as high a level as possible - could contribute to restraining the defendant from fresh violations of the right. But that was not the purpose of compensation for distress, which was only intended to secure fair compensation for the wrong suffered.

II.

These considerations do not stand up to legal examination.

1. a) Admittedly the appeal court correctly assumes that the defendant, by the publication of the photos of the claimant, has violated his right to his own image and thereby his general personality right. The right to one's own image is a special manifestation of the general personality right placed under special protection (§ 22 of the KUG). It follows from the nature of this right that the power of disposition over one's own image only belongs to the person depicted himself, as the holder of the right. Only he himself could assert whether, when and how he wants his image to be presented to third parties or to the public (consistent case law, see for instance Senate NJW-RR 1987, 231 and Senate, VersR 1993, 66 [67], each with further references). It is not, however, inconsistent with finding a violation of the right that the photos show the claimant in everyday activities and are completely "harmless".

b) Contrary to the view put forward in the reply to the appeal in law, this invasion by the defendant of the general personality right of the claimant is not justified by the fact that the claimant is a person of contemporary history in the sense of § 23 (1) no.1 of the KUG. This provision is an exception. It contains, having regard to the justified interest of the general public in a pictorial representation of persons who are part of public life, a limitation of the right to one's own image for pictures from the realm of contemporary history (BGHZ 20, 345 [349] = NJW 1956, 1554). The provision includes persons who have become the focus of public attention in such a way that the general public is to be granted an interest, justified by a genuine need for information, in a pictorial representation (see BGHZ 24, 200 [208] = NJW 1957, 1315). The claimant does not belong to such a group of persons. He is neither a part of public life, nor is he the focus of public attention in such a way that an interest justified by a need for information which is worthy of recognition in the publication of his picture should be found. Admittedly a certain interest may exist in the claimant's picture in the readership of the journals published by the defendant. But this interest does not justify a limitation of the general personality right of the claimant in accordance with § 23 (1) no. 1 of the KUG on the grounds set out above, even having regard to the legal position of the press under Art 5 para 1 of the Basic Law.

So far as the denial of the prerequisites of § 23 (1) no. 1 of the KUG is concerned, nothing is changed by the fact that the claimant is the son of Princess Caroline of Monaco, who herself is unquestionably an absolute person of contemporary history. It can be left undecided whether and - if so - under what prerequisites persons who belong to the milieu of an absolute person of contemporary history can themselves become persons of contemporary history by proximity to this person. The loss of rights for those affected which is associated with the application of § 23 (1) no. 1 of the KUG requires that the children of persons of contemporary history are only included in this circle of persons if they also appear in public as relatives or exercise public functions in the area of duty of their parents (see Damm/Kuner, Retractions, Injunctions and Compensation in relation to the Press and Broadcasting, 1991, p.44). These prerequisites are not present here. The claimant not only does not appear in public; he actually protects himself from the public paying special attention to him.

c) Further, the appeal court is correct in its view that not every violation of the general personality right - and therefore also not every violation of the right to one's own image - trigger a claim of the person affected to monetary compensation against the wrongdoer. Such a claim only comes into consideration if there is a grave infringement and the injury cannot be satisfactorily dealt with in another way. Whether a grave violation of the personality right which requires the payment of monetary compensation is present depends, in particular, on the importance and consequences of the invasion, and further on the cause and motive of the person acting, as well as on the degree of his fault (likewise consistent case law, see for instance Senate NJW-RR 1988, 733 = LM § 823 [Ah] BGB no. 98 = VersR 1988, 405 and BGHZ 128, 1ff. = NJW 1995, 861 = LM H. 5/1995 § 823 [Ah] BGB no. 119 = VersR 1995, 305 [308]).

2. In making the evaluating assessment as to whether a grave violation of the right of personality in the sense of this case law is present here, the appeal court has, however, not included in its considerations all the circumstances which give the case its character along with the importance which attaches to them.

It is true that it is to be conceded in favour of the appeal court that the mere publication of the photos in the case - considered in each case on their own – has not led to a violation of the claimant's rights with a degree of gravity which requires the granting of a claim to monetary compensation. However, the violation of the right which the defendant has committed against the claimant goes beyond the mere publication of the photos. It acquires its special gravity from the fact that the defendant, by the repeated publication of the photos of the claimant without his consent, has violated his right to his own image with particular obstinacy and, at least by the last publication, has disregarded the claimant's contrary wishes which were expressly stated to it. Besides the repeated breach of the law by the defendant which consisted in the publication of the photos without consent, there was also therefore a conscious and manifest disregard of the stated wishes of the claimant. Besides this, the defendant was acting for its own commercial advantage. This means that the violation of the right which the defendant has committed against the claimant is, through its intensity, the defendant's motive and the degree of its fault, to be assessed as so grave that it requires the granting of a claim to monetary compensation. The special nature of the violation of the right to one's own image consists in the fact that the victim - in contrast to other cases in which he can perhaps demand the retraction or the correction of a statement infringing his personality right - has at his disposal against such a violation of his right no other defensive option than a claim to monetary compensation. It follows from this that in such a case lower requirements are to be placed than in other cases of a violation of the right of personality on the granting of a claim to compensation.

The granting of such a claim does not, contrary to the view of the appeal court, fail because of the purpose of the claim. The appeal court sees the function of this claim too narrowly when it states that it is not orientated towards prevention but to fair compensation for the wrong suffered. The appeal court is obviously led to this consideration by an examination which takes account of compensation for pain and suffering (Schmerzensgeld), and therefore through an understanding which does not do justice to the nature and purpose of the claim to monetary compensation discussed here. With this claim, it is really a question not of compensation for pain and suffering under § 847 of the BGB but of a right which derives from the protective function of Arts. 1 and 2 para 1 of the Basic Law. The granting of monetary compensation which, in combination with these provisions, finds its basis in § 823 (1) of the BGB, is founded on the idea that, without such a claim, violations of the general right of personality would frequently remain without a sanction, with the consequence that the legal protection of the personality would atrophy. In contrast to the claim to compensation for pain and suffering, in a claim to monetary compensation for violation of the general right of personality, the angle of satisfaction of the victim is in the foreground. It should also serve prevention. (Senate BGHZ 128, 1ff. = NJW 1995, 861 = LM H. 5/1995 § 823 [Ah] BGB no. 119 and BGH NJW 1996, 984 (in this volume) = LM H. 4/1996 § 823 [Ah] BGB no. 122 each with other references). Both points of view took effect in this case.

III.

The decision about the level of monetary compensation which is accordingly to be paid to the claimant is primarily a matter for the judge of fact (see Senate BGHZ 128, 1ff. - NJW 1995, 861 with further references). The Senate has therefore quashed the appeal judgment on this point and referred the case back in this respect to the appeal court for another hearing and decision.

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