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Case:
OLG Stuttgart 4 U 84/82
Date:
09 December 1982
Judges:
Professor B.S. Markesinis
Copyright:
Raymond Youngs

Facts

The defendant’s programme “Länderspiegel” on the 31st January 1981 was about the Bavarian Education Ministry’s guidance on sex education. Amongst other things, it showed television viewers a picture from the Human Biology text book published by C in which the first claimant, a female model, and the second claimant, a small girl, but now 13 years old, are photographed naked. This picture was produced for the text book in 1973 with the claimants’ agreement. The claimants’ agreement to broadcasting the picture on the defendant's television programme was unquestionably not obtained.

The same picture had also been used by the publishers G for an issue of S and by the publishers T for an issue of its satirical magazine, likewise without the claimants’ consent. G was ordered by a judgment of the senate of the 16th December 1981 (reference omitted) to pay compensation for distress of 5000 DM (claimed as a partial sum) for violating the first claimant’s right to her own picture and her general personality right by publishing the picture. This sum was increased by 2500 DM by a subsequent agreement between the first claimant and G, and paid out. T was ordered by the Stuttgart Landgericht in a judgment of the 6th May 1982 (reference omitted) to pay compensation for distress of 3000 DM. This sum has not yet been paid to the first claimant.

In the present proceedings, the first claimant demands compensation from the defendant for her material harm, in the form of a licence fee, and compensation for distress in the sum of 10,000 DM. The second claimant only demanded compensation for her material harm.

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Reasons:

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The first claimant’s appeal is unsuccessful. The defendant’s cross appeal is only partially successful.

1. The senate adheres to the view of the law propounded in the two preceding parallel proceedings between the claimants and G, and between the first claimant and T. This view was that the use of the photograph made in 1973 from the Human Biology text book, and its dissemination without the consent of the persons shown in it, should be assessed as an unlawful and culpable violation of their right to their own picture and their general personality right. In reply to a claim based on § 22 of the KUG (Artistic Creations Act) and § 823 (1) of the BGB, the defendant can rely neither on the exception in § 23 (1) no 1 of the KUG, nor on the freedom of quotation under § 51 of the UrhG (Copyright Act), nor on a tacit consent by the claimants.

a) The photograph which is the subject of the dispute is not a picture from the sphere of contemporary history in the sense of § 23 (1) no 1 of the KUG. The defendant considers this provision to be applicable regardless of whether the person shown in the picture is, as such, of significance in contemporary history, if the picture being assessed ought be regarded objectively as a document of contemporary history because of its content and character. The senate cannot follow this assessment. § 23 of the KUG and the exceptions regulated in it cannot, as the wording of the statutory provision shows, be assessed in isolation from § 22 of the KUG. It is therefore necessary to adhere to the view that pictures from the sphere of contemporary history are to be understood as only covering those which are of contemporary interest simply because of the person depicted as such (references omitted). The Landgericht has established by correct reasoning that this prerequisite is not fulfilled in respect of the picture of the claimants which is the subject of dispute. Nothing needs to be added to this after the defendant has expressly made it clear in the reasoning to its appeal that it does not consider the claimants to be persons of contemporary history.

But even if, contrary to the view of the senate, the picture were claimed to be significant in the context of contemporary history, the defendant’s argument would have to fail because of § 23 (2) of the KUG. The defendant can admittedly rely on the television viewer’s interest in information about sex education in state schools. It can argue that the decision of the Bavarian Education Ministry to convey to school children the physical differences between the sexes by means of diagrams instead of real photographs had to be at the centre of such information. However, this viewpoint alone cannot, according to the senate’s view, justify the violation of the claimants’ right to their own picture. The picture which is the subject of the dispute simply shows four naked people in full portrait size, and this could have been comprehensibly described to any television viewer without any difficulty. No interest on the part of the defendant in the publication of the picture can therefore be established which would assume greater importance than the claimants' interests in the preservation of their anonymity.

In this connection, the defendants cannot argue on the basis of their assertion about the disintegration of sexual inhibitions - referring to the appearance of naked people at demonstrations and sunbathing in parks in Munich, as well as tolerance towards the widespread practice of unmarried people living together. Even (and in fact especially) the person who belongs to a minority (ie, in this case, the person who possibly feels more shame than other citizens) must be able to appeal to the general right of personality and the right to one's own picture as an expression of this basic right - as with the basic right to freedom of expression, which is comparable in this respect.

Finally, the claimants’ legitimate interest (in the sense of § 23 (2) of the KUG) cannot be denied just because they were in agreement more than seven years ago with publication of the naked picture in a textbook which is still in print today. The senate has already made it clear in its judgment in the parallel proceedings by the claimants against G (reference omitted), referring to the Lehbach decision of the Federal Constitutional Court (reference omitted), that no one who happens to have behaved in a certain way has to put up with violations of his right of personality for an indefinite period.

b) Likewise in the above mentioned judgment of the senate the objection raised in those proceedings (as in the present proceedings) that the publication of the picture which is the subject of the dispute only represents an extract from a picture which is permissible under § 51 of the UrhG was described as not technically justified. § 51 of the UrhG can only be raised as an objection against the author - and therefore in this case the photographer - but not against the person who is affected in his general right of personality, and whose consent is required by § 22 of the KUG (reference omitted).

c) Finally the defendant can also not rely on consent by the claimants. The fact that an express consent was never given to the defendant is not disputed. Contrary to the defendant’s view, agreement to the first publication of the picture in the text book cannot be seen as consent to the publication in the television programme of the 31st January 1981, nor as a consent limited to the extract from the picture. The defendant fails to recognise that every consent is a declaration of will which needs to be received, and therefore would have to have been given to the defendant. Besides this, it is not clear what evidence there is that the claimants had an intention at the time to consent going beyond consent to the publication in the text book.

If it is therefore necessary to assume an unlawful and culpable violation of §§ 22 of the KUG and 823 (1) of the BGB, the defendant is obliged to compensate the claimants.

a) As far as the second claimant’s demand is concerned, the Landgericht, in the absence of a dispute as to the amount claimed, has given judgment against the defendant in accordance with the application. There is no substantiated dispute in this respect at second instance either. It is true that the defendant claims that the television companies used to pay, at best, fees of 90 to 120 DM for pictures; and in this connection it is not even clear whether there has ever been a fee agreement for a comparable picture in the past. Apart from this, the level of damage in a tort case is determined not according to what the defendant would have paid, but according to what would have been reasonable as a fee. Under these circumstances, the disputed judgment in relation to the second claimant must be confirmed.

b) On the other hand, as the Landgericht has correctly established, the first claimant is not allowed an abstract calculation of the harm. She has expressly stated that she had not under any circumstances given a consent to the publication of the picture which is the subject of the dispute. For this reason violation of property law interests does not come into question at all in her case...

c) So far as concerns the first claimant’s claim to compensation for distress, the disputed decision cannot be upheld. It is admittedly necessary to agree with the Landgericht in so far as it has seen and found in the unlawful exposure of the first claimant a grave interference and that the non-financial harm resulting from this can only be satisfactorily compensated by a fair sum of money. But the senate cannot share the Landgericht’s view of the law that the publication of the same picture in S and in the satirical magazine T was of no significance when measuring the compensation for distress in the actual case. This assessment is in any case incorrect if the actions causing the injury have been committed by the various parties under a obligation to compensate sequentially within a relatively short space of time. This becomes quite clear if one assumes the theoretical case of the viewers of the defendant’s television programme and the readers of the two publications mentioned agreeing with each other completely. On these premises it would have to be established that virtually no additional harm to the first claimant could have arisen through the television broadcast which is now to be assessed. Now this premise is certainly not justified in the present case, as the circle of viewers of the defendant’s television programme and the circle of S and T readers hardly coincide. This way of looking at the matter shows however that, in the case of violations by various publications which have appeared in quick succession, the situation must be considered as a whole so far as the consequences of the act are concerned. The difficulties which then still arise from the inability to elucidate the extent of the contributions to the cause do not affect the victims because of §§ 830 (1) sentence 2 and 840 (1) of the BGB. These provisions, the purpose of which is not to burden the victim with the uncertainties about participation caused by the coincidence of courses of events, must, because of the analogous nature of the conflicting interests, also apply in principle in the sphere of protection of honour. Contrary to the view of the Landgericht, the matter does not need to be assessed differently just because special weight attaches to the satisfaction function of granting of a claim to compensation for distress in personality law. The treatment of different co-perpetrators as joint debtors does not exclude the possibility that in individual cases they are obliged to compensate over and above the joint debtor liability because of the special nature of their contribution to the act (which must of course be fully proved). If there are no such special features in individual cases (and the senate in the present proceedings has to assume this in relation to the defendant as well as in relation to G, in the absence of a substantiated statement of case) the first claimant can only claim against the defendant as a joint debtor. In accordance with §§ 421, 422 of the BGB she must let what G (who is liable along with the defendant) has indisputably already paid to her (7500 DM) be fully set against her claim.

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In these circumstances, the disputed judgment had to be amended. The claim to compensation for distress had to be rejected; and the defendant ordered to pay the sum of 3000 DM with interest already awarded to the claimant by the Stuttgart Landgericht in parallel proceedings (reference omitted), but, according to her undisputed allegation, not yet paid by T.

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