The I Civil Senate of the Federal Court of Justice has ruled that the Axel Springer publishing house must pay a fictitious licence in the amount of € 50,000 because of an advertising solicitation of Gunter Sachs, who died a year ago.
The Axel Springer publishing house publishes, among others, the "BILD am Sonntag". In the issue of 10 August 2008, there was an editorial article on the last page, which was illustrated with three photos of the plaintiff. In one large photo, the plaintiff can be seen reading a newspaper with the "BILD" symbol. The caption inside the picture reads: "Gunter Sachs on the yacht "Lady Dracula". He reads BILD am SONNTAG, like over eleven million other Germans." The plaintiff's reading is also highlighted in the continuous text.
Gunter Sachs then filed a claim against the Axel Springer publishing house for injunctive relief and for payment of a licence fee in the amount of € 50,000. The Regional Court of Hamburg ordered the publishing house to cease and desist and dismissed the remainder of the action. On the plaintiff's appeal, the Hamburg Higher Regional Court also ordered the Axel Springer publishing house to pay a licence fee in the amount demanded by the plaintiff.
The Federal Court of Justice has now rejected the Axel Springer Verlag's appeal against this judgement. The fact that the plaintiff died during the appeal proceedings had no effect on the proceedings. The Senate saw a violation of the right to one's own image (§§ 22, 23 KUG) in the fact that the plaintiff had been used for advertising purposes by the picture and the accompanying text coverage without his consent. The fact that the advertisement was not in a recognisable advertisement but in an editorial article did not change this. In contrast, the defendant publishing house cannot invoke an overriding interest in information. Rather, according to the Federal Supreme Court, the plaintiff's right of personality took precedence over the public's interest in the news that the plaintiff was reading the newspaper "Bild am Sonntag" on his yacht, which could only be considered minor. In doing so, the Federal Supreme Court also took into account that the defendant publishing house had inadmissibly invaded the plaintiff's privacy by publishing the photo. By using the plaintiff for advertising, the publishing house gained a pecuniary advantage which justifies the claim for payment of the licence.
Judgment of the BGH of 31 May 2012 - I ZR 234/10 - Playboy am Sonntag
Lower courts:
Hamburg Regional Court - Judgment of 4 December 2009 - 324 O 338/09 (AfP 2010, 193)
OLG Hamburg - Judgment of 10 August 2010 - 7 U 130/09 (ZUM 2010, 884)
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
