The defendants operate picture archives for commercial use by press companies. The plaintiff, who was convicted several times of homicide, has been serving a life sentence since 1983. His acts were widely reported in the 1950s, 1960s and early 1980s. On request, the defendants passed on one or two portraits from the fifties and sixties to the magazine "Playboy", which used them to illustrate an article "The file ... Psychogram of a murderer of the century". The plaintiff claimed that the defendants had disseminated the photos without his consent, which was required for this purpose, and had thereby violated his right to his own image. The defendants invoked the right of freedom of the press. The actions were directed at ordering the defendants to refrain from passing on the photos. The Regional Court dismissed the actions. The Higher Regional Court upheld them - with restrictions.
The VI. Civil Senate of the Federal Court of Justice (BGH), which is responsible for the right of personality. The Federal Supreme Court (Bundesgerichtshof, BGH), which is responsible for personality rights, overturned the appeals and dismissed the lawsuits.
The exchange of permissibly archived image material is protected by the freedom of the press (Article 5 (1) sentence 2 GG). According to the established case-law of the Federal Constitutional Court, this not only guarantees the freedom to disseminate news and opinions; rather, it also protects the entire area of journalistic preparatory activity, which includes, in particular, the procurement of information. This must be taken into account in the interpretation of the term "dissemination" of images in Section 22 of the Art Copyright Act (KunstUrhG). A quasi internal press dissemination of photographs by a picture library may therefore in principle not be made dependent on the owner of the picture agency checking whether the press coverage intended using the photographs will be lawful. The responsibility for a press publication lies solely with the publishing press organ, which must also check the permissibility of the use of the photos according to §§ 22, 23 of the German Art Copyright Act (KunstUrhG). The person depicted does not suffer any tangible disadvantage as a result. The dissemination of photos in the quasi-internal area of the press only slightly impairs his or her right of personality.
Judgment of the BGH, file number VI ZR 30/09
Previous instances:
Frankfurt am Main Regional Court - Judgment of April 17, 2008 - 2/3 O 129/07
Higher Regional Court Frankfurt am Main - Judgment of December 23, 2008 - 11 U 22/08
and
Judgment of the BGH, file number VI ZR 34/09
Previous instances:
Frankfurt am Main Regional Court - Judgment of April 17, 2008 - 2/3 O 90/07
Higher Regional Court Frankfurt am Main - Judgment of December 23, 2008 - 11 U 21/08
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law (IT law)
E-mail: info@goldberg.de
