The plaintiff, former governing mayor of the city of Berlin, contests the publication of three pictures in the Berlin edition of the "BILD" newspaper published by the defendant under the headline "Before the vote of no confidence we went to the Paris Bar ...". The pictures showed the plaintiff visiting this restaurant, a well-known celebrity meeting place in Berlin, and also a friend, the "Bread & Butter" boss, and his wife on the eve of the vote of no confidence in the Berlin House of Representatives. This had been requested because of the criticism of the management of the construction of the new Berlin airport (BER). The caption reads, among other things: "The governing minister appears visibly relaxed on the eve of the vote in parliament ... and enjoys a drink in the Paris Bar (Kantstraße)". The pictures are inserted in an article about the political vita of the plaintiff with the headline "From party mayor to crash pilot", which reports on the plaintiff's years in office and his "crash in 11.5 years".
The District Court upheld the action for injunctive relief against the publication of the said images. The Court of Appeal dismissed the defendant's appeal. On appeal by the defendant, the VI Civil Senate of the Federal Supreme Court dismissed the action.
In the case in dispute, the published photos were to be assigned to the area of contemporary history (§ 23.1 no. 1 KunstUrhG) and were therefore allowed to be disseminated by the defendant even without the plaintiff's consent (§ 22 KunstUrhG), since legitimate interests of the person depicted were not thereby violated. When assessing the current events, the court of appeal had not sufficiently taken into account the context of the picture reporting complained of and had therefore erred in law in giving priority to the plaintiff's right of personality over the freedom of the press protected by Article 5.1 of the Basic Law. In connection with press coverage of an important political event (here: vote of no confidence in the Berlin House of Representatives), the publication, without consent, of photographs showing the Governing Mayor affected by the event on the previous evening in what was in itself a private situation may be justified by the general public's interest in information. The pictures showed how the plaintiff - described by him without objection - dealt with this burden in public on the eve of the possible end of his political career, namely - as described in the context - relaxed "over a drink" in the Paris bar. The picture report complained of also did not violate any legitimate interests of the plaintiff depicted within the meaning of § 23.2 KUG. It showed the plaintiff in a rather innocuous situation having dinner in a well-known restaurant frequented by prominent people. Under these circumstances - especially on the eve of the vote of no confidence - he could not expect to be withdrawn from the gaze of the public and the press.
Judgment of the BGH of 27 September 2016 - VI ZR 310/14
Lower courts:
Berlin Regional Court - Judgment of 27 August 2013 - 27 O 180/13
Berlin Appellate Court - Order of 7 July 2014 - 10 U 143/13
Source: Press release of the Federal Supreme Court
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
