In a litigation proceeding, the Administrative Court (VG) Koblenz was tasked with determining whether a teacher could demand
– the recall of all distributed and sold copies of the 2015/2016 yearbook,
– the anonymization of his photograph in all copies of the 2015/2016 yearbook, and
– the prohibition of future distribution of the 2015/2016 yearbook containing his photograph.
What were the underlying circumstances?
The plaintiff is a senior teacher (Studienrat) employed by the state of Rhineland-Palatinate at a Gymnasium. During the 2015/2016 school year (and the preceding year), the school published a yearbook featuring photographs of all classes and their respective teachers. The plaintiff participated in the photo session and was photographed. His photograph subsequently appeared on two pages of the printed yearbook. The school commissioned the printing of a specific quantity of yearbooks following a student survey. All copies were sold.
Initially, the plaintiff unsuccessfully sought out-of-court the recall of the yearbooks, the anonymization of his image in both photographs, and an injunction against further distribution of the yearbooks.
The plaintiff subsequently pursued his claims through legal action before the Administrative Court of Koblenz. He asserted that the photographs infringed his right to his name, his right to his own image, and his general right of personality. He claimed he had been persuaded by a colleague to participate in the photo session and was unaware of the true intended use of the photographs. Moreover, he stated that the photographer had assured him the photos would not be published, thereby negating any consent for their inclusion in the yearbook.
How did the Administrative Court of Koblenz rule?
The Administrative Court of Koblenz dismissed the lawsuit with the following reasoning:
No infringement of the plaintiff's rights occurred.
According to the Administrative Court of Koblenz, the plaintiff's consent was not required. Furthermore, even if such consent had been necessary, the plaintiff would have implicitly granted it through his conclusive conduct.
Pursuant to Section 23 (1) No. 1 of the KUG, consent was not required because the class photographs contested by the plaintiff fall within the domain of contemporary history, and no particularly protectable interests of the plaintiff, as defined by Section 23 (2) of the KUG, were present.
The concept of contemporary history encompasses all matters of general public interest, including events of only regional or local significance. Yearbooks containing class photographs are, in any case, of local social significance for the school community. The plaintiff is merely affected in his so-called social sphere, as the photos were taken in a professional context and depict the plaintiff in a completely innocuous, posed situation. This impairment of his social sphere is outweighed by the school's legitimate interests in publishing his photographs.
Furthermore, the plaintiff implicitly consented to the publication of his photographs by participating in the photo session. He should have been aware that the school had previously used such photographs for yearbooks and therefore had to anticipate their publication. The photographer's assurance was irrelevant, as the school alone held the authority to decide on the publication of the photographs.
The claim would be impossible to fulfill.
The plaintiff cannot demand the recall of the yearbooks or the anonymization of his photographs. Their precise location remains unknown. Moreover, the court finds no basis for the defendants to claim the surrender of the yearbooks from their owners. The court would thus be imposing an impossible obligation on the defendant.
There is also no risk of recurrence.
The request for an injunction fails due to the absence of the requisite risk of recurrence. There is no threat of further publication of the plaintiff's photographs in a yearbook, as all copies have been sold.
Source: Judgment of the Administrative Court of Koblenz of September 6, 2019, Ref. 5 K 101/19
GoldbergUllrich Attorneys at Law 2019
Julius Oberste-Dommes LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law
