The I Civil Senate of the Federal Court of Justice (BGH) has once again ruled that advertising with the image of a prominent person on the front page of a newspaper can be permissible by way of exception even without reporting justifying this image if it serves the purpose of informing the public about the appearance and orientation of a new newspaper.
The plaintiff is Günther Jauch. The defendant intended to offer a magazine entitled "Markt & Leute" as a printed newspaper and online on the internet from September 2006. It produced a zero number of the newspaper, which was only to be used in introductory advertising for the magazine, but not to be offered for sale. On the front page of the zero number of 6 July 2006, under the headline "Berlin/Wedding" and the title "Jauchs Hochzeit nicht völlig tabu" (Jauch's wedding not completely taboo), there was a report that the Berlin Court of Appeal had provisionally lifted the ban obtained by the plaintiff to report on his forthcoming wedding - it took place on 7 July 2006. This report was illustrated with a portrait photo of the plaintiff. The defendant advertised the magazine on the internet and in newspaper advertisements with pictures of this front page. Since the front page was only incompletely illustrated, the name and the portrait photo of the plaintiff were visible, but only part of the text of the associated article. The defendant stopped its plan to launch the magazine even before a first issue was published.
The plaintiff is of the opinion that the use of his image and name in the advertisement for the magazine, which was done without his consent, infringes his right to his own image and name. He filed a claim for information against the defendant in preparation for a claim for damages. The District Court dismissed the claim. The Court of Appeal upheld the claim for information.
On appeal by the defendant, the Federal Court of Justice reversed the decision of the Court of Appeal and restored the judgment of the Regional Court. According to the Federal Supreme Court, the examination of whether the photograph of the plaintiff used in the defendant's advertising campaign was allowed to be disseminated without his consent as a portrait from the area of contemporary history within the meaning of § 23 para. 1 no. 1 KUG requires a weighing of the plaintiff's interest in the protection of his personality and the public's interest in information perceived by the defendant. The encroachment on the right of personality by the depiction of a portrait photograph of the plaintiff was comparatively minor here because the defendant thereby merely drew the attention of the addressees of the advertisement to its newspaper without exploiting the advertising value or image of the plaintiff beyond that or damaging his reputation. In contrast, the defendant can invoke the interest, protected by the fundamental right of freedom of the press, in informing the public about the design and content of its planned magazine with the illustration of a front page. In the weighing of interests, the fact that the article about the plaintiff depicted in the advertisement did not actually appear in the magazine and should not have appeared at all is not of decisive importance. The Federal Court of Justice has reiterated its opinion that freedom of the press would be unduly restricted if a publisher who permissibly advertises a newspaper to be published in the future with the illustration of an exemplary front page were obliged to publish articles on topics that were current at the time of the start of the advertising campaign but may be outdated at the time of the publication of the first issue (Federal Court of Justice, judgment of 26 October 2009 - I ZR 65/07, GRUR 2010, 546 - Der strauchelnde Liebling).
Judgment of the BGH of 18 November 2010 - I ZR 119/08 - Markt & Leute
Lower courts:
Osnabrück Regional Court - Judgment of 21 December 2007 - 12 O 594/07
OLG Oldenburg - Judgment of 30 June 2008 - 13 U 12/08
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
