Contemporary event vs. protection of privacy

The defendant is the publisher of the "Bild" newspaper. The plaintiff was sentenced to seven years and six months imprisonment for membership of a foreign terrorist organisation in combination with attempted participation in murder by a now final judgment of the Stuttgart Higher Regional Court of 15 July 2008 together with two co-defendants (press release of the Stuttgart Higher Regional Court of 15 July 2008; BGH, decision of 22 September 2009 - 3 StR 203/09, press release no. 203/2009). He sued the defendant for injunctive relief because a photo of the plaintiff was published in the edition of the Bild-Zeitung of 16 July 2008 in the context of a report on the pronouncement of the sentence under the headline "Iraq terrorists must go to prison for assassination plot!" showing his face.

The criminal proceedings concerned a planned attack by the terrorist group "Ansar al-Islam" on the then Iraqi Prime Minister Allawi. During the main hearing before the Stuttgart Higher Regional Court, television and image recordings were only permissible on the day of the pronouncement of judgement according to the order of the presiding judge pursuant to section 176 of the Judicature Act (Gerichtsverfassungsgesetz, GVG)*, provided that the faces of the defendants were made unrecognisable by suitable measures (pixellation).

The District Court ordered the defendant to refrain from distributing the photo unpixelated or his face otherwise rendered unrecognisable. The defendant's appeal was unsuccessful. On the defendant's appeal, the VI Civil Senate of the Federal Court of Justice, which is also responsible for the right of personality, ruled in favour of the defendant. The court ruled that the plaintiff was not entitled to an injunction against the photo report that identified him.

The permissibility of a publication of images is to be assessed in principle according to the graduated protection concept of §§ 22, 23 KUG. According to this concept, images of a person may in principle only be disseminated with the person's consent - which is not the case here (section 22 sentence 1 KUG). However, according to § 23 (1) KUG, there is an exception to this if the images are from the area of contemporary history. However, this exception does not apply to dissemination that violates the legitimate interests of the person depicted (Section 23 (2) KUG).

In the case in dispute, the current reporting on the pronouncement of the judgement was a contemporary event within the meaning of § 23 (1) KUG, in which the public had a considerable interest in information. In contrast, the plaintiff's protection of personality rights had to take a back seat. The circumstance that the plaintiff only wanted to allow the photographs to be taken in reliance on the meeting police order did not carry the weight assumed by the Court of Appeal. It must be taken into account that according to the protection concept of §§ 22, 23 KUG, unpixelated photographs would also have been permissible without the plaintiff's consent and that ultimately, through his conduct, he could at most have thwarted photographs which were in principle permissible because of the public's considerable interest in information. The right of personality is not to be protected to a greater extent than is the case under §§ 22, 23 KUG, even in the context of the session police.

Judgment of the BGH of 7 June 2011 - VI ZR 108/10

Lower courts:

Berlin Regional Court - Judgment of 26 February 2009 - 27 O 982/08

Kammergericht - Judgment of 6 April 2010 - 9 U 45/09 (published in AfP 2010, 385 and in NJW-RR 2010, 1417)


Source: Press release of the BGH


Goldberg Attorneys at Law 2011

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)