Pictorial reporting permissible even if verbal reporting is unlawful?

The Federal Court of Justice (BGH) had to decide whether pictorial reporting can be permissible even if a prior court judgment that has become final in another proceeding between the same parties has established that the verbal reporting violated the right to general personality.

The plaintiff asserts claims for injunction against the defendant, who publishes the magazine 'Revue', in connection with pictorial reporting from 12 October 2006 in the magazine 'Revue', in which reporting is given on an opening event for an exhibition with pictures by painter and photographer Yves Klein at the Paris Centre Pompidou and on the relationship of the plaintiff who appeared at this event to her companion, Mr W. The article mentions some of the prominent figures who attended the opening event, but is mainly concerned with the plaintiff and her companion Mr W., who has been seen at her side since summer 2004.

The verbal reporting associated with the article is not objected to in the present legal dispute. However, it was prohibited in another proceeding between the same parties to the extent that it concerns the personal circumstances of the plaintiff.
The Regional Court (LG) and the Court of Appeal (Kammergericht) Berlin found that the pictorial reporting violated the plaintiff's right to one's own image and upheld the injunction claim. Not only was there an absence of express consent to publication, but furthermore none of the photographs contained any statement concerning a contemporary historical event, which would otherwise constitute an exception to the right to one's own image.

Court decision
In itsJudgment of 13.04.2010 – Az.: VI ZR 125/08the BGH set aside the appellate judgment and dismissed the action. The plaintiff has no claim against the defendant for an injunction against the pictorial reporting arising from her right to general personality.

Contrary to the view of the appellate court, the objected-to photographs were images from the sphere of contemporary history. The concept of contemporary events does not encompass only matters of historical and political significance, but all matters of general public interest. This also includes societal events such as the opening event in connection with the exhibition of a renowned artist at the Paris Centre Pompidou.

The informational content of the pictorial reporting was not limited, as the appellate court held, to the depiction of the alleged romantic relationship between the plaintiff and Mr W. Rather, the subject matter of the pictorial reporting was also the opening event itself, to which a large number of well-known personalities, including the plaintiff in the company of Mr W., had come.

Since the pictorial reporting itself reproduced a societal and thus contemporary historical event, it was consequently immaterial that parts of the associated verbal reporting concerning the personal circumstances of the plaintiff had been declared unlawful in another matter.

Conclusion

According to the decision of the BGH, pictorial reporting can therefore also be permissible even where individual statements in the verbal reporting are unlawful due to violation of the right to general personality, provided that the photograph in question also depicts at least a contemporary historical event.

Only if justified interests of the person depicted stand against it, which is to be determined by way of weighing, does an unlawful pictorial report exist.