Photographic rights for (sports) journalists

During the general meeting of the Association of German Sports Journalists (VDS) on 20.10.2014 in Stuttgart, several questions concerning photographic law were identified, which were repeatedly raised in similar form. I will therefore address these in writing once more following the event. Since the questions arose in the context of a conference of sports journalists, they are in a certain sense specific, but the answers are also applicable to other areas of life.

For reasons of space, the answers are kept general and naturally cannot replace a legal examination of individual cases. Nevertheless, the answers provide sufficient guidance for the journalist or publishing medium to form their own assessment.

Must the refusal of individual athletes regarding image usage be respected?

The hypothetical case was described several times in which an individual player of a third-division football club explicitly informs the photographers present before the (publicly accessible) match that he does not wish to be photographed and explicitly prohibits the publication of any images taken of him. Given these clear words, a journalist without legal training may have concerns as to whether he must actually exclude individual athletes upon their wish during the creation of the images and/or their later use.

The answer to this question is clear, although the reasoning is more nuanced. Of course, an athlete who puts himself into the public eye through his sport – regardless of the level of sporting activity – must accept that he will be perceived during the exercise of it. He must therefore reckon with being depicted during the event and must set aside his personality rights to that extent. This also applies if the affected person explicitly makes clear before or after the event that he does not agree with the dissemination of his image. The reasoning can be found either in the fact that the photograph in question shows not only the athlete, but shows him as part of the public event, or in the fact that in any case it is a contemporary historical event of general, possibly also local, interest. This naturally applies to both team and individual sports.

From a technical legal standpoint, this is explained in that participation in the sporting event contradicts the previous declaration. The latter is therefore to be regarded as superseded or in any case disregarded. The same applies to the later prohibition, because the athlete would thereby contradict the statutory permissibility of image reporting.

Are personal circumstances of the athlete relevant?

Of course, the player who, for example, is on sick leave or should be attending his grandmother's birthday, has no right not to be mentioned and depicted later in a report as the goal scorer or otherwise. Apparently, this is not such a rare concern especially in lower league competitions. Freedom of the press and the general public's interest in information cannot ultimately depend on individual personal preferences. In case of doubt, the athlete should therefore not participate in an event if he fears personal conflicts. Otherwise, he must bear the consequences.

Can the organiser or club prevent the creation and dissemination of photographs of the sporting event through the exercise of house rights?

It is conceivable that the organiser grants spectators admission to the event only on the condition that no photographs are taken, and permits this only to specially accredited persons or journalists.

In fact, in this way the taking of photographs and thus also the dissemination of photos of the event can be prevented. However, it is equally true that photographs taken despite such a restriction are not legally 'contaminated' in such a way that they could not be published later. Only the photographer as a contracting party has contractual consequences to fear – if he can be identified at all. The dissemination of the photograph cannot be prohibited. It is and remains marketable and is only encumbered with the rights of the photographer, who decides whether and how the publication takes place.

What if an athlete is encountered privately on the street? May one photograph him and subsequently publish the image?

Here the same rules apply as for all other (prominent) people. There must be an event regarding which the general public has an interest in information that outweighs the interest of the affected person in the protection of his personality and privacy. This ultimately depends on how the person generally conducts himself, in which sphere the event takes place (private or social sphere), its topicality, its informational content, etc.

The fact that Mesut Özil was shopping privately does not meet these requirements – unless he is skipping training. However, it is different if two generally well-known Wilde Kerle cause a disturbance in public and trample flower beds or if an individual Wilder publicly urinates against a pavilion. Between these extremes, however, there are a number of gradations which are often difficult to assess. For example, the actually private visits of Corinna Schumacher to her husband in the clinic. One might think that this process is private and must also remain private. The Regional Court of Cologne (LG Köln) takes a different view. The clinic visit is indeed a purely private event, but not the media frenzy surrounding the visit. It is therefore a contemporary historical event, for which image reporting is permissible.

Conclusion

The last example shows how difficult the assessment can be in such cases. Ultimately, the photojournalist or publishing medium must rely on his experience and common sense. As a rule, this works quite well. In any case, it would hardly be practical to consult a lawyer before every image publication. In cases of doubt, however, it may well be worthwhile to do so.