Persistent Violation of Personality Rights?

After the Regional Court (LG) Cologne had granted first instance relief in the claim by well-known pop singer Helene Fischer for damages, the Higher Regional Court (OLG) Cologne decided on appeal that whilst the publication of the images did indeed constitute a violation of personality rights, this was not to be regarded as persistent and therefore no entitlement to monetary compensation existed.

Helene Fischer had sued a publishing company for EUR 7,500 in damages, which had published three pictures of her and her partner in a magazine over a period of three years. The pictures were taken during a restaurant visit while on holiday in Mallorca. An article bore the headline "Shock Photos – Is This Love Still Salvageable?". The article speculated about the end of the pop star's relationship. The singer opposed this reporting and demanded that the magazine publishing company cease publication and pay damages, which the LG Köln granted. The OLG Köln confirmed this only in part.

Court Decision on the Persistence of the Violation of Personality Rights

The OLG Köln confirmed by judgment dated 03.11.2016 – Az. 15 U 66/16 – the violation of the singer's right to her own image, i.e. a violation of personality rights, and upheld the claim for injunctive relief. However, in the opinion of the OLG, this was not so serious as to warrant monetary compensation for Helene Fischer.

According to the case law of the Federal Court of Justice (BGH), a violation of rights which gives rise to compensation claims exists only if either a serious impairment is present which cannot be remedied in any other way than with money, or if the violation, through repeated and persistent conduct, creates a particular intensity. This may also be the case if the individual publications, viewed in isolation, do not constitute a serious violation, but the circumstances, the textual reporting and the time intervals are such as to demonstrate persistent conduct.

This was denied here by reference to an earlier judgment of the Federal Court of Justice (BGH) from 2004. That case involved 9 clandestine photographs taken within 12 months of a minor who was not herself in the public eye, on the premises of her well-known parents. In that case, a duty to pay damages was affirmed. However, in the case of the OLG Köln, there was a lack of comparable intensity. The accompanying textual report about a possible end to Helene Fischer's relationship likewise did not represent comparable intensity of the infringement. Therefore, the publishing company was not to be ordered to pay damages.

Conclusion

Whether a duty to pay damages exists must be examined on the basis of several criteria in the individual case. Among other things, the circumstances under which and in what context, and in particular how frequently and at what time intervals the publications occur, play a major role. Infringements that occur at intervals of more than one year are as a rule not to be classified as persistent conduct.