Party photos of tenants in brochure permitted?

The Federal Court of Justice (BGH) had to determine whether a housing cooperative may publish a photograph of three female tenants taken at a party at their apartment building without their consent in a tenant brochure, or whether this constitutes a violation of the general right of personality of the persons depicted.

The cooperative reported on a party of its tenants in a tenant brochure. In doing so, the housing cooperative published a photograph taken at the tenant party without asking the persons depicted for permission. As a result, the female tenants depicted felt their right of personality violated and sued the cooperative for reimbursement of warning letter costs and monetary compensation.

The housing cooperative refused to issue a cease-and-desist declaration. Although the Art Copyright Act (KUG) stipulates that portraits may generally only be published with the consent of the persons depicted, § 23 KUG provides for several exceptions. In the present case, at least the exception applies that images of assemblies, processions and similar events in which the persons depicted participated may be taken and published.

Court's decision

By means ofjudgment of 08.04.2014 – Az. VI ZR 197/13 – the Federal Court of Justice (BGH) rejected both the tenants' claim for an injunction and their claim for damages.

While the lower courts permitted publication of the photograph on the basis of the exception in § 23 Abs. 1 Nr. 3 KUG for recordings of groups of persons, the BGH (Federal Court of Justice) assessed the disputed photograph of the tenants as a portrait from the field of contemporary history within the meaning of § 23 Abs. 1 Nr. 1 KUG.

The cooperative's information brochure constituted a pictorial report on an event of local, social significance and was protected as a contemporary (social) event by freedom of expression.

No infringement of the rights of the female tenants existed, since the photograph was not defamatory and the brochure was addressed only to a limited circle of recipients. Therefore, there was neither a claim for reimbursement of pre-litigation warning letter costs nor a claim for payment of monetary compensation for violation of the general right of personality.

Conclusion

Although publication of a portrait generally requires the consent of the person depicted, there are numerous exceptions that must be examined before assuming a violation of the right of personality. In the course of weighing these against freedom of the press, these exceptions sometimes extend quite far. According to the present decision of the BGH (Federal Court of Justice), the scope of application of a contemporary historical event already exists in the case of a party given by tenants of an apartment building.