Hostess at celebrity party consents to publication of photograph

Disputes over the publication of photographs are generally initiated by celebrities who feel their personality rights have been infringed. The Federal Court of Justice (BGH) had to decide a somewhat different case: here, a hostess employed at a celebrity party took action against the publication of a photograph on the internet on which she could be seen performing her duties. The woman thereby considers her right to her own image to be infringed.

The hostess had been commissioned by a promotion agency to offer cigarettes of a particular brand to guests at a party attended in part by celebrities. The information material previously handed over contained, among other things, instructions for conduct in the event of photographs or film recordings being taken. Finally, the hostess was photographed at the event photographed as she offered cigarettes to a (non-prominent) guest. The photograph was published on a website, against which the woman took action. She contends that the publication infringes her right to her own image and therefore was carried out unlawfully.

The court's decision

The Federal Court of Justice (BGH) decided in a judgment of 11.11.2014 (VI ZR 9/14) that the publication of the photograph was lawful and did not infringe the hostess's right to her own image. Unlike the court of first instance, however, the court left open whether there had been reporting on a matter of contemporary history. The Regional Court (LG) Berlin proceeded on this basis, as the general public had a legitimate interest in information about which celebrities attend which parties and how they celebrate. Rather, the court assumed that the hostess, by accepting the commission, had consented to photographs of her person being taken and published, and therefore her right to her own image had already been exercised, even without an explicit declaration. This was to be inferred as apparent from the circumstances as a whole. The media representatives present at the event could likewise only have understood the hostess's activities as meaning that she consented to the taking and publication of photographs in the interests of her employer.

Conclusion

The Federal Court of Justice (BGH)'s reasoning is more convincing than that of the court of first instance. Since no prominent person was visible in the photograph, the publication of the photograph should not have been covered by a general public interest in information. The image contains no information of interest to the general public. It is therefore far more plausible to assume that a hostess must reckon on being photographed and is in agreement with it. She therefore waived her right to her own image by accepting the commission, or had already exercised this right. This ultimately also corresponds to everyday experience. However, as an organiser or client, one should not rely on this and instead should rather obtain an explicit declaration of consent.