Summer, sun, bikini…

Through the publication of a photograph showing a celebrity and incidentally also a woman wearing a bikini, the right to one's own image as well as the general right of personality is violated and must therefore be discontinued. A claim for compensation does not exist, however. The Higher Regional Court (OLG) Karlsruhe recently decided this.

In the print edition of BILD from 10.05.2012, a report was published in the "Sports" section concerning an armed robbery of a well-known professional footballer. Under the heading"A. robbed at Ballermann"the following text was published:

"Sun, beach, thieving bandits. Yesterday we saw … star A. in suggestive female company at Ballermann… Now he became the victim of a criminal offence…"

The content of the report included, inter alia, a photograph showing the footballer at a public beach in front of a rubbish bin. In the background, a woman could be seen lying on a sun lounger and wearing a purple bikini.

The person affected considered her rights violated by this report and brought legal proceedings against the publishers of the Bildzeitung. In her claim, she requested an injunction to prevent any further publication of the image and requested appropriate compensation. The Regional Court (LG) Karlsruhe dismissed the claim. The appeal against this decision was partially successful.

Court decision

By its judgement of 14.05.2014 (AZ: 6 U 55/13), the Higher Regional Court (OLG) Karlsruhe ordered the publisher to cease publication of the image. However, the court rejected any claim for compensation and dismissed the claim in this respect.

By publishing the photograph, the publisher violated the affected person's right to her own image and simultaneously infringed her general right of personality. The affected woman was identifiably depicted in the photograph. She was not permitted to be displayed in public without her consent.

The court rejected the existence of an event of contemporary historical significance, and thus an exception to the consent requirement. Even if one were to assume that the publication of an image of the professional footballer in the context of the report were permissible, this would say nothing about whether the image of the person affected here was also lawful. Since she had no relationship whatsoever to the footballer, public interest could not be justified on this basis. The photograph showed the persons depicted on the beach, in their everyday life engaged in activities which are generally to be regarded as belonging to the private sphere. The readers' interest in mere entertainment regularly carries less weight than the protection of privacy. The alleged information interest of the public in the news that the professional footballer depicted in the foreground had been at the beach the day before, had properly disposed of his rubbish there, and had now become the victim of a criminal offence, was not of such weight as to require that the protection of the personality of the person affected be set aside. The photograph showed the person depicted on holiday, which, even for public figures, regularly belongs to the protected core area of privacy. It would have been readily possible for the publisher, as a press enterprise, to render the person depicted unrecognisable through pixelation or black bars. It also weighed in the balance that the person affected, through her depiction in bathing attire, was exposed to the gaze of the public – here an audience of millions – in a significantly more intense manner than in other situations. Furthermore, parts of the readership could also take the publication as an occasion for speculation as to whether the plaintiff was the woman referred to in the article as "suggestive female company".

The publication was not justified merely because images on which persons appear only as incidentals next to a landscape or other public context might be disseminated and publicly displayed. Here, however, it is only a question of images in which the location determines the content of the photograph.

The court rejected any claim for the payment of monetary compensation. Such a claim is only granted if there is disposal over personality at its core. Such a serious infringement did not exist here. The photograph was taken at the beach and the person affected was dressed appropriately for the situation. The depiction was to be assessed neither as offensive nor as obscene.

Conclusion

Depictions of uninvolved persons in the context of reporting constitute an infringement of the general right of personality without their corresponding consent and furthermore violate the right to one's own image. The person affected has, in such cases, a claim for an injunction. The court rejected a claim for monetary compensation here on the grounds that the infringement was not serious. A different assessment is not entirely excluded. Since the court has admitted the appeal to the Federal Court of Justice (BGH), it remains to be seen whether the Federal Court of Justice (BGH) will now address this matter.