Violation of the right of personality by bikini photograph?

Is the Bild newspaper permitted to publish a photograph on which a non-prominent person, who happened to be in the vicinity of a prominent person, is identifiably depicted, or does this violate the general right of personality of the person depicted? The Federal Court of Justice (BGH) had to decide this in a case in which a woman in a bikini was photographed in the vicinity of a professional footballer.

The print and online editions of the newspaper "BILD" reported several times on an armed robbery of a professional footballer in El Arenal. This included the following, inter alia: "Sun, beach, beach thieves. Yesterday we saw Star A (25) in a compromising female company at Ballermann. Now he became the victim of a criminal offence."

The disputed photograph of the prominent footballer at Ballermann was attached to this article. In the background, several persons can be seen on sun loungers, including the now claimant lady in a bikini. In a further article, an even larger section of the woman was published on the website of "BILD".

The woman depicted in bathing attire sues the Bild newspaper for unlawful publication of a photograph seeking injunctive relief, removal of the photograph and payment of appropriate compensation.

Decision of the Court

In itsUrteil vom 21.04.2015 – Az. VI ZR 245/14 – the Federal Court of Justice (BGH) decided that the publication of the image was unlawful.

Image publications of a person may in principle only be distributed with their consent. Distribution without the consent of the person depicted is only permissible in exceptional cases if the photograph is to be classified as falling within the sphere of current events or another exceptional circumstance and, furthermore, legitimate interests of the person depicted would not be violated.

These requirements were not met in this case, since the woman photographed had not consented to publication in BILD and its online portal. Furthermore, the woman in the bikini in the photograph was not merely negligible "background material".

The photograph was also not to be classified as falling within the sphere of current events. Whilst the concept of current events did include matters of contemporary significance, that is, not merely events of historical-political significance but also all questions of general societal interest, the depiction of a woman in bathing attire could only in exceptional cases be permitted without consent if there was a connection between the person photographed and the event of current events. In the present case, apart from the coincidental presence, there was no link between the claimant, who was depicted as a "tourist", and the armed robbery which might be classified as an event of current events.

Conclusion

The publication of photographs on which non-prominent persons are recognisable is only permissible without their consent in exceptional cases. An exception would be the case if the person depicted served only in the background as negligible "background material" of the photograph or if it was an event of current events in the context of which the non-prominent person was depicted. If this is not the case, the publication of corresponding photographs constitutes a violation of the general right of personality.