Publication of children's photographs from a sporting event

The eleven-year-old daughter of Caroline Princess of Hannover had been photographed at a sporting event and sued the publisher of the magazine FREIZEIT REVUE to cease publication of the photographs together with accompanying text. The Federal Court of Justice (BGH) rejected the plaintiff's claim for injunctive relief, inter alia on the grounds that photographs and video recordings had become largely standard practice at sporting competitions.

The court's decision

The Federal Court of Justice (BGH) established in itsjudgment of 28.05.2013 – Az. VI ZR 125/12that sporting events, even those of merely regional significance, constitute images in the sphere of matters of contemporary history. The law exceptionally requires no consent from the person depicted for their dissemination, provided that legitimate interests of the person depicted are not violated.

The court then weighed the opposing legal positions against each other, namely on the one hand the interests of the media and on the other hand the personality rights of the persons depicted. What mattered was whether the media not only satisfied readers' or viewers' curiosity about private matters, but addressed a matter of public interest in a substantive manner.

The court examined whether it would preclude the permissibility of reporting that the defendant magazine had also published information not relating to the sporting event ('Your new partner is already like a dad to daughter Alexandra'). However, the court concluded that both the accompanying text and the published photographs still had a sufficient connection to the sporting event itself.

The permissibility of reporting was also not precluded by the fact that the daughter depicted was only 11 years old. Children require particular protection, regardless of whether their parents are prominent figures or not. The media's and its users' interest in images of children also posed particular dangers, which could disturb a child's personality development more severely than that of adults. However, it must be taken into account that a need for protection is regularly absent when parents deliberately expose themselves and their children to the conditions of public appearances by participating in public events. From this it follows that the dissemination of images of children also requires, taking into account the circumstances of the individual case, a weighing of freedom of opinion and press freedom on the one hand against personality rights on the other; accordingly, the dissemination of images with children is not per se impermissible.

In the course of this weighing, the court concluded that the published photographs did not violate the rights of the eleven-year-old daughter in a way that could disturb her age-appropriate development. At sporting competitions, photographs and video recordings have today become largely standard practice, including where events take place only before a limited public. Regardless of whether an adult, adolescent or child: participants in a sporting event must generally be prepared for photographs and video recordings, even if no press photographers are present.

Conclusion

The circumstances of the individual case must be weighed in order to decide whether publication of the image of a person is lawful. According to the case law of the Federal Court of Justice (BGH), this also applies to the dissemination of images involving children. They require particular protection. Publication is nevertheless not impermissible from the outset. The Federal Court of Justice (BGH)'s decision provides sports clubs, sports associations and schools with certain argumentative support, but only for the specific case of publication of images taken at a sporting event.