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Standards of constitutional law applying to the admissibility of photojournalism concerning the private and everyday life of celebrities
Press Release No. 35/2008 of 18 March 2008
Order of 26 February 2008
1 BvR 1602/07
The complainants are Princess Caroline von Hannover and two publishers. The publisher of Frau im Spiegel magazine had reported on an illness affecting Prince Rainier of Monaco, on whether the complainant would be attending a society ball, and on a popular resort for winter sport, and had in each case added photographs showing the complainant on holiday with her husband. The publisher of 7 Tage magazine had reported on the letting of a holiday villa belonging to the couple and had added a photographic image showing the complainant on holiday with her husband.
The applications for injunctive relief lodged by the complainant Caroline von Hannover before the civil courts were directed against the photographs. The Federal Court of Justice (Bundesgerichtshof) only allowed publication of the photo illustrating the article concerning the illness of the Prince of Monaco. In all other cases, it confirmed the prohibition issued by the lower courts, approving in particular the prohibition on publishing the photograph illustrating the report on the letting of the holiday villa.
The constitutional complaints lodged by the complainant Caroline von Hannover and the publisher of Frau im Spiegel magazine failed. The First Senate of the Federal Constitutional Court held that the Federal Court of Justice had properly assessed the relevant concerns of both parties in a constitutionally unobjectionable manner, taking into account the relevant standards laid down by the case-law of the European Court of Human Rights (1 BvR 1602/07 and 1 BvR 1626/07).
The constitutional complaint lodged by the publishers of 7 Tage magazine, on the other hand, was successful. The challenged decisions violated the publisher's right of freedom of the press. The considerations of the courts give no sufficient indication as to why it was not legitimate to illustrate the subject of the text of the report on the letting out of the holiday villa with a visual portrayal of the complainant (1 BvR 1606/07).
In essence, the decision is based on the following considerations:
I. The fundamental rights of freedom of the press and protection of personality rights are not guaranteed without reservation. The general laws curtailing the right of freedom of the press include inter alia the provisions of §§ 22 et seq. of the Art Copyright Act (Kunsturhebergesetz - KUG) and the legal concept of personality rights under civil law, but also the right to respect for private and family life as enshrined in Article 8 of the European Convention on Human Rights (ECHR). At the same time, the provisions contained in the Art Copyright Act, as well as the right to freedom of expression guaranteed by Article 10 ECHR, restrict the protection of personality rights as part of the constitutional order.
Even "mere entertainment" is protected by the right of freedom of the press. Entertainment can fulfil important social functions, such as when it conveys images of reality and proposes subjects for debate that spark off a process of discussion relating to philosophies of life, values and everyday behaviour. Protection of freedom of the press also covers entertaining reports concerning the private and everyday life of celebrities and the social circles in which they move, in particular, concerning persons who are close to them. To limit reporting on the lifestyle of this circle of persons only to reports concerning the exercise of their official functions would mean restricting freedom of the press to an extent that is no longer compatible with Article 5.1 of the Basic Law (Grundgesetz - GG). Press reports may bring to the attention of the public not only behaviour that is scandalous or morally or legally questionable, but also the normality of everyday life, as well as conduct of celebrities that is in no way objectionable, if this serves to form public opinion on questions of general interest.
II. Freedom of the press includes the right of the mass media to decide themselves what they consider worthy of reporting. In so doing, they are to have regard to the personality rights of the persons concerned. However, in the event of a dispute it shall be for the courts to decide what weight should be attached to the public's interest in being informed when weighed against the conflicting interests of the persons concerned. While assessing the weight to be attached to the public's interest in information, the courts are to refrain, however, from evaluating whether or not the portrayal is of value in terms of its content, and are to limit themselves to an examination and analysis of the extent to which the report may be expected to contribute to the process of forming public opinion. In assessing the weight to be attached to the protection of personality rights, the situation in which the person concerned was photographed and how he or she is portrayed will also be taken into account in addition to the circumstances in which the image was obtained, such as by means of secrecy or continual harassment. The need to protect personality rights can thus acquire greater significance even outside situations of spatial seclusion, such as when media reports capture the person concerned during moments where he or she is in a state of relaxation and "letting go" outside the sphere of obligations imposed by professional or everyday life, at times when the person may be entitled to assume that he or she is not exposed to the view of photographers. The need for protection has increased as a result of developments in camera technology and the availability of small cameras.
Commentary in or via the press generally aims to contribute to the formation of public opinion. The fundamental right in Article 5.1 GG does not, however, justify a general assumption that any and every visual portrayal of the private or everyday life of famous personalities is associated with contributing to the formation of public opinion. It bears mentioning that to date, the Federal Constitutional Court has not recognised unrestricted access by the press to contemporary public figures but has, rather, viewed published images as justified only insofar as the public would otherwise be deprived of opportunities to form an opinion. What is not safeguarded by the constitution, on the other hand, is that a contemporary public figure who is not in a situation of spatial seclusion may be photographed at any time and without restriction for journalistic purposes.
III. It is the task of national courts other than the Federal Constitutional Court to examine the informational value of reports and their illustrations on the basis of their relevance to the formation of public opinion and to weigh freedom of the press against the detriment to the protection of personality rights associated with obtaining and disseminating the photographs. The role of the Federal Constitutional Court is limited to examining retrospectively whether the other national courts, in interpreting and applying the provisions of ordinary statutory law, particularly when weighing conflicting legal rights, have sufficiently regarded the influence of fundamental rights, as well as the constitutionally relevant provisions of the European Convention on Human Rights. The fact that their assessment might have resulted in a different conclusion is not a sufficient ground for the Federal Constitutional Court to rectify a decision of such courts.
IV. By reference to the standards defined above, the following applies in the instant case:
1. There were no constitutional objections, in principle, preventing the Federal Court of Justice from deviating from its previous case-law in judicially assessing the criteria for the admissibility of a piece of photojournalism and modifying its concept of protection by dispensing with the use of the legal concept of the contemporary public figure (Person der Zeitgeschichte) previously developed by reference to legal writing. As the concept of the contemporary public figure is not prescribed by constitutional law, the national courts are free under constitutional law not to use the term at all in future or to use it only in limited circumstances, and to decide instead by considering in each individual case whether the image concerned is part of the "sphere of contemporary history".
2. According to the standards indicated, the constitutional complaints of the complainant Caroline von Hannover and of the publisher of Frau im Spiegel magazine are unfounded. The Federal Court of Justice properly assessed the relevant concerns of both parties in a manner that is constitutionally unobjectionable thereby taking into account the relevant standards laid down by the case-law of the European Court of Human Rights. In particular, the Federal Court of Justice - even in accordance with the standards laid down by the case-law of the European Court of Justice - was permitted to view the report on the illness of the reigning Prince of Monaco as an event of general public interest manifesting a sufficient connection to the published image.
3. The right of freedom of the press was violated, however, when the publisher of 7 Tage magazine was prohibited from adding a visual portrayal of the complainant to a report on the letting of a holiday villa in Kenya. The courts failed to recognise the informational content of the report which, in the magazine, opened with the words: "Even the rich and beautiful live economically. Many let their villas out to paying guests." The report was not about describing a holiday scene as part of private life. Rather, it was a report on the letting of a holiday villa belonging to the couple and on similar undertakings by other celebrities, and it contained value judgments in the commentary which might inspire readers to reflect socio-critically. There is no indication in the situation depicted in the image used that Princess Caroline von Hannover had been photographed while engaged in an activity which was typically associated with a need to relax and was therefore worthy of a higher level of protection from media attention and portrayal. The prohibition confirmed by the Federal Court of Justice was therefore revoked and must be examined anew on the basis of the standards laid down by the Senate.