Federal Constitutional Court - Press office -
Press release no. 35/2008 of 18 March 2008
Order of 26 February 2008 – 1 BvR 1602/07; 1 BvR 1606/07; 1 BvR 1626/07 –
Standards of constitutional law applying to the admissibility of
photojournalism concerning the private and everyday life of celebrities
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 (Bundegerichtshof) 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 (1BvR 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.
This press release is also available in the original german version.
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