Bundesverfassungsgericht

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Constitutional standards governing the permissibility of publishing photos in press articles 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, 1 BvR 1626/07, 1 BvR 1606/07

The complainants are Princess Caroline von Hannover and two publishing companies. The magazine Frau im Spiegel had reported that Prince Rainier of Monaco [Princess Caroline’s father] had fallen ill and that Princess Caroline might attend a society ball; the magazine also featured an article on a popular winter sport resort. The articles included photos showing the complainant on holiday with her husband. The magazine 7 Tage reported that the complainant and her husband rent out a holiday villa in Kenya. The article included a photo showing the complainant on holiday with her husband.

Caroline von Hannover brought civil actions for injunctive relief against the publication of these photos in the press. The Federal Court of Justice (Bundesgerichtshof) only allowed the publication of the photo illustrating the article on her father’s illness. For the rest, the Federal Court of Justice upheld the injunctive orders imposed by the lower courts; in particular, it confirmed the order prohibiting publication of the photo used to illustrate the article on the couple’s holiday villa.

The constitutional complaints lodged by Caroline von Hannover and by the publisher of the magazine Frau im Spiegel (proceedings 1 BvR 1602/07 and 1 BvR 1626/07) were unsuccessful. The First Senate of the Federal Constitutional Court held that the Federal Court of Justice had balanced the interests of both parties in a manner that is not objectionable under constitutional law and that it had also taken into account the relevant requirements arising from the case-law of the European Court of Human Rights.

The constitutional complaint lodged by the publisher of the magazine 7 Tage (1 BvR 1606/07) was successful. The challenged decisions violate the publisher’s fundamental right to freedom of the press. It is not sufficiently clear from the reasons provided in the court decisions why the subject matter of the article, which concerns the rental of a holiday villa, does not justify the use of a visual portrayal of the complainant. 

In essence, the decision is based on the following considerations:

I.         The fundamental rights to freedom of the press and to the protection of one’s personality are not guaranteed without reservation. Freedom of the press can be restricted by general laws, which include § 22 ff. of the Art Copyright Act (Kunsturherbergesetz – KUG) and the legal principles on the protection of one’s personality under private law, but also the right to respect for private life enshrined in Art. 8 of the European Convention on Human Rights. At the same time, the Art Copyright Act and freedom of expression guaranteed by Art. 10 of the Convention restrict the protection of one’s personality, as part of the constitutional order.

The protection of freedom of the press also extends to ‘mere entertainment’. Entertainment serves an important purpose in society, for example by conveying images of reality and providing subjects for debate that may spark a process of discussion relating to life philosophies, values and habits. The scope of protection of freedom of the press also includes entertainment media coverage on the private and everyday life of celebrities and their social relationships, particularly persons who are close to them. Restricting all coverage of these persons to their exercise of official functions would constrain freedom of the press to a degree that is incompatible with Art. 5(1) of the Basic Law (Grundgesetz – GG). Such coverage may not just concern behaviour that is scandalous or morally or legally questionable; normal everyday life and the unobjectionable conduct of celebrities, too, may be brought to the attention of the public if this serves the formation of public opinion on matters of public interest.

II.      Freedom of the press confers upon the mass media the right to decide themselves what they consider worthy of coverage. In so doing, they must take into account the protection of personality rights of affected persons. In the event of a dispute, it is incumbent upon the courts to carry out the decisive balancing of the public’s interest in obtaining information against the opposing interests of the affected persons. When weighing the interest in obtaining information, however, the courts must refrain from assessing the contents of the coverage in question as to its value and seriousness; the courts have to limit themselves to reviewing and determining to what extent the coverage might contribute to the formation of public opinion. In order to determine the weight of the interest in protection of one’s personality, the situation in which the person concerned is photographed and how they are portrayed is also significant, as are the circumstances under which the photo was taken, for instance in secret or as a result of persistent tracking. The need to protect the general right of personality can take on greater weight even if affected persons are not in a secluded space, with, for instance, media coverage showing the photographed person relaxing or letting go outside the context of professional or everyday life, in situations where they may reasonably assume that they will not be exposed to photographers. The need for protection is greater nowadays owing to advances in the field of image technology and the availability of smaller cameras.

Statements in or by the press generally seek to contribute to the formation of public opinion. Yet the fundamental right in Art. 5(1) GG does not prescribe that any visual depiction taken from the private and everyday life of celebrities must generally be assumed to contribute to the formation of opinion. The Federal Constitutional Court has thus far not recognised that the press may unrestrictedly take photos of figures of contemporary society; rather, it has only considered the publication of photos to be justified to the extent that the general public would otherwise be deprived of opportunities to form opinions. Constitutional law does not guarantee a right to photograph figures of contemporary society at any time without restriction for media purposes in all situations except when they are in a secluded space.

III.   It is for the ordinary courts to determine the informative value of coverage with photo illustrations in the specific case on the basis of its relevance to the formation of public opinion, and to balance freedom of the press against the impairments of the right of personality resulting from taking and disseminating the photos. The role of the Federal Constitutional Court is limited to reviewing whether the ordinary courts, in interpreting and applying ordinary law provisions, particularly when balancing conflicting legal interests, have sufficiently taken into account the impact of fundamental rights and the standards set by the European Convention on Human Rights, which must be taken into consideration under constitutional law. The fact that different conclusions could be reached in the balancing of legal positions is not sufficient to justify a correction of the ordinary courts’ decisions by the Federal Constitutional Court.

IV.   Based on these standards, the following applies in the present case:

1.        Constitutional law does in principle not prevent the Federal Court of Justice from deviating from its case-law when assessing the legal requirements subject to which photo reports are permissible. It was within its powers to modify its concept of protection by dispensing with ‘figures of contemporary society’ as a legal category that was previously developed by the court with reference to legal scholarship. As the category of figures of contemporary society is not mandated by the Constitution, the ordinary courts are free under constitutional law not to make use of this notion at all in future or to only make limited use of it, and to decide instead by means of a balancing on a case-by-case basis whether the published image belongs to the “domain of contemporary society”.

2.        Based on the standards set out above, the constitutional complaints lodged by Caroline von Hannover and by the publisher of the magazine Frau im Spiegel are unfounded. The Federal Court of Justice balanced the affected interests of both parties in a manner that is unobjectionable under constitutional law and also took into account the relevant requirements arising from the case-law of the European Court of Human Rights. In particular, it is not objectionable that the Federal Court of Justice – in accordance with the standards developed by the European Court of Human Rights in its case-law – held that the illness of the reigning Prince of Monaco constitutes an event of public interest that has a sufficient link to the published image.

3.        By contrast, the court orders prohibiting the publisher of the magazine 7 Tage from including a visual portrayal of the complainant in its article on the holiday rental of her villa violate freedom of the press. The courts failed to assess more closely the informative content of this article,  the subtitle of which reads “Even the rich and beautiful are frugal. Many rent their villas out to paying guests”.  The article did not focus on the description of a holiday scene as part of private life. Rather, it provided a report on the couple renting out their holiday villa – and on similar activities by other celebrities – with comments containing value judgments that could give rise to social criticism on the part of readers. The scene shown in the photo does not suggest that Caroline von Hannover was photographed in the course of an activity that is particularly typical of relaxation and consequently requires a greater degree of protection from media attention and portrayal. The injunction prohibiting the publication of this photograph, which had been upheld by the Federal Court of Justice, is therefore reversed and the matter is remanded for a new decision on the basis of the standards set out by the Federal Constitutional Court.