On 29 September 2020, the Federal Court of Justice (FCJ) ruled on the admissibility of identifying photojournalism on the occasion of the riots at the meeting of the group of twenty leading industrial and emerging countries at the beginning of July 2017 in Hamburg (G20 summit) (cf. FCJ, ruling of 29 September 2020 – VI ZR 449/19).

Facts of the case

The plaintiff, a private individual, brought an action for an injunction against a major tabloid on the basis of an identifying report. The background was the extensive reporting of the tabloid in connection with the G20 summit in Hamburg, during which there were also numerous demonstrations with considerable riots, which still occupy the criminal and civil courts today.

On 10 July 2017, the defendant published a report announced on its front page with the headline  “WANTED! Who knows these G20 criminals?”.
In the article it reads: “WITNESSES WANTED! Please contact the police

[…] What is going on in these serious criminals? They claim that they want to demonstrate against the G20 summit. Then they shoot steel bullets at police officers, which even penetrate the armour of a water cannon. They accept the death of people. […] Two helicopter pilots were blinded by laser pointers, one helicopter was fired at by a flare. The list of crimes committed by rioters in Hamburg is much longer. […]. Pictures from a police helicopter show how hooded guards hurl burning Molotov cocktails from house roofs at approaching officers. Other hooligans fired flares into the crowd, smashed windows, set cars on fire, built barricades, set fires right next to houses, looted shops or marched armed in groups through the city – all acts that can be punished as a serious breach of the peace (at least six months in prison). […] The Hamburg police are calling on people to upload pictures of the rioting on the website […] – or to contact the nearest police station. The investigators assure that all information will be treated anonymously. Only in urgent emergencies call the 110th [newspaper] supports the police, asks: Who knows the people in these pictures? They are strongly suspected of having committed serious crimes at the G20 summit”.

The verbatim report is accompanied by a total of thirteen pictures framing the text and showing various people in connection with the riots. The captions briefly describe and in some cases comment on the photographically documented behaviour (mainly throwing objects and stealing goods from shops). In some cases, details of the heads of these people are also shown enlarged. The following photographs of the plaintiff were taken in the context of this photojournalism, whereby the plaintiff in the large picture is the person photographed from behind, not wearing a mask, in a slightly stooped posture and with his head lowered, and in the small picture the person photographed from the front and diagonally above with his face covered about halfway.

(Source: https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=7a8fc385f67b93f4644342755d0e9cf9&nr=110997&pos=1&anz=9)

Preliminary proceedings initiated against the plaintiff were discontinued pursuant to § 153 (1) StPO, i.e. on the grounds of insignificance. The Regional Court of Frankfurt am Main, which was initially seized of the case, ordered the defendant to refrain from making the plaintiff recognisable in connection with the search for the G20 criminals by distributing her portrait. The Appeal Court of Frankfurt am Main dismissed the tabloid’s appeal, but allowed the appeal to the FCJ.

Grounds for the decision of the FCJ

The Federal Court of Justice decided – in contrast to the two lower courts – that the plaintiff has no claim against the tabloid under Section 1004 (1) sentence 2 by analogy, Section 823 (1) and (2) of the German Civil Code (BGB) in conjunction with Sections 22, 23 of the German Copyright Act (KUG), Art. 2 (1), Art. 1 (1) of the German Constitution (GG) to refrain from reproducing the image in the context of reporting. The FCJ based its decision on the following argumentation:

Portraits of a person may in principle only be disseminated with that person’s consent, which is not available in this case (Section 22 sentence 1 KUG). There are, however, exceptions to this principle under Section 23 (1) KUG, provided that the dissemination of the portrait does not violate the legitimate interests of the person depicted (Section 23 (2) KUG).

A portrait within the meaning of the KUG only exists if the person depicted is recognisable, about which there were some doubts due to the poor picture quality. However, the plaintiff in the present case could rightly rely on the fact that she could be recognised by her friends and acquaintances and in combination of both photographs on the basis of her body shape and posture, hairstyle and facial features.

As the next point, the Federal Court of Justice had to examine whether the photographs were portraits from the field of contemporary history (Section 23 (1) no. 1 KUG), for whose dissemination the consent of the plaintiff in favour of the defendant would have been dispensable. In the context of this examination point, a weighing had to be made between the rights of the plaintiff under Article 2 (1), Article 1 (1) of the Basic Law, Article 8 (1) of the ECHR on the one hand and the rights of the press, i.e. of the defendant, under Article 5 (1) of the Basic Law, Article 10 (1) of the ECHR on the other. The FCJ must therefore weigh up the general right of personality against the freedom of the press.

Within the framework of this weighing, the Federal Court of Justice initially confirmed that the interest in information is always the primary consideration for daily reporting on criminal offences or similar misconduct. According to the Federal Court of Justice, anyone who breaks legal peace and attacks or injures fellow human beings or the legal interests of the community through this act and its consequences must in principle tolerate the public interest in information, which he himself has aroused, being satisfied in the usual ways. The Federal Court of Justice then went on to point out, however, that the impairment of the right of personality must be in reasonable proportion to the seriousness of the misconduct and its other significance for the public, for which, of course, some doubts existed in the present case due to the discontinuation of the plaintiff’s criminal proceedings. However, according to the Federal Court of Justice, a lower public interest in information on minor misconduct in individual cases could be increased to such an extent by special features, for example in the person of the perpetrator, the type of misconduct or the course of the offence, that the interest of the perpetrator in protecting his or her personality would take second place. This is precisely what the Federal Court of Justice rightly assumed in the present case constellation:

The massive riots in public space on the occasion of the G20 summit in Hamburg and the circumstances surrounding them were “of very high social interest and subject of public discussion from various perspectives“. This concerned in particular “the aspects addressed by the defendant, which persons took part in them, how they behaved, what effects this had and that the police asked for the support of the public in clearing up the event“. Even the additionally enlarged head of the plaintiff does not change the factual content and the information value of the reporting, as it is only used as an editorial design and stylistic device.

On the plaintiff’s side, the FCJ assumed that the plaintiff could only be identified by a comparatively small circle of persons and that the plaintiff had been portrayed in public, i.e. in her social sphere. Even if the publication of the picture incriminates the plaintiff, it does not lead to stigmatisation, exclusion or pillory. Finally, the tabloid’s appeal is limited to supporting the police by providing clues, which means that the “call for information” is essentially an editorial stylistic device.

In conclusion, the Federal Court of Justice thus assumed that no legitimate interest of the plaintiff was infringed by the dissemination of the portrait.

Significant strengthening of freedom of the press

Despite the lurid headline “WANTED! Who knows these G20 criminals?” on the front page and the call for a search documented, among other things, by portraits of the plaintiff, the Federal Court of Justice decided that the plaintiff’s general right of personality must take second place to the basic right to freedom of the press. Decisive factors in this decision were the public interest that existed due to the massive riots and the fact that the plaintiff was only identifiable by a small circle and, in addition, had, as it were, voluntarily entered the media attention. The judgement must therefore be seen as strengthening the freedom of the press in the context of identifiable photojournalism.