Christian Wulff, a former German Federal President who resigned in February 2012, caught the attention of the public in May 2015 with his announcement that he was back together with his ex-wife Bettina Wulff. Following this, the press published a photograph of him pushing a cart at the parking lot of a supermarket next to his wife, Bettina Wulff. Mr. Wulff felt hurt in his right to privacy. He filed a lawsuit aiming to prohibit the publication of this private photo. In first and second instance Mr. Wulff was successful; the German Federal Court now overruled the previous decisions and decided that Mr. Wulff’s right to privacy were not infringed by the publication of the photo.

Legal Assessment

The German Constitution protects both individuals’ private sphere and the freedom of press. Moreover, the German Copyright Act for Art Work and Photography (“Kunsturhebergesetz”) stipulates that the press may publish photos where the depicted person has agreed with its publication (Section 22). Without such consent, publication is only allowed if the image refers to history, and where no legitimate interest of the depicted person is infringed (Sections 23(1) no. 1 and Section 23(2) of the same law). The German Federal Court thus had to decide between the principles of the German Constitution, and whether the legal conditions for the lawfulness of publication of the photo without consent of Mr. Wulff were fulfilled in the present case.

On 6 February 2018, the German Federal Court ruled that the publication of the photo is lawful. The image refers to a historic figure and could thus be published without his consent, pursuant to Section 23(1) no. 1 of the German Copyright Act for Art Work and Photography. The interest in Mr. Wullf’s person has not expired with his resignation in 2012, but instead, Mr. Wulff remains a public figure, still attends public events and is recognized in his position as a former Federal President of Germany. Moreover, no legitimate interest of Mr. Wulff exists in avoiding the publication of the photo. The picture was taken in a public space and is to be attributed to Mr. Wulff’s social sphere. It does not show Mr. Wulff in an unkind or private way, but would rather convey the image of a providing father.

Another key reason for the decision of the Federal Court was the fact that Mr. Wulff informed the public himself about his private and family life not only in the past but also in the present, which shows his content to having these issues publicly discussed. Furthermore, the journalistic worth of the article is the discussion about the distribution of roles between man and woman and especially between husband and wife, which is a discussion of public interest.

Conclusion

Once a show-off, forever prey of paparazzi? Can – or should – the past consent of famous people to public discussions about their private life lead to their every step being followed and photographed? Most people would probably tend to answer negatively. In the present case, however, Mr. Wulff was the one who released to the press very private news about his relationship with his wife. This was the trigger to the paparazzi, as considered by the Federal Court. The present decision sends a clear sign: there is already a general public interest in following public figures; their privacy is thus already limited when compared to other people that do not occupy public positions. If they show they are open to being on everyone’s tongue, they shall carry the consequences.

BerlinThe former governing mayor of Berlin, Klaus Wowereit, a member of the German Social Democratic Party, SPD, has suffered a legal defeat in his year-plus battle with the German publishing house Axel Springer. On 27 September 2016 (VI ZR 310/14), the German Federal Court of Justice ruled that pictures of Wowereit in a Berlin bar on the eve of a vote of no confidence against him could be published in Springer’s daily magazine BILD without the former mayor’s consent.

The Facts of the Case

With the caption “Before the vote of no confidence, he ended up in the Paris Bar…” (“Vor der Misstrauensabstimmung ging´s in die Paris-Bar …“), BILD published three pictures of Wowereit and some friends at Berlin’s Paris Bar, a well-known meeting place for VIPs and celebrities in Berlin, on 11 January 2013, the evening before a parliamentary vote of no confidence against him. The vote was initiated in response to increasing criticism over delays and cost overruns for the city’s new Berlin Brandenburg Airport. The pictures accompanied an article on Wowereit’s political career titled “From partying mayor to crash pilot” (“Vom Partybürgermeister zum Bruchpiloten“).

No Legitimate Interests of the Depicted Have Been Harmed

Upon the appeal by Springer, the German Federal Court of Justice dismissed Wowereit’s claim for a cease-and-desist order. The court ruled that the pictures were all part of the “sphere of contemporary history” (section 23 para. 1 no. 1 of the German Art Copyright Act) and, therefore, could be published by Springer without Wowereit’s consent (section 22 of the German Art Copyright Act). In connection with the press coverage of a significant political event (here, a vote of no confidence), the publication of photographs, while showing the then-governing mayor in a rather private situation, could be justified with serving the general public’s interest in political information. The contested publication also did not harm the legitimate interests of the depicted ex-mayor (section 23 para. 2 of the German Art Copyright Act). In view of what was happening in Wowereit’s political career at the time, Wowereit could not have expected to be shielded from the prying eyes of the press or the public.

 

This article was originally published on AllAboutIP – Mayer Brown’s  blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.

Divorce - Sad young couple holding billboard sign with break love heart, concept for divorce

On 13 October 2015, the German Federal Court of Justice (VI ZR 271/14) ruled that ex-lovers can demand the deletion of intimate or revealing photographs and videos once a relationship is over. In the case concerned, a man, a professional photographer, had taken several erotic photos and videos of his female partner, to which she had consented at the time. The pictures and videos showed the woman naked both during and after sexual intercourse. She had also taken some of the pictures herself. After their relationship ended, the woman demanded that all of the intimate media be deleted, but the man refused to do so.

Even though the woman had consented to the pictures being taken at the time, and the man, to date, had shown no intention of reproducing the pictures or putting them online, the Federal Court of Justice ruled that the man still did not have the right to keep copies of those pictures and videos. Most notably, the Court held that the woman’s consent to create the photos in question did not rule out her withdrawing that consent in the future because intimate photographs were related to the core of her personality right (“intimate sphere”) as protected by the German Constitution (“Grundgesetz”) under Articles 1(1) and 2(1). The protection afforded to the intimate sphere outweighed any copyright protection or other professional or artistic freedoms afforded to her ex-partner photographer.

However, the Federal Court of Justice denied the woman’s request to force her ex-boyfriend to delete other, non-erotic photographs he had taken of her during their relationship. The Court could not see a personality right infringement with regard to everyday type or holiday photographs, since the woman’s reputation would not be lowered in the view of third parties in case such photographs were to be made public.