User:Pajz/Country specific consent requirements
(A) Taking a picture of a person in a public space: Mostly not problematic, can be under certain circumstances.
- Not explicitely prohibited, but it is generally held that it may constitute a violation of the general right to personality as derived from section 823 (1) BGB (translation); whether or not this is the case can only be determined after “consideration of all circumstances of the specific case and balancing of all legally protected interests, taking into account all legal positions of the involved parties, in particular those protected by the constitution.” As a rule of thumb, however, the general right to personality will typically not be infringed in cases where the publication itself would be rightful, probably making this less of an issue for Wikimedia Commons.
- Naturally, additional provisions apply for non-public spaces, such as section 201a (1) StGB (translation), according to which “whosoever unlawfully creates or transmits pictures of another person located in a dwelling or a room especially protected from view and thereby violates their intimate privacy shall be liable to imprisonment not exceeding one year or a fine” (examples for such a room may be showers, changing rooms, or private gardens enclosed by a high fence).
(B) Publishing pictures of a person in a public space: Consent required, with few exceptions
- Under section 22 KUG, first sentence, “pictures can only be disseminated or exposed to the public eye with the express approval of the person represented.” Section 23 (1) KUG helds that pictures relating to contemporary society (“Bildnisse der Zeitgeschichte”) are excluded from that rule. Under section 23 (2) KUG, that exception does not apply where the dissemination interferes with a legitimate interest of the person represented.
- Exceptional provision of section 23 (1) KUG: Since 2004, German courts do no longer apply the concept of “figures of contemporary society ‘par excellence’” (“Absolute Personen der Zeitgeschichte”). It had previously been held for this group of persons (consisting of famous politicians, celebrities, well-known scientists etc.) that it was legitimate to publish pictures of them in a public space not subject to prior consent, irrespective of the presence of an event of contemporary society (apart from the mere depiction of the person). Starting 2004, the Federal High Court has employed a different approach to § 23 (1) KUG. The picture of even a former figure of contemporary society “par excellence” does not in itself automatically generate a legitimate public interest; it must be related to an event of contemporary society and that relation has to justify the limitation of their personality rights. In assessing the hence-decisive informative value of the picture for the public, the accompanying commentaries also need to be taken into account.
The changed legal practice is problematic for the use on Wikimedia Commons in that it requires a context that often will not be provided on the image description page. An illustrative example from case law is a decision by the High Court from 2010. A German magazine published several photos of Charlotte Casiraghi (the daughter of Princess Caroline of Hannover) at the Monaco Rose Ball; the accompanying text was concerned not only with Mrs. Casiraghi, but also with other attendants of the event. The Court found that the rose ball is an event of contemporary society and may generally be reported on, and decided that the use of the picture fulfills the required informative interest of the public. However, it, importantly, noted that “such interest could only be denied if the accompanying article in itself did not constitute reporting on the rose ball as an event of contemporary society.” In other words, it was crucial for the rightfulness of the publication of the photo that there was an accompanying text on the event that it illustrates. In a 2005 decision, the Court already had to decide whether photos of Mrs. Casiraghi showing her at a horse show could be used to illustrate an article on her personal life. The Court found that “the photograph itself does not give any indication for a relation to the concrete event and illustrates a text that does not provide reporting on the event itself, but deals almost exclusively with the plaintiff’s outer appearence.” Application of § 23 (1) KUG was hence denied. To conclude, “Consequently, as regards the admissibility of photojournalistic articles, the Senate handing down the judgement has already taken into account on several occasions whether the display of a photograph created at an event which falls within the sphere of contemporary history as part of photojournalistic reporting is merely used as an opportunity to report on the person depicted, or whether the photojournalistic reporting is merely used as an opportunity to report on the widely-known person,
Der erkennende Senat hat dementsprechend hinsichtlich der Zulässigkeit einer Bildberichterstattung bereits mehrfach berücksichtigt, ob bei der Presseberichterstattung die Abbildung eines anlässlich eines zeitgeschichtlichen Ereignisses gefertigten Fotos nur zum Anlass zu Ausführungen über eine Person genommen wird oder die Berichterstattung nur dazu dient, einen Anlass für die Abbildung prominenter Personen zu schaffen, ohne dass die Berichterstattung einen Beitrag zur öffentlichen Meinungsbildung erkennen lässt; in solchen Fällen ist es nicht angezeigt, dem Veröffentlichungsinteresse den Vorrang vor dem Persönlichkeitsschutz einzuräumen”
- Special cases:
- Pictures of minors: If the subject is incapable of contracting (section 104 BGB (translation)), consent is to be given or refused by their legal representative (typically the parents). If the subject has limited capacity to contract (i.e. has reached the age of seven), in order for their declaration of consent to be valid, the consent of the legal representative to that declaration is required. It is not clear from the text of the law whether the legal representative could consent to publication against the child’s will, but the predominant opinion among scholars tends to be that at least from age 14 onwards, if either of the two refuses to give consent, the other’s declaration of consent becomes void (“Doppelzuständigkeit”).
- After the death of the subject: Pursuant to section 22 KUG, third sentence,
- Revocability of consent: Consent can be revoced subject to there being an important reason, in particular if the material no longer reflects the subject’s conviction and hence infringes their personality rights, so that the subject can no longer be expected to be bound by their previously-granted permission. A classical example from the literature would be the case of a photograph of a prostitute shown in the context of her work if the subject has now entirely retired from the milieu. However, the Munich Higher Regional Court held in 1989 that a young actress wishing to revoce consent to
- Pictures of the uncovered body: Further provisions apply to pictures of the uncovered body. Even if the subject is not identifiable, publication will often still be barred on grounds of the general right to personality.
- Definition of “picture:” A picture in the meaning of the KUG does not need to be a portait (in the narrow sense of the word). A caricature, painting, a statue or a puppet may likewise be considered pictures if they allow for the identification of the person to be depicted. It is furthermore irrelevant how the person can be identified. For instance, the Federal Supreme Court decided in 1979 that a soccer goalkeeper photographed from behind could be recognized by “someone familiar with the soccer team of which he was a member, particularly because of his physique, posture, and haircut,” and that “this is sufficient for the classification as a picture in the meaning of § 22 KUG.” In a 1969 ruling, the Düsseldorf Higher Regional Court decided that a photograph is a picture in the meaning of § 22 KUG—among other things—due to the presence of the person’s horse (which “some will know and reckognize”) and a former employee of the hunting club of which he is a member. Another possibility is that the text accompanying the image allows for the identification of the individual.
|Literature (referenced from footnotes)|
- Schertz in Götting/Schertz/Seitz, Handbuch Persönlichkeitsrecht, § 12 (10).
- Schertz in Götting/Schertz/Seitz, Handbuch Persönlichkeitsrecht, § 12 (10).
- Schönke/Schröder/Lenckner/Eisele, § 201a (7); Damm/Rehboch: Wiederruf, Unterlassung und Schadenersatz in den Medien (143).
- There have been significant changes in jurisdiction over article 23 in the wake of the ECtHR’s holding in Von Hannover v Germany (2004) where it found the German courts’ long-standing practice in breach of the European Convention on Human Rights. Since then, the Federal Court of Justice has established the pracice explained in the following, found constitutional in 2008 by the German Constitutional Court in BVerfG GRUR 2008, 539 – Caroline von Hannover.
- BGH GRUR 2007, 523, 525 (VI ZR 13/06) – Abgestuftes Schutzkonzept.
- Schertz in Götting/Schertz/Seitz, Handbuch Persönlichkeitsrecht, § 12 (62) following BGH GRUR 2007, 523, 526 (VI ZR 13/06) – Abgestuftes Schutzkonzept.
- Schicker/Loewenheim/Götting, § 22 KUG/§ 60, 42; Dreier/Schulze, KUG § 22, 26; Wandtke/Bullinger/Fricke, KunstUrhG § 22, 14; Ahlberg/Götting/Engels, BeckOK KunstUrhG § 22, 41, 42; LG Bielefeld ZUM 2008, 528 (full text).
- Schertz in Götting/Schertz/Seitz, Handbuch Persönlichkeitsrecht, § 12 (5).
- OLG Düsseldorf GRUR 1970, 618 (20 U 80/69).
- Schertz in Götting/Schertz/Seitz, Handbuch Persönlichkeitsrecht, § 12 (7).