Attorney Daniel in an SR3 Radio Interview
The publication of private information must always be carefully weighed.
Not least because content published digitally, in particular, can now only be controlled with significant effort – both in terms of personnel and technology.
In light of recent events: Jens Spahn’s Sardinia photo with a child
The discussion surrounding the photos of Jens Spahn with his child at the airport in Sardinia has prompted me to revisit this topic – which I discussed many years ago – along with the brief radio interview. Back then – in 2013 – the focus was once again on the Chancellor’s vacation photos in Italy; the legal assessment has not changed to this day. The fact that the article published in BILD, along with the photo, was immediately deleted on the grounds that it was “private” is difficult to understand. At least to the extent that the child’s face is “pixelated,” there would be no legal obstacles to publishing the photo along with the accompanying report on Jens Spahn. Furthermore, the photo was taken on public property (during the German Bundestag’s session week) and was therefore by no means taken “by ambush” or even by trespassing on private property.
The Interest of the Media and the Public
The question of whether private matters should be presented to the public must be considered not only by the individuals concerned but also by the media, particularly online and print media. It should be noted that the rights to privacy (right of personality, right to one’s own image) are not violated to the extent that the person concerned publishes the material themselves. This is because voluntary publication implies consent, for example, from the person depicted.
As a rule, this involves photos taken of A-, B-, or C-list celebrities that are then used throughout the media distribution chain – making the rounds.
Günther Jauch has already taken a clear stance and accused the media of “calculated legal violations.” This is because the publishers in question are well aware that reporting on details of Jauch’s private life would not be tolerated. Nevertheless, it happens all the time. The fact that the number of legal violations is decreasing is likely due in particular to his consistent refusal to tolerate infringements of his right of privacy. Even though Günther Jauch has apparently won all the lawsuits, the media still calculate that it pays to report on the matter and, in particular, to publish photos. A simple calculation. How can circulation be increased? In what ways can the legal violation be exploited? And what does it cost to infringe on these rights (knowingly)?
Such considerations lead to the conclusion that the infringement of personality rights is planned and occurs solely for economic reasons. So is this ultimately a form of organized crime? No! By definition, the media must not and should not exercise “self-censorship.” Reporting should and must take place. Media diversity is already in jeopardy, threatening to erode the last guardians of democracy. There can no longer be any talk of diversity in the media landscape – at least in the professional sphere. Regional offices are barely economically viable anymore. In the end, all media outlets get the same news from the major news agencies. So there’s no trace of diversity of opinion. But that’s another topic.
When private matters are revealed to the public
Unless you are classified as a relatively – or even absolutely – prominent figure in contemporary history due to your fame or exceptional abilities, you need give little to no thought to whether the publication, dissemination, or public disclosure of private matters – especially photos in which you are pictured – violates your rights. For, logically, common sense applies here as well – as it so often does. Of course, as is always the case with a few exceptions, you have the right to keep your private life private.
The situation is different, however, for celebrities or politicians. While the publication of private information does, on the one hand, affect the personality rights of the person concerned or depicted, on the other hand, such publication also serves the public interest in being informed – or wishing to be informed – about certain events.
The question of whether it “makes sense” to send just anyone out as a “photojournalist” to obtain (as inexpensively as possible) pictures of celebrities – in everyday situations – will not be explored further here. Otherwise, this article would quickly veer off into an entirely different topic. So, just briefly: No! It doesn’t. In my opinion, the people who shout “YES, IT DOES!” have no respect for the person living behind the “celebrity facade.” However, it also depends on how the person in question has behaved beforehand.
Federal Constitutional Court (Caroline of Monaco)
The Federal Constitutional Court ruled as early as 1999 that (even) top celebrities (“key figures in contemporary history”) have a right to privacy and that the scope of privacy is not limited solely to one’s own four walls. The Federal Constitutional Court expressed this as follows (BVerfG, ruling of Dec. 15, 1999, 1 BvR 653/96):
“A public figure, like anyone else, has the right—which must be respected by third parties—to retreat to places outside their own home where they wish to be alone or, at any rate, secluded from the general public. They may also do so in places that are freely accessible to everyone, i.e., public places.”
Unless the photo series is already being marketed by the celebrity as a “home story,” a balance must be struck between the public’s interest in information and the protection of privacy. In the specific case – which involved Caroline of Monaco – the Federal Constitutional Court held that the issue was one of “mere curiosity and sensationalism” as well as a “mere interest in entertainment.” Such an interest in entertainment, the Court ruled, is not worthy of protection when weighed against the right to privacy.
Media publishers – in the interest of their readers – usually see things differently. The discussion then quickly turns to fundamental issues such as freedom of the press, the prohibition of censorship, and the necessity of free reporting. These are, in fact, matters of great importance.
Back to the topic: Anyone who fails to defend themselves against a violation of their personal rights – and, if necessary, take the matter to court – runs the risk of having it held against them at a later date that they tolerated the (previous) publication and thereby implied their consent, even if not explicitly stated. For this reason, some celebrities, such as Günther Jauch, always take action against such publications to avoid being accused of having tacitly accepted – that is, tolerated – (potential) legal violations. In doing so, they would ultimately be exercising their right to successfully challenge the publication of private information.
I can therefore only advise you to protect your right to privacy and to have potential violations reviewed by a legal professional and, if necessary, pursue legal action.
I’d be happy to advise you – even if you’re toying with the idea of selling your soul to television. There are simply so many factors to consider that you should be aware of before making any important decisions.
Günther Jauch summed it up perfectly during the coverage of his wedding when he said:
“Some people use the media. They sell their marriage but then don’t want the divorce to be reported on two years later.
That’s not possible.”
The Chancellor’s 2013 Vacation in Italy
When the tabloid press – after having played the same little game back in 2006, among other times – once again published photos from the Chancellor’s vacation in Italy in the spring of 2013, Ms. Merkel had her displeasure officially stated.
Of course. The Chancellor must repeatedly take action against such publications – if only to avoid running the risk of no longer being able to take action against future publications. Otherwise, it would be claimed that Ms. Merkel tolerates the mass exploitation of her image (under the guise of the public’s interest in information), thereby forfeiting her right to intervene.
Attorney Daniel was interviewed on this topic (the publication of the Chancellor’s vacation photos) by Saarländischer Rundfunk, SR 3 Saarlandwelle.
You can listen to the recording from the “Guten Morgen” program aired on April 4, 2013, here.
I advise and protect your entirely legitimate interests in cases of violations of personality rights. I will provide you with comprehensive information on the options available to counter such violations, particularly those resulting from the unlawful publication of photographs. With my many years of experience in the media sector, you’ve come to the right place when it comes to legal violations in the media.