The Federal Court of Justice has now ruled (judgement of 11.11.2014, case reference: VI ZR 9/14) that if the participant of a public event has given their implied consent to the recording and dissemination of their images within the meaning of Section 22 sentence 1 KUG, the question of whether the requirements and exceptions of Section 23 para. 1 and para. 2 KUG apply or not.
An event portal is requested to submit a cease-and-desist declaration
A promotion agency hired hostesses to offer guests cigarettes as promotional merchandise at the “Casting Company Demolition Party” event. The event was hosted by a participant in the TV show “Germany’s next Topmodel”. Many prominent guests were invited. For this reason, photos of the party ended up on an event portal. After one of the hostesses saw her photo on the website, she sent a warning letter to the event portal operator and requested that they cease and desist from distributing the photos and reimburse her legal fees in the amount of €775.64. Without acknowledging any legal obligation, the event portal operator then issued a declaration to cease and desist, but refused to reimburse the legal fees.
Scope and range of the promotion order
The controversial photo shows the hostess offering cigarettes from a basket to an unknown guest on behalf of the promotion agency, with various prominent guests present being mentioned by name in the caption.
The hostess was given information material in advance with instructions about her work. According to this, interviews were expressly prohibited, but photographs with guests for advertising purposes were permitted. The information material also contained “sample images for photo documentation”, on which smiling hostesses with cigarette baskets were depicted together with other people. Any camera teams should be kindly referred to the public relations department of the promotion agency or its client.
Implied consent: Publication of images is permissible if the person depicted has been informed in advance of the existing possibility
The 6th Civil Senate considers the publication of the portrait to be lawful within the meaning of Section 23 para. 1 No. 1 KUG. For this reason, the claim to cease and desist the publication of the contested image is based on § 1004 para. 1 sentence 2, § 823 para. 1, para. 2 BGB in conjunction with. §§ Sections 22, 23 KUG, Art. 1 para. 1, Art. 2 para. 1 GG rejected.
In principle, the admissibility of the publication of photographic material is to be assessed according to the graduated protection concept of Sections 22, 23 KUG. This is the case if the person depicted has given their consent or if there is a historical event that makes consent unnecessary. This exception does not apply if the legitimate interests of the person depicted are violated. This concept complies with both constitutional requirements and the case law of the European Court of Human Rights.
The 6th Civil Senate comments on the question of whether a historical event within the meaning of Section 23 para. 1 No. 1 KUG is given and affirms this. The public’s legitimate interest in information does not only extend to the prominent participants, but also to the other circumstances of the event, as in the present case. It is difficult for the press to distinguish between prominent and non-prominent participants at larger events. In addition, it was unavoidable that service personnel would also be seen in the photo and film shoots.
Above all, however, the fact that the hostess was informed by her employer in advance of the event by means of information material about the nature of her work is an indication for the BGH that she had to expect photos of herself and their publication. This was even desired by her employer and its client for advertising reasons. Both the nature of the event and the contractual relationship with the hostess are indications for the BGH that she could have expected her photo to be published. These circumstances led the court to the assumption that the hostess had given her implied consent to the publication of the photos in accordance with Section 22 sentence 1 KUG, so that it was irrelevant whether the publication of the photos in question would have been permissible even without the hostess’s consent.
Data protection lawyers take a critical view of the BGH’s decision
The decision has caused concern from the point of view of data protection law and has also attracted criticism. Although the ruling appears very plausible and Section 22 para. 1 KUG allows for implied consent, the photographing of a person and the dissemination of the images constitutes the collection and processing of personal data within the meaning of data protection law. Therefore, the consent of the person concerned is required in accordance with Section 4 a BDSG. This must be in writing in accordance with Section 4 a BDSG.
Therefore, the stricter voices among data protection lawyers see no reason for an exception to the principle in the present case. In particular, the fact that the contract between the hostess and the agency was concluded in writing should be sufficient for the assumption that consent should also be given in writing within the meaning of Section 4a BDSG, according to the critics.
Caution is still required for event photography
It is widely held that the provisions of the Art Copyright Act supersede the provisions of the Federal Data Protection Act when it comes to the production, processing and distribution of photographic material.
It is true that the Federal Data Protection Act is a catch-all law, so that it can in principle be superseded by special regulations, cf. 3 BDSG. The prerequisite for this is equality between the two regulations (so-called congruence of facts). However, this does not exist between the Federal Data Protection Act and the Art Copyright Act. Insofar as Section 22 para. 1 S.1 KUG clearly states that the following standards relate to the distribution and display (i.e. further use) of images, the creation (i.e. recording, storing, sending and reproducing) of images is subject to the Data Protection Act. This means that the provisions of the Federal Data Protection Act must at least be used as a supplement to questions relating to consent.
Although the new supreme court rulings seem to indicate positive trends for event photography, this should be treated with caution. Anyone who attaches importance to the proper design of their internet platform or other source of information is still advised to obtain the consent of the person depicted (in writing) before publishing the photo.