In three rulings from February 9, 2017, the Federal Constitutional Court commented on the balance between freedom of the press and privacy (1 BvR 2897/14, 1 BvR 790/15; 1 BvR 967/15):
The civil courts must take sufficient account of the weight of freedom of the press when reporting on celebrities who are of great public interest.
The decisive factor in the assessment is whether the person depicted is in a public space.
If the person is in a situation characterized by spatial privacy, the weight of the protection of personality is increased.
Photo coverage in the press
All three proceedings concerned the publication of photographs in which Jörg Kachelmann was pictured with his defense lawyer.
At the time the photographs were published, proceedings were underway against him on suspicion of rape.
This ended with an acquittal.
In proceedings 1 BvR 967/15, Springer Verlag lodged a constitutional complaint against the judgment of the Higher Regional Court of Cologne (v. 19.12.2013 – 15 U 64/13).
It essentially complains of a violation of the freedom of the press.
This is because the OLG prohibited the publisher from publishing a picture.
This shows Kachelmann on the sidewalk a few meters from the entrance to his defence lawyer’s office.
In addition, the publisher was prohibited by the court from publishing two further pictures.
These show Kachelmann in the courtyard of his defense lawyer’s office.
The prohibition was justified on the grounds that the pictures were merely of an entertaining nature and showed the presenter in his private sphere.
Springer-Verlag also appealed against this by means of a constitutional complaint (1 BvR 2897/14, 1 BvR 790/15).
Depiction of a person on public paths lawful
With regard to the image of Kachelmann on the sidewalk, the constitutional complaint in this regard was successful.
Since the Caroline case law, the graduated protection concept has applied to reporting on events with a strong public interest.
Those who are visibly in the social sphere in the context of the event are less worthy of protection than those who are in the private or even intimate sphere.
The photograph of Kachelmann on the sidewalk does not yet affect his privacy.
He is in a publicly accessible area and must therefore always expect to be seen by third parties.
Therefore, only the social sphere is affected, which is why a weighing up of the public interest in reporting and personal rights leads to the conclusion that image reporting is lawful.
Staying in a courtyard of a law firm includes privacy
The situation is different in the cases in which Kachelmann was pictured in the courtyard of the law firm.
Here he was in a situation characterized by spatial privacy.
The location was also only visible to the public to a very limited extent.
The image therefore encroached on Kachelmann’s privacy, which meant that the right of personality was given far greater weight in the weighing of interests.
As a result, the prohibition of reporting by the Cologne Higher Regional Court was lawful in this case and the publisher’s constitutional complaint was unfounded.
Precise balancing of press freedom and privacy
In our view, the decisions of the Federal Constitutional Court are very welcome.
They show the media-friendly line of the Federal Constitutional Court, but at the same time set out the comprehensible limits.
Celebrities who are in the public eye as part of an event of contemporary history must always expect reporting and must tolerate it.
However, the assessment still remains a case-by-case decision.
The decisions of the Federal Constitutional Court since the Caroline case law have gradually shown in individual cases when privacy can be affected and when it is not.
In cases of uncertainty and borderline cases, it is therefore always advisable to consult a lawyer who is familiar with current case law.