In a decision dated June 2, 2017, the Higher Regional Court of Cologne ruled (Ref.: III-1 RVs 93/17) that a photojournalist is liable to prosecution if he passes on an unpixelated photo against the will of the person depicted and does not work towards its pixelation.
This is according to a recent press release from the Higher Regional Court of Cologne.

Photojournalist shares unpixelated photos

The case before the Higher Regional Court of Cologne concerned the disclosure of an unpixelated photo.
A photojournalist who was working on a television documentary about Ebola, among other things, had taken some photos of a supposed Ebola patient at the hospital in Aachen.
He only noticed the patient in the hospital by chance and overheard the words “Ebola” in connection with him.
He then followed the patient, who was wearing a face mask and gloves, into the treatment room and took photos of him with his smartphone.

Photo taken against the will of the person depicted

After the photojournalist had more or less obviously taken some photos, the patient explained to him that he did not want any photos.
He also asked him to delete the photos.

The doctor treating the patient also tried to have the photo deleted.
She also explained to the photojournalist that the suspected Ebola case had not been confirmed.
The police, who were subsequently called, were also unable to persuade the photojournalist to delete the photos.

Together with the information about the incidents, the photojournalist sold the images in unpixelated form to an editorial office.
There was no discussion as to whether the person depicted was to be made unrecognizable or had consented to the creation or publication of the photo.

Photos also published unpixelated by the editorial team

A short time later, the editorial team published the photo of the affected person wearing gloves and a face mask under the title “Ebola suspect” in an online edition of the newspaper.
The person pictured was fully recognizable and not pixelated.
Only the photo in the print edition had been partially blurred.

After the district court sentenced the journalist to a fine of 25 daily rates for the unauthorized distribution of a portrait, the regional court increased the daily rates to 40 on appeal. The journalist’s appeal was then unsuccessful.

Photojournalist violates the Art Copyright Act

The 1st Criminal Senate of the Higher Regional Court of Cologne confirmed that the photojournalist had violated the provisions of Sections 33 para.
1 no. 1, 22, 23 KUG.
According to these, it is punishable to distribute photos without the consent of the person concerned.
The distribution of photos from the field of contemporary history is also only permitted if this does not violate the legitimate interests of the person depicted.

Distribution of an unpixelated photo violates the general right of personality

In the opinion of the Cologne Higher Regional Court, reporting on the treatment of suspected Ebola patients could certainly be classified as contemporary history.
However, the distribution of photos without any blurring or alienation was a massive infringement of the general right of personality of the person depicted.
The latter would have been recognizable to everyone as an alleged Ebola patient in a striking and at the same time unworthy manner.

At the same time, the photojournalist’s actions were not covered by the constitutionally guaranteed freedom of the press, because in such a case it is not the public interest in information that prevails, but the general personal rights of the person depicted.

Criminal liability of the photojournalist

The photojournalist was also criminally responsible for the distribution of the photo.
He alone had known about the actual incidents in the hospital and was aware of the intention of the person depicted not to publish the photos.
Accordingly, he was obliged – if he was not in a position to pixelate the images himself – to at least inform the editorial team that the images had to be pixelated.

The Regional Court and Higher Regional Court considered the fact that the images appeared completely unpixelated in the online edition and only insufficiently in the print edition to be an aggravating factor.
This was despite the fact that the doctor had already dispelled any suspicion of Ebola when the photo was taken.