In a ruling dated April 10, 2018, the Federal Court of Justice ruled on the permissibility of distributing unauthorized film footage from organic chicken sheds (case reference: VI ZR 396/16).
In the specific case, the dissemination of such recordings did not violate the entrepreneur’s right of personality or the right to the established and exercised commercial enterprise.
The reason for this was that the public’s interest in information and the right to freedom of expression and media freedom prevailed.

Animal rights activist films unlawful footage in organic chicken house

The lawsuit was brought by a producer association of eleven organic farms.
They specialized in the marketing of organic products and operated large-scale arable farming and chicken farming for this purpose.
On the nights of May 11 to 13, 2012, an animal rights activist entered the chicken coops of two farms and made some explosive film recordings.
Chickens with only incomplete plumage and also dead chickens were visible.

ARD broadcast unauthorized footage

The animal rights activist provided these recordings to the defendant, which broadcast them on September 3, 2012 in the ARD Exklusiv series under the title “Wie billig kann Bio sein” and on September 18, 2012 as part of the program Fakt under the title “Biologische Tierhaltung und ihre Schattenseiten”.
The two reports primarily dealt with the effects of the inclusion of organic products in supermarkets and discount stores.

The Regional Court and the Higher Regional Court (Ref.: 324 O 400/13; 7 U 11/14) upheld the action brought by the producers’ association.
This meant that the packaged goods, the dead chickens and the chickens with only incomplete plumage as well as the interior photograph of a chicken coop could no longer be shown publicly.

BGH: Publication of unauthorized film recordings permissible

The BGH now disagreed with the Hamburg judges and upheld the defendant’s appeal.
The dissemination of such film recordings did not infringe the producer association’s right of personality or its right to its established and exercised business operations.

In the abstract, the film recordings were likely to damage the reputation and economic standing of the plaintiff in the public eye.
The broadcasting of the unauthorized film recordings also affected the interest of the business association in keeping its internal sphere secret from the public.

The public’s interest in information outweighs the entrepreneur’s personal rights

However, in the opinion of the judges in Karlsruhe, such interference was not unlawful.
This is because the public’s interest in information pursued by the media and their right to freedom of opinion and media freedom outweighed the interests of the business association.
This applies despite the fact that the published footage was illegally recorded by the animal rights activist.
After all, the defendant had not participated in the trespass in any way.

No trade or business secrets of the plaintiff were disclosed with the contested recordings.
Rather, the recordings merely document the type of chicken farming in which the public has a legitimate interest.
The footage of the animal rights activist also accurately informs viewers about the production of organic products for the wholesale trade without spreading untrue factual claims.

Contribution of the press to the intellectual battle of public opinion

By broadcasting the footage, the defendant had made a significant contribution to the intellectual battle of opinion on an issue that significantly affects the public.
The film reporting dealt critically with the mass production of organic products from the point of view of consumer information and animal husbandry.
In addition, the reporting illustrates the existing discrepancy between what many consumers think is the case and the actual circumstances of the production of organic products.

In its decision, the BGH also emphasizes that it is the task of the press, as the “watchdog of the public”, to deal with these aspects and inform the public.
The function of the press is not merely limited to uncovering criminal acts or breaches of the law.