Tenor:
1. the applicant’s immediate appeal against the order of the 5th Civil Chamber of the Oldenburg Regional Court dated April 9, 2018 is dismissed
2. the applicant shall bear the non-reduced court fee for the appeal proceedings; extrajudicial costs shall not be reimbursed (Sections 97 (1), 127 (4) ZPO in conjunction with No. 1812 KV zum Gerichtskostengesetz).
Reasons:
The applicant and Mrs. … are the divorced parents of …, born on … . The mother has the right to determine the child’s place of residence; the parents also have joint custody of … . The mother is married to the respondent in her second marriage and lives with her daughter on his farm, for which he runs the website www…de. The petitioner complains that the respondent published photos of the child on this website without his consent.
The applicant is seeking legal aid on behalf of his daughter … for an intended action with the following applications,
1.) to prohibit the defendant from continuing to disseminate photographs and other personal information of … on the website www… .de operated by the defendant and to order the defendant to remove these from internet search engines such as Google,
2.) order the defendant to inform the applicant where and when the latter published photographs and/or other personal data of …,
3.) to prohibit the defendant from continuing to disseminate photographs and/or other personal data of … in the public domain (e.g. internet, print media, search engines) and
4.) order the defendant to pay damages.
The Regional Court rejected the application for legal aid in its decision of April 9, 2018, which is hereby referred to in full. It essentially stated that, in principle, both parents should have consented to the publication of pictures of their child. However, since this was a matter of parental custody, the regulation of which is of considerable importance for the child, the applicant was not entitled to take legal action against the unauthorized publication of photos of his daughter on the internet without a transfer of the corresponding authority from the family court.
The applicant contests this with his admissible immediate appeal, which was lodged in due form and time, the grounds for which are set out in the notice of appeal dated April 13, 2018.
The appeal is not well-founded.
First of all, it should be noted that according to Section 22 KunstUrhG, images may only be distributed or publicly displayed with the consent of the person depicted. This also includes the posting of photos on a website. If the person depicted is a minor, the consent of their legal representative is also required (see BGH NJW 2005, 56-58). As a rule, these are the custodial parents in accordance with § 1629 BGB.
However, the applicant is not authorized to take legal action solely on behalf of his daughter against the unauthorized publication of photos of the child, as a decision on this requires the mutual consent of the parents – which is not the case here – pursuant to Section 1687 (1) sentence 1 BGB. This follows from the fact that a decision on the publication of photos of the child on the disputed website www… .de and – as a consequence of this – a decision on legal action against unauthorized publication is a matter whose settlement is of considerable importance for the child. Matters of considerable importance within the meaning of Section 1687 Para. 1 Sentence 1 BGB are, in contrast to matters of daily life within the meaning of Section 1687 Para. 1 Sentence 2 BGB, generally those that do not occur frequently and therefore generally have or can have a considerable impact on the child’s development and whose consequences can only be remedied with some effort. The social significance of the subject matter of the decision must also be taken into account (see Palandt-Götz, BGB, 77th ed. 2018, Section 1687 para. 4). In the present case, the special significance of the right to one’s own image standardized in Section 22 KunstUrhG as an expression of the right based on Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG must first be taken into account. Art. 1 para. 1 GG (see also KG Berlin, FamRZ 2011, 1659-1660, juris para. 51). This right is particularly at risk when photos are published on the internet, as the group of people to whom the photos are made accessible is theoretically unlimited, reliable deletion of photos is not possible and any further dissemination is almost impossible to control (see DIJuF legal opinion 2.11.2016 – ES 7.120 Lh, JAmt 2017, 27-30). In addition, the disputed photos were and are published on the website of the farm operated by the defendant, which is clearly of an advertising nature and therefore pursues commercial objectives. In particular due to this aspect, the six-year-old … appears to be particularly in need of protection, so that a decision for or against the publication of images on the website in dispute is of considerable importance for her within the meaning of § 1687 para. 1 sentence 1 BGB. Such a decision can therefore only be made by mutual agreement between the parents, which also means that the petitioner is not solely authorized to take legal action against the respondent for illegally uploading the photos. The family court has not yet transferred the decision on such a procedure to the applicant in accordance with Section 1628 BGB.
The immediate appeal therefore had to be dismissed due to a lack of sufficient prospect of success of the intended legal action.