Former German President Christian Wulff took legal action against the magazine “People” in an exciting and lengthy trial.
But ultimately without success.
In a ruling on February 6, 2018, the Federal Court of Justice ruled that the publication of photos of the former Federal President shopping with his wife was permissible (case reference: VI ZR 76/17).
As part of a balancing exercise, Wulff’s general right of personality took second place to the general public’s interest in the publication of the photos.

People magazine published pictures of the Federal President

The magazine published an article about Wulff and his wife with the headline “Love comeback”.
The article was followed by two pictures, one of which showed the plaintiff with a full shopping cart.
In the second picture, Wulff was pictured with his wife by the car.

However, the picture with his wife was not only published in the magazine “People”, but also in the magazine “Neue Post”, which is also published by the defendant.
A similar article with identical pictures followed under the headline “After the reconciliation – Christian Wulff – Who loves Bettina, pushes!”.

LG and OLG uphold the former Federal President’s claim

The Regional Court of Cologne already upheld the former Federal President’s claim in a ruling dated April 27, 2017 (case reference: 28 O 379/15).
The appeal against this before the Higher Regional Court in Cologne was unsuccessful (case no.: 15 U 88/16).
According to the judges at the Higher Regional Court of Cologne, the publication of the images violated Wulff’s privacy.
This is because the pictures show him in a private and inconsequential situation that lacks any connection to his political activities.

BGH: Publication of the photos permissible

Contrary to the opinion of the Cologne Higher Regional Court, the VI Civil Senate of the BGH has now overturned the preliminary rulings in the appeal proceedings and dismissed the claim.

In the opinion of the judges in Karlsruhe, the photos were classified as contemporary history (Section 23 KUG).
They could therefore be published without the consent of the former Federal President.
Although the legitimate interest in the non-publication of the photos was violated, it took a back seat to the general interest in publication in the context of a balancing of interests.

In the opinion of the BGH, the lower courts had not sufficiently taken into account the fact that Wulff had opened himself up to the public to a great extent in the past.
As a result, the lower courts wrongly gave priority to Wulff’s general right of personality over the freedom of the press protected by Art. 5 para.
1 of the German Constitution.

Public interest outweighs personal rights

Wulff’s outstanding political significance as the holder of the highest office of state and the associated public interest in his person did not end with his resignation as Federal President.
Rather, the special significance of the office continues to have an effect.

As former Federal President, he continues to fulfill numerous political and social obligations and, in particular, serves as a role model and contrast in the normality of his everyday life.
In connection with the verbal reporting, the publication of the photos contributed to a discussion of general interest.
This was because it referred to the reconciliation with his wife that Wulff himself had confirmed only a few days previously.
In this context, the BGH also considered that Wulff had often discussed his private life in public in the past and had thus shown his consent to the public discussion of the topic.

Photos were taken from the social sphere of the former Federal President.

In addition, the photos of him shopping in the supermarket are merely from the social sphere of the former Federal President.
In contrast, his legitimate interest is not of overriding importance, especially as the photos do not contain any independent infringing content, but only show Wulff as a caring family man in an innocuous everyday situation.

The different views of the Regional Court, Higher Regional Court and Federal Court of Justice show how difficult and also different such an assessment can be.
All the details of the case must always be taken into account when assessing a violation of the general right of personality.