At the beginning of 2018, the Stade Regional Court ruled on the right to one’s own image (Ref.: 2 S 20/17).
It found that tradespeople may be photographed to preserve evidence.
In this respect, there is a legitimate interest in the preservation of evidence, which outweighs the right to one’s own image of a person depicted under Section 22 KUG.
Therefore, in such a case, the photographer owes neither an injunction nor “compensation for pain and suffering” in any form.
A neighbor dispute with photos
The decision was based on a neighbor dispute par excellence.
The owners of two semi-detached houses got into a deep dispute following roofing work.
The main issue was the roofing work on the two semi-detached houses.
The work on the roof had only been commissioned by one of the owners, but was carried out on both roofs.
After the parties were to share the costs, the residents of the left-hand semi-detached house discovered that the costs were completely excessive.
Although the roofing company’s invoice included hours of work by several roofers, the owners of the left half only saw one roofer on the roof during the construction work.
Furthermore, he only worked with a ladder and not with expensive scaffolding on the parties’ house as stated.
This dispute went so far that a court was subsequently allowed to deal with the issue.
During this process, work again had to be carried out on the parties’ roof.
To preserve evidence – to avoid receiving another surprise bill – the owners of the semi-detached house on the left took photos of the work and the roofers at work.
They could be seen on a ladder on the roof.
The roofer was shown with his entire body from behind and partly in profile.
Craftsman warns photographer and demands “compensation for pain and suffering” – in vain
Only a short time later, the photographer received a warning letter in the name of a craftsman unknown to him.
The latter was of the opinion that he could be recognized in the photos – which were introduced as evidence in the ongoing court case.
This introduction into the public court proceedings also constituted publication of the photos.
He had not consented to this at any time.
As a result, the introduction of the photos into the trial constituted an unlawful infringement of his right to privacy.
In addition to a cease-and-desist declaration with penalty clause, the craftsman demanded EUR 1,500.00 as “compensation for pain and suffering” to make good the alleged immaterial damage.
It is still unclear how the craftsman became aware of the photos.
However, the warning letter came from the same lawyer who represented the owners of the semi-detached house on the right in the court proceedings.
The purpose of the warning was therefore clear: the incriminating photos were to be removed from the proceedings.
Preservation of evidence takes precedence over the right to one’s own image
However, the craftsman’s action before the Stade District Court was unsuccessful.
The craftsman was unable to prove to the court’s satisfaction that he was the person recognizable in the photos.
Therefore, he was not entitled to bring an action in the first place.
Even if this were the case, the claim being sued for was ruled out (AG Stade, judgment of 27.04.2017, ref.: 61 C 821/16).
It is true that submitting the photos to the Stade Regional Court in the pending parallel legal dispute constituted a distribution of the photos.
However, the owners of the semi-detached house on the left were entitled to protect their legitimate interests.
According to the judges, the evidentiary purposes took precedence over any rights to the image of the person depicted.
The interference with the general right of personality or the right to the plaintiff’s own image was to be regarded as extremely low-threshold.
According to the so-called sphere theory, the photos only encroach on the plaintiff’s social sphere.
They only show the plaintiff carrying out his professional activity.
And he carries out this activity predominantly in areas visible to the public.
Even if one were to see this as an encroachment on the plaintiff’s general right of personality, the interests of the roofer would in any case have to take a back seat in the context of a balancing of interests in favor of the interests of the owners for the purpose of preserving evidence in the aforementioned parallel legal dispute.
No “compensation for pain and suffering” for craftsmen
The court also clearly rejected the claim for compensation for pain and suffering.
The claim for compensation for pain and suffering was to be understood as a claim for payment of monetary compensation, but was ruled out here.
This is because the violation of personal rights can only justify a claim for compensation for non-material damages in exceptional cases.
Finally, not every violation of the general right of personality is capable of triggering a claim for monetary compensation.
It would be necessary for the infringement to be very serious and the impairment could not be compensated for in any other way.
In the present case, such a claim already fails due to the serious interference, which does not exist here, because only his social sphere was affected by the interference.
The Stade Regional Court confirmed the opinion of the Local Court in the form of a corresponding reference order and advised the craftsman to withdraw the appeal in a detailed and reasoned decision.
The craftsman followed this advice.
Entitlement to injunctive relief is always a question of the individual case
As the judgment of the Stade District Court makes clear, not every unwanted recording is a violation of personal rights with consequences.
It always depends on the distribution or making available to the public without the consent of the defendant.
However, even this can be permissible in individual cases after weighing up the circumstances.
Claims and warnings in the area of the right to one’s own image should therefore always be treated with caution.
Unfortunately, the legality can often only be recognized at second glance by the trained eyes of a lawyer.