Reasons
2
I.
3
The plaintiff is the television presenter of the program “A”, the defendant is the publisher of the magazine “B”. In the issue of February 18, 2017, the defendant published an article under the heading “Reader action E TV DVB-T2 receiver for HD TV FINALLY SHARP!“, which was illustrated with a photo of the plaintiff from the program “A”. The plaintiff had not consented to such use and it is also undisputed that he had not previously appeared as an advertising medium. Whether he received and rejected such offers is disputed between the parties. The plaintiff is asserting claims against the defendant with regard to the publication of the disputed image for a declaration of its liability for damages, information and reimbursement of out-of-court legal fees.
4
Reference is made to the facts of the contested judgment (p. 98 et seq.) for details of the facts of the case and the dispute as well as the applications at first instance.
5
In its judgment of February 28, 2018, the Regional Court ordered the defendant to comply with the application and stated that the plaintiff was entitled to damages in accordance with Section 823 para. 2 BGB i.V.m. §§ Sections 22 and 23 KUG. There was neither consent within the meaning of Section 22 sentence 1 KUG nor could the dissemination of the plaintiff’s image be based on Section 23 para. 1 no. 1 KUG. It is true that the general public also has an information interest worthy of protection, as readers are informed of the changeover to reception via antenna. However, the balance of interests was in the plaintiff’s favor because the advertising character of the article was clearly in the foreground and the defendant was advertising a non-press product. The information communicated by the verbal report was not conveyed or supplemented by the photo of the plaintiff. In view of his size, the photo of the plaintiff does not merely play a subordinate role, especially since he and his program are not mentioned in the accompanying verbal report. The defendant could also not rely on the fact that the so-called C affair was generally known at the time of publication, as neither it nor its current development was mentioned in the article. The plaintiff is also entitled to the asserted claim for information under Section 242 BGB, as the requested information is necessary in order to quantify a concrete claim for enrichment and to be able to assert it against the defendant.
6
The defendant has appealed against this ruling and continues to pursue its first instance objective of dismissing the claim. It is of the opinion that the contribution in dispute does not constitute an advertisement, but is of an editorial nature. The portrait of the plaintiff is not used for commercial purposes, since – as stated for the first time in the grounds of appeal – it has neither received payment for the publication of the article nor obtained any other direct or indirect economic advantage from the advertisement. Rather, the article fulfilled the function of a guide intended to show the reader how to deal with the changeover of the DVB-T network. In contrast to the statements of the Regional Court, the fact that the recording was made with the plaintiff’s knowledge and intent should be taken into account in the assessment. In addition, he was a well-known person in public life, particularly at the time the image was published.
7
The reporting on the changeover of the DVB-T network was illustrated with a portrait of the plaintiff, whose program was also affected by the changeover. The requirement assumed by the Regional Court that the published image must have a connection to the verbal contribution does not exist. In addition, the text and the image interplay through the ambiguity of the word pair \“FINALLY SHARP\“, since not only the sharpness of the image, but also the sharpness of the plaintiff – as revealed in the context of his poem about Mr. D – is addressed. In this way, current events were referred to and commented on. If an advertising character of the article is assumed, it must also be taken into account that advertising for a product of another media genre is subject to the protection of freedom of the press, just like advertising for a press product of one’s own.
8
The defendant further argues that the plaintiff’s portrait does not take up 1/3 of the area of the reporting and that the advertising character of the information on pages 4 and 5 of the magazine in question is not in the foreground. In addition, the plaintiff’s claim for information is precluded by the fact that there is no legal basis for the information asserted in requests 2c) and d) and that the plaintiff is already aware of the circumstances of the “advertising campaign”.
9
The defendant claims,
10
set aside the judgment of the Regional Court of Cologne dated 28.2.2018 (28 O 269/17) and dismiss the action.
11
The plaintiff requests,
12
dismiss the appeal.
13
He argues that the article in dispute is indeed an advertisement for the receiver offered and the TV subscription also presented. The advertising impression is also reinforced by the fact that the article contains an Internet link with which the reader can call up the corresponding offer from the company. E’s corresponding offer. If this link is used, the reader is redirected to a website of the defendant, which contains the following text: ” Thank you for your interest! You will now be redirected to the website of our campaign partner “. The defendant’s contribution was therefore by no means merely to inform the reader about the introduction of the new DVBT standard, but rather the aim was to sell him a receiver. The defendant’s submission that it had neither received any remuneration nor gained any economic advantage for the contribution at issue was far-fetched, was disputed and was also irrelevant due to lateness.
14
The plaintiff is of the opinion that the scope of application of Section 23 para. 1 KUG is not applicable because the contribution in dispute only serves the business interests of the defendant or its cooperation partner E. The alleged reference of the formulation “Finally hot!” to the poem about the Turkish President presented by him was merely constructed and not recognizable from the contribution. The station name “F” was concealed by the blue advertising stamp “Leseraktion”, the poem had been broadcast a year earlier and he – the plaintiff – was not directly associated with the word “scharf“. Furthermore, the defendant had not explained what legitimate interest it had in the use of his photo in the advertisement and what the public was informed about by this photo.
15
Finally, the plaintiff is of the opinion that his interests in the context of Section 23 para. 2 KUG because he alone is entitled to decide on the advertising use of his image. The direct juxtaposition of the advertisement and his likeness exploited his fame by creating a mental connection for the reader, which led to an image transfer. Readers also assume that a celebrity depicted next to the product has at least given their consent to the use of the image. He loses credibility with regard to critical statements about the Springer Group if he is depicted in its magazines for advertising purposes.
16
The duty to provide information affirmed by the Regional Court was also unobjectionable. He had the choice of claiming compensation from the defendant for the specific damage, payment of a reasonable license fee or surrender of the infringer’s profit. The requested information was also necessary to calculate the infringer’s profit.
17
With regard to the further submissions, reference is made to the written submissions of the parties exchanged in the appeal proceedings.
18
II.
19
The defendant’s appeal is well-founded, which leads to the decision of the court of first instance being amended and the action being dismissed.
20
The plaintiff is not entitled to the asserted claims for determination of the defendant’s obligation to pay compensation, information and reimbursement of out-of-court legal fees.
21
1. the action is not inadmissible due to the lack of a summonable address of the plaintiff. This is because after the plaintiff initially – which is not sufficient under the case law of the Federal Court of Justice (see BGH, judgment of 9.12.1987 – IVb ZR 4/87, BGHZ 102, 332 with further references) within the scope of Section 253 ZPO – only provided the address of his legal representative, he provided his business address and thus a summonable address in his pleading dated 26.11.2018.
22
2. However, the action is unfounded because the asserted claims presuppose that the defendant has unlawfully violated the plaintiff’s right of personality, including his right to his own image, and is therefore obliged to pay him a so-called fictitious license fee (Section 812 para. 1 sentence 1 var. 2 BGB) or – in the event of fault – compensation for the damage incurred/to be incurred (Section 823 para. 1 BGB in conjunction with Art. 1 para. 1, Art. 2 para. 1 GG or Section 823 para. 2 BGB in conjunction with Art. 823 para. 1 GG). Art. 1 para. 1, Art. 2 para. 1 GG or § 823 para. 2 BGB i.V.m. §§ Sections 22, 23 KUG), which is to be prepared by information to be provided by the defendant. This is not the case here.
23
a. The admissibility of image publications must be assessed according to the graduated protection concept of Sections 22, 23 KUG, which takes into account both the constitutional requirements and the case law of the European Court of Human Rights (BGH, Urt. v. 29.5.2018 – VI ZR 56/17, juris para. 9; BGH, Urt. v. 6.2.2018 – VI ZR 76/17, juris para. 10; BGH, judgment of 6.3.2007 – VI ZR 51/06, juris para. 9). Accordingly, images of a person may only be disseminated with their consent (Section 22 sentence 1 KUG). Without such consent, images from the area of contemporary history (§ 23 para. 1 no. 1 KUG) may be published, unless the publication of the image violates the legitimate interests of the person depicted or the person entitled to perceive the image (§ 23 para. 2 KUG). To assess whether portraits from the field of contemporary history within the meaning of Section 23 para. 1 no. 1 KUG already requires a balancing of the rights of the person depicted under Art. 1 para. 1, Art. 2 para. 1 GG, Art. 8 para. 1 ECHR on the one hand and the rights of the press under Art. 5 para. 1 GG, Art. 10 para. 1 ECHR on the other (see BGH, judgment of. 29.5.2018 – VI ZR 56/17, juris para. 9; BGH, Urt. v. 6.2.2018 – VI ZR 76/17, juris para. 10). In order to take into account the significance and scope of the freedom of the press, the concept of contemporary history should not only refer to events of historical or political significance, but should also be defined in terms of the public’s interest in information (BGH, judgment of 29.10.2009 – I ZR 65/07, juris para. 15). In this respect, it includes not only events of historical-political significance, but all issues of general social interest (OLG Cologne, judgment of 29.08.2017 – 15 U 180/16, juris para. 19). However, an interest in information is not unlimited. The intrusion into the personal sphere of the person depicted is limited by the principle of proportionality (see BGH, Urt. v. 29.5.2018 – VI ZR 56/17, juris para. 14; BGH, Urt. v. 6.2.2018 – VI ZR 76/17, juris para. 15; BGH, judgment of 27.9.2016 – VI ZR 310/14, juris para. 7). How the boundaries for the public’s legitimate interest in information are to be defined can only be decided by taking into account the circumstances of the individual case (BGH, judgment of 29.5.2018 – VI ZR 56/17, juris para. 14; BGH, Urt. v. 6.2.2018 – VI ZR 76/17, juris para. 15; BGH, judgment of 28.10.2008 – VI ZR 307/07, juris para. 14).
24
b. Taking these principles into account, the defendant did infringe the plaintiff’s right to his own image because it used his image for advertising purposes without his consent.
25
aa. The decision as to whether and in what way one’s own image is used for advertising purposes is an essential part of the right of personality (see BGH, Urt. v. 31.5.2012 – I ZR 234/10, juris para. 17; BGH, Urt. v. 29.10.2009 – I ZR 65/07, juris para. 14; BGH, Urt. v. 18.11.2010 – I ZR 119/08, juris para. 12). This property-law component of the general right of personality was infringed by the fact that the plaintiff – as can be seen from a synopsis of the depiction of his image and the text reporting – was appropriated for advertising purposes without his consent (cf. on the character of impairment BGH, Urt. v. 31.5.2012 – I ZR 234/10, juris para. 16; BGH, Urt. v. 18.11.2010 – I ZR 119/08, juris para. 12).
26
bb. Contrary to the view of the defendant, the contribution in question is not purely editorial reporting, but (in any case also) advertising.
27
Whether an image is used for advertising purposes is to be assessed from the perspective of the average reader, whereby it is not necessary for the image to be used in an advertisement that is openly identified as such (BGH, Urt. v. 14.3.1995 – VI ZR 52/94, juris para. 12; BGH, Urt. v. 31.5.2012 – I ZR 234/10, juris para. 17). Even if the defendant’s contribution is not expressly labeled as an advertisement, it has the typical characteristics of an advertisement. In this respect, recourse can be made to the assessments developed in competition law in order to identify, within the framework of Section 5a para. 6 UWG to identify actions that pursue a commercial purpose that is not made sufficiently clear. Such a commercial purpose exists if the relevant action is aimed at promoting the sale of a product (Ohly/Sosnitza/Sosnitza, 7th ed. 2016, Section 5a UWG para. 95). This also includes so-called surreptitious advertising, by means of which the advertising statement is disguised and the addressee is given the impression that he is receiving neutral and objective information (Ohly/Sosnitza/Sosnitza, 7th ed. 2016, Section 5a UWG para. 99). Such surreptitious advertising may exist in particular if an editorial article presents a product in a promotional manner beyond the extent required by factual information, for example by mentioning only one product despite a large number of products of the same type, or if the product is placed at the center of attention and praised according to the content of the accompanying statement in such a way that the recipient is given the impression that the respective product is of such exceptional quality compared to comparable products that it is worth purchasing compared to comparable products (cf. BGH judgment of 7.7.1994 – I ZR 104/93, juris para. 15). All circumstances of the individual case, in particular the content of the report, its occasion and presentation as well as the design and objective of the press organ, must be taken into account (see BGH, Urt. v. 18.2.1993 – I ZR 14/91, juris para. 19; BGH, Urt. v. 31.10.2012 – I ZR 205/11, juris para. 16).
28
cc. Taking these principles into account, the contribution at issue also pursues advertising purposes.
29
(1) Visually, this initially stands out because the product name or word mark “E TV” is placed above the headline. The typographical design and the color scheme are clearly based on the figurative mark E or E TV. As in the case of use of the trademark by E itself, this fulfills an identification and differentiation function, i.e. the purpose of distinguishing a specific product from other products. In addition, the article alone contains an image of a specific Samsung brand receiver bearing the imprint “E TV“.
30
(2) The extent of the text component also does not contradict the advertising character. Typical for an advertisement is not the ratio of image and text, but rather that the recipients are informed about the existence and nature of a specific product and arguments are given for purchasing it. In this respect, the first and fourth columns of the continuous text contain information on the range of services of the Samsung DBV-T2 HD receiver and an E-TV subscription and also on the conditions under which they can be purchased. The fact that the defendant is particularly committed to E as a provider is made clear by the introductory sentence “E and B save you now …“, which suggests a close cooperative relationship to the reader. The subordinate text section, which in itself does not contain any specific product-related information, also has the function of addressing the target group for a corresponding product. Thus, the reference to the system change from DVB-T to DVB-T2 and its consequences as well as the instructions on how the reader can recognize that he is affected by the changeover serve the purpose of sensitizing those to the product who have previously used a DVB-T device, need a DVB-T2 device after the system change and would also like to continue receiving private channels.
31
(3) The text and image elements inserted on the following page also fulfill corresponding functions. The product and purchase information is made more specific by the information in the framed box with the heading “SO GEHT’S” and by the tabular compilation of the essential components of the offer under the heading “DAS E-AKTIONSANGEBOT“. The illustration of the TV channel logos on the right-hand side (“THESE CHANNELS ARE IN THE PACKAGE TO START WITH“) shows in detail which TV channels can be received with the receiver and the e-TV subscription. The illustration of the map graphically shows where the DVB-T2 signal can be received and in turn defines the product’s target group.
32
The advertising character is also clearly indicated by the fact that the supposedly favorable price-performance ratio is emphasized by the fact that the article contains the statement that the receiver is reduced by “a whopping 50%“, which is also placed above the text article (“50% SAVE!“) and catches the eye due to its color design and bold print, as well as the description of the price as a “bargain price” in the headline. It is also emphasized that the offer includes special additional services (“Plus“, “Four months are free for you“, “Four free months“, “The HD receiver offers …“). An appeal is made to the reader to purchase the product (“Grab it now“, “Get it now …“) and this targeted approach, the location in the “Reader promotion” section and the emphasis that this is an “exclusive promotion” also suggest that the reader belongs to a select group of addressees to whom this offer is temporarily reserved.
33
(4) The reference to a test in an earlier issue (“SCHON GETESTET“) also shows that the receiver is to be particularly praised compared to other products. The phrase “just as sophisticated an impression as more expensive receivers” emphasizes the supposedly good price-performance ratio, even in comparison to other receivers. The qualification of the article as an advertisement is also confirmed on the front page of the magazine. The header refers to the supposed opportunity to save 50%, the product name and price of the receiver are mentioned and the E TV logo is shown.
34
(5) In this context, it is irrelevant whether the defendant – as it argues for the first time and disputed by the plaintiff in the grounds of appeal – does not obtain any economic advantage of its own from the publication of the corresponding contribution. Although the receipt of an advantage of some kind is part of the legal definition of advertising within the meaning of § 2 para. 2 no. 7 RstV, which includes any statement broadcast in the course of a trade, business, craft or profession by a public or private broadcaster or a natural person, either in return for payment or similar consideration or as self-promotion, with the aim of promoting the sale of goods or the provision of services, including immovable property, rights and obligations, in return for payment. However, the question of whether and to what extent the publication of a portrait infringes the general right of personality cannot depend on such an economic advantage. From the point of view of the person concerned, it makes no difference which third party benefits economically from the publication of their image – from their point of view, the only decisive factor is that they are deprived of the opportunity to decide whether and at what price they wish to place their image in the service of a product. Against this background, the assessment of whether or not there is advertising depends solely on whether the portrait is used for the purpose of promoting the sale of a product or inducing the addressee to purchase a product, which is the case here.
35
c. However, this interference with the plaintiff’s right of personality or his right to his own image is not unlawful.
36
aa. Contrary to the plaintiff’s view, this question must be decided in the context of a balancing of interests pursuant to § 23 para. 1 no. 1 KUG. The scope of application of this provision also applies in the case of an advertisement if it does not exclusively serve the business interests of the company advertising with the image, but also serves the public’s interest in information (see BGH, Urt. v. 31.5.2012 – I ZR 234/10, juris para. 22; BGH, Urt. v. 29.10.2009 – I ZR 65/07, juris para. 15).
37
The protection of Art. 5 para. 1 GG also extends to commercial expressions of opinion and to purely commercial advertising that has an evaluative, opinion-forming content, including the publication of an image that conveys or supplements the expression of opinion (see BGH, judgment of October 26, 2006 – I ZR 182/04, juris para. 15). The information content of the image reporting must be determined in the overall context in which the portrait of the person is placed, in particular taking into account the associated text reporting (see BGH, Urt. v. 6.2.2018 – VI ZR 76/17, juris para. 18; BGH, Urt. v. 11.3.2009 – I ZR 8/07, juris para. 18), whereby the perception of the reader when reading the magazine is decisive (BGH, judgment of 11.3.2009 – I ZR 8/07, juris para. 18).
38
(1) In the present case, the image of the plaintiff in the overall context with the image of the DVB-T2 receiver and the verbal reporting initially has an informative content to the effect that reception of his program “A” is only possible with the aid of a DVB-T2 receiver after the switchover. While the verbal report initially explains that a technical switchover will take place on 29.3.2017, the still image from the plaintiff’s television broadcast illustrates in this context from the perspective of the average recipient that this format can (also) be received with the device mentioned in the report after the technical switchover. Insofar as the plaintiff asserts in its response to the appeal that an attribution is not possible because the broadcaster logo (F) is covered by the advertising banner of the company E, this is not the case. E advertising banner, this does not contradict the content of the statement described above. This is because the Senate is convinced that the plaintiff has achieved a level of public awareness that enables him to be recognized as the presenter of the program in question even without the corresponding logo.
39
In view of the importance of television programming today, the changeover of broadcasting operations is a matter of general social interest. This applies in particular if – as in the present case – this reporting is linked to (technical) explanations and advice on how the reader can avoid watching “nothing at all” after the cut-off date.
40
(2) In addition, the defendant’s reporting has a further information content. This is because the combination of the plaintiff’s portrait with the caption “ENDLICH SCHARF!” (“FINALLY HOT!“) uses a play on words that ambiguously emphasizes the optical quality of the television picture in so-called “HD” on the one hand and the professional qualities of the plaintiff as the host of a satirical program on the other.
41
At first glance, the average recipient may only think of the sharpness of the image that is to be ensured in the future following the technical changeover and when using the advertised products. However, the dictionary also contains the synonyms “aggressive, insulting, biting, spiteful, bilious, polemical, hurtful, cynical; (derogatory) spiteful, snide” for the term “sharp“. In this respect, it is in any case not far-fetched to understand the caption as a satirical/ambiguous allusion to the way in which the plaintiff designs his program, especially since he is considered a “sharp” satirist nationwide – at least since the publication of his poem “Schmähkritik”.
42
The adverb “finally“, which refers to the end of what is perceived as a long wait, also fits both aspects of the ambiguous play on words. On the one hand, it emphasizes that the new receiver has HD reception and therefore a “sharper” picture. On the other hand, it alludes to the fact that the author of the contribution values the way in which the plaintiff deals with current issues in his program. Even if neither the picture nor the signature explicitly refer to this aspect, it can be assumed in view of the specific time of publication that the discussion about the plaintiff’s poem “Schmähkritik” is also referred to and commented on. It is true that the program in which the plaintiff recited the poem was already broadcast on 31.3.2016, while the disputed issue of the defendant’s magazine was only published almost a year later on 18.2.2017. However, there is a temporal context insofar as the Hamburg Regional Court prohibited some passages of the poem in its judgment of February 10, 2017, with the result that other passages were deemed permissible and this in turn was picked up and commented on by the national and in some cases international press. Against this backdrop, it can be assumed that the average reader who followed the media coverage was also aware of the specific debate surrounding the poem at the time and will therefore also have related the term “FINALLY SHARP!” to the debate surrounding the recitation of the poem.
43
(3) Contrary to the opinion of the Regional Court, it is irrelevant for the assessment of this information content to what extent the word reporting expressly refers to the plaintiff’s program and its fate when the DVBT reception was switched or to the discussion about the said poem. If the information content of the image in combination with the caption already exists on its own (here through the combination of the photo of the plaintiff with the caption “Finally sharp“), it is not minimized by the fact that it does not find any equivalent in the (further) text reporting. In this respect, it is up to the media to decide on the type and manner of reporting and its presentation (see BGH, judgment of 6.2.2018 – VI ZR 76/17, juris para. 14). This freedom of choice of form also means that not everything that is to be expressed must necessarily be verbalized. Rather, it is at the discretion of the press to evoke associations in the viewer or reader solely through targeted allusions.
44
bb. If an information content must therefore also be taken into account in favor of the advertising in the contribution at issue, the balance between the plaintiff’s interest in the protection of his personality or his image and the public information interest perceived by the defendant is in favor of the defendant.
45
(a) The intrusiveness of the advertising is low, as it is merely so-called attention-grabbing advertising (see BGH, judgment of 29.10.2009 – I ZR 65/07, juris para. 19). In this respect, the Regional Court correctly stated that the image of the plaintiff only serves as an eye-catcher. It fulfills this function through the centered position of the image in the upper half of the post, which – as the Regional Court correctly assumed – accounts for around 1/3 of the total post.
46
On the other hand, there is no further exploitation of the plaintiff’s advertising value and image. Such – significantly more intensive – interference requires that the advertising creates the impression that the person depicted identifies with the advertised product, recommends it or praises it (see BGH, judgment of October 26, 2006 – I ZR 182/04, juris para. 19). The same applies if the public’s interest in the person and their popularity is transferred to the product through a direct juxtaposition of the product and the person depicted in the advertisement, because the viewer of the advertisement establishes a mental connection between the person depicted and the advertised product, which leads to an image transfer (see BGH, judgment of March 11, 2009 – I ZR 8/07, juris para. 29). However, these groups of cases are not given here: In the defendant’s reporting, the plaintiff’s portrait is embedded in an everyday usage situation of the advertised product. It is apparent to the recipient that the program presented by the plaintiff can still be received with the advertised receiver, but without giving the impression that the plaintiff himself is advertising the specific product. Even if the image of the plaintiff and the image of the advertised receiver are shown directly below each other, it is unlikely that the image of the plaintiff would be transferred to the product from the viewer’s perspective. The impression is not created that a “famous man” like the plaintiff would use the advertised product (see BGH, judgment of May 9, 1956 – I ZR 62/54, juris para. 11), or that the viewer would acquire characteristics of the plaintiff by using the advertised products or that the product would have characteristics of the plaintiff (see BGH, judgment of March 11, 2009 – I ZR 8/07, juris para. 32).
47
Insofar as the plaintiff referred to the fact that, as a presenter of a public television station, he is contractually obliged to coordinate any kind of advertising appearances with the station in a subsequent submission dated December 17, 2018, this circumstance does not lead to a different assessment. It is not apparent from the excerpts of the presenter’s contract submitted by the plaintiff (see Annex PBP 23) that the plaintiff is subject to an absolute ban on advertising or that, for example, advertising appearances would be associated with direct financial or other disadvantages for him, which could possibly play a role in weighing up the conflicting interests of the parties. Rather, this merely means that the plaintiff must obtain the broadcaster’s consent prior to advertising activities, which is only denied if “important reasons stand in the way of such activity“.
48
(b) When weighing up the interests of the protection of personality rights, the circumstances under which the recording was made, as well as the situation in which the person concerned is recorded and how he or she is depicted, must also be taken into account (see BGH, judgment of 6.2.2018 – VI ZR 76/17, juris para. 18; BGH, Urt. v. 22.11.2011 – VI ZR 26/11, juris para. 26). In this respect, the graduated protection concept according to spheres can also be used, according to which it is decisive whether the image is to be assigned to the more protected private sphere or the less protected social sphere (see BGH, Urt. v. 6.2.2018 – VI ZR 76/17, juris para. 28; BGH, Urt. v. 27.9.2016- VI ZR 310/14, juris para. 12).
49
In this respect, too, the intensity of the interference is low. The plaintiff’s portrait is a still image from the television program he hosts. In this respect, he is only affected in his social sphere – if not even only in his public sphere – by the publication of his portrait because the professional activity and therefore an area in which personal development takes place from the outset in contact with the environment is affected (BGH, judgment of June 23, 2009 – VI ZR 196/08, juris para. 31). The protection of the general right of personality is also reduced to the extent that it shows the person depicted in an activity that has attracted particular public attention (BGH, judgment of February 6, 1979 – VI ZR 46/77, juris para. 17).
50
(c) In contrast, the Regional Court did not sufficiently consider the public’s interest in information when weighing up the facts. The information value of the image and the accompanying reporting is of decisive importance in the context of the question of whether the media seriously and objectively discuss a matter of public interest in the specific case and thus meet the information needs of the public and contribute to the formation of public opinion (see BGH, Urt. v. 6.2.2018 – VI ZR 76/17, juris para. 17; BGH, Urt. v. 11.3.2009 – I ZR 8/07, juris para. 17, 20).
51
Insofar as the image of the plaintiff conveys the information that the technical change in DVBT reception described in the verbal report means that his program – as well as a large number of other programs – can only be received with the new DVB-T2 device, this is certainly of informational value, even if it is low in the assessment and therefore not decisive on its own. In addition, however, the defendant alludes with the image of the plaintiff in conjunction with the caption “ENDLICH SCHARF!” to his aggressive nature in general and – in view of the temporal connection to the judgment of the Hamburg Regional Court – in connection with the publication of the poem “Schmähkritik” in particular. In the “G” decision, the Federal Court of Justice classified the information value as too low to justify the publication of a portrait of H, as the caption had “no news value with an orientation function with regard to a factual debate of interest to the general public” (see BGH, judgment of March 11, 2009 – I ZR 8/07, juris para. 23). It is true that in the present constellation, too, only the broadcast format for which the plaintiff is responsible is initially characterized. However, the specific publication context must also be taken into account. The public debate about the poem “Schmähkritik” and the plaintiff as well as his program began in the previous year of publication and, in view of the pronouncement of the judgment of the Hamburg Regional Court in the week prior to publication, continued at the time of publication. In contrast to the description of the “G” format as “exciting“, the caption “ENDLICH SCHARF!“, which refers to the image, therefore represents a contribution – albeit a short one – to an ongoing current debate.
52
In favor of the defendant, however, it cannot be additionally taken into account that the interest in information would already result from the subject matter of the advertising itself, because it is consistent with established case law that the self-promotion of a press product is already accompanied by a special information value (cf. BGH, Urt. v.18.11.2010 – I ZR 119/08, juris Rn. 21; OLG Cologne, judg. v. 22.02.2011 – I-15 U 133/10, juris para. 48 – the communication of the content and design of a magazine as well as the targeted readership are of high general interest, as the publisher uses the advertisement to present its press product and provide information about it). The image publications in question were always those that show the viewer the hypothetical future design (BGH, judgment of 29.10.2009 – I ZR 65/07, juris) or an actual past design (OLG Cologne, judgment of 22.2.2011 – 15 U 133/10, juris para. 48), because the protection of press freedom extends from the procurement of information to the dissemination of the news and the expression of opinion and is therefore not limited to press activities directly related to content, but also includes advertising for the press product (see BGH, judgment of 29.10.2009 – I ZR 65/07, juris para. 23). However, these assessments do not apply here because the advertised products (receiver and HD TV subscription) are not press products of the defendant.
53
In the overall view, the portrait of the plaintiff was thus permissibly published by the defendant as a portrait of contemporary history within the meaning of Section 23 para. 1 No. 1 KUG has been published: The degree of impairment is low, as the portrait of the plaintiff merely has the function of drawing the viewer’s attention to the advertised product without exploiting the image or advertising value of the plaintiff. In addition, the plaintiff’s social sphere is merely impaired, especially since the portrait originates from a situation in which he voluntarily exposed himself to the gaze of the general public. In contrast, the informational value of the portrait in conjunction with the caption outweighs this insofar as a position is taken in the public controversy surrounding the plaintiff, which is still ongoing at the time of publication. In comparison to the “G?” decision, in which the BGH gave priority to the plaintiff’s general right of personality, since “a contribution to the formation of public opinion worthy of protection is not recognizable when weighed against the plaintiff’s general right of personality, in particular due to the exploitation of his image and advertising value” (BGH, judgment of 11.3.2009 – I ZR 8/07, juris para. 33), the weightings are shifted in two respects in the present case: On the one hand, the image and advertising value of the plaintiff is precisely not exploited, and on the other hand, the advertising also contains a contribution to the formation of public opinion.
54
3) In the absence of a violation of the plaintiff’s rights under § 22 KUG, the request for information and the request for payment of pre-trial attorney’s fees are also unfounded.
55
4. the procedural ancillary rulings arise with regard to the costs from section 91 para. 1 sentence 1 ZPO and with regard to provisional enforceability from § 709 sentence 1 ZPO. The appeal was not permitted because the requirements of section 543 para. 2 ZPO are not met. The case is neither of fundamental importance nor does the further development of the law or the safeguarding of uniform case law require a decision by the Federal Court of Justice, as the assessment of the legal dispute is based on the application of supreme court case law and otherwise on the individual circumstances of the case. Legal questions of a fundamental nature that have not yet been clarified by the highest courts and that could be of interest beyond the specific individual case did not arise and did not have to be decided.
56
The defendant’s statement of 16.1.2019, which was not remitted, did not give rise to the reopening of the oral hearing. The same applies to the plaintiff’s pleading dated 04.02.2019
57
Value in dispute: 34,642.40 Euro