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Monday, 26 November 2007

The photos may be appealing, but the prospect of litigation isn't

The IPKat's friend Birgit Clark has sent him news of two recent German decisions on the availability of preventive injunctions to prevent the publication of photographs. They are decisions VI ZR 265/06 und VI ZR 269/06 (both from the Bundesgerichtshof).

Right: not all swimmers object to being photographed in the German media, even without their clothes on.

The full text of the decision is not yet available but in a press release the court summarised the cases as follows:

"The claimant, a well-known former swimmer, objected to the publication of photographs and articles in several magazines published by the defendant. These photographs, which had been taken secretly in 2005 during a holiday on the island of Sardinia, showed the claimant and her partner, inter alia, on the beach in front of the hotel. The articles that accompanied the published photographs used the claimant’s name in their headlines and subtitles like “Flirting and loved up on holiday” (“Turtelnd und verliebt im Urlaub")

The defendants had already provided pre-trial “cease and desist” undertakings to refrain (under criminal penalty) from re-publishing the same photographs. The claimant, however, did not want to settle the matter but decided to bring legal actions in two of the cases. She filed for a permanent injunction to prevent the defendant distributing images of her that showed her in her personal everyday life. The appeal court had already judged this claim as being too far-reaching but ordered the defendants to desist from publishing future photographs that were in their “core” similar to the photographs to which the claimant had objected pre-trial.

The 6th Civil Senate of the Bundesgerichtshof which is, inter alia, responsible for “general personality right” matters, dismissed the claims in their entirety in both cases.

The court pointed out that the unlawfulness of the earlier publications was not under dispute, following the “cease and desist” undertakings the defendant had provided pre-trial. However, whether the claimant was also entitled to preventive injunctive relief with respect to future photographs that were “in core similar” could not be predetermined. In order to judge the lawfulness of a publication, it was necessary to balance the conflicting interests, that is the interest of the public to be informed and the interest of the claimant to protect her “sphere of privacy” (Privatsphäre), based on the specific merits of each new case. Such balancing of conflicting interests could not be conducted with regard to photographs that had not been made known yet and because it was not yet known in which context such photographs would be published. The court stressed that this was especially true as it was important to consider the accompanying text that goes with the photographs, when balancing the conflicting interests of the claimant and the defendants".
The IPKat thinks that is unfortunate that the balancing of interests can't be done without the claimant having to go to court on each separate occasion on which a photograph is published, in order to get a cease and desist order against the further publication of a photo which, by virtue of the fact that has been published, has already lost much of its commercial novelty value and is unlikely to be published again. This effectively gives the media a massive victory.

Learn to swim here
Learn to take photos here

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