The defendant, provider of a TV program guide, used four photos of prominent TV presenters - including a picture of the claimant for a post on its Facebook profile with the wording "+++ JUST REPORTED +++ One of these TV presenters has to retire due to CANCER. We hope, he gets well soon" (original: "+++ GERADE VERMELDET +++ Einer dieser TV-Moderatoren muss sich wegen KREBSERKRANKUNG zurückziehen. Wir wünschen, dass es ihm bald wieder gut geht“). The latter, however, had not consented to the use of his photo in connection with the article. In addition, the defendant's linked article did not contain any information about the claimant, which is why the image was without any relevance to the article. The article was only reporting - correctly - about the illness of one of the other three TV presenters.
The claimant subsequently demanded that the defendant issue a cease-and-desist declaration with penalty clause and asserted a claim in court for payment of an appropriate fictitious license fee for the use of his image in the amount of at least €20,000.
The claimant was successful in the first two instances. However, the defendant continued to pursue the dismissal of the claim and appealed to the Federal Court of Justice (FCJ). The FCJ recently published its decision on this matter.
The FCJ decision upholds the appeal ruling and awards the claimant the asserted claim for payment of a fictitious license fee. According to the FCJ, the unauthorized commercial use of a picture of a person represents an interference with the "proprietary allocation aspect" within the right to one's own image. Essentially, this means that one is entitled to determine the use of one’s own image. Accordingly, the Court states that the claimant would be entitled to a payment of a fictitious license fee pursuant to Sec. 812 German Civil Code.
According to the Court, it is precisely one of the essential (proprietary) elements of the general right of personality to decide whether and how one's own image may be used. Since the claimant was not the subject of the defendant's article, the court of appeal was correct in assuming that the defendant had used the claimant`s image merely for attention-seeking purposes.
The interference with the right to one's own image was also unlawful, since the claimant had not given his consent. In addition, the picture was not relevant with regard to recent events. Therefore Sec. 23 para. 1 No. 1 of the German Act on the Protection of Copyright in Works of Art and Photographs (KUG) could not be used as a justification. The court found that the necessary weighing of interests rather favored the claimant. In fact, the Court found the article of the defendant to be on the edge of a deliberate false report and accordingly, at best, on the outermost edge of the freedom of the press. In addition, the Court stated that the claimant did not have to accept that his image was used for a report that had no relation to him in terms of its content.
The fictitious license fee of €20,000 awarded by the Court of Appeal was also considered as being reasonable by the FCJ in terms of its amount. When determining the amount, it was particularly important to take into account that the claimant was extraordinarily popular and had also been falsely associated with a serious illness, in this case cancer.
Even if the use of the photo of a prominent person is intended to draw the attention of potential readers to articles in order to collect advertising revenue for the financing of the journalistic work as such, this, according to the FCJ, does not justify so-called "clickbaiting". The decision is not only to be considered in the context of (online) press products, but is also relevant for YouTube videos and similar media, where "clickbait" is also frequently used for attention-seeking purposes.
Authored by Yvonne Draheim and Patrick Fromlowitz.