Germany

[DE] Caroline of Monaco Loses on Photo Report but Wins on Front-page Retraction

IRIS 1998-5:1/7

Stefan Sporn

Institute of European Media Law (EMR), Saarbrücken/Brussels

On appeal, Princess Caroline of Monaco has again failed in her action against Burda, the publishers of Bunte, which had published photographs of her without her permission. On 11 March 1998, the Hamburg Court of Appeal (Oberlandesgericht - OLG) dismissed as unfounded an appeal against a judgment given at first instance by the Regional Court (Landesgericht - LG), which declared publication lawful and refused to grant an injunction. The case concerned 23 photographs taken of the princess in her leisure-time, including six with Prince Ernst August of Hannover at a horse show. The Appeal Court found that the interference with her general personality rights, and specifically her right to her own picture within the meaning of Section 22 of the Artistic Copyright Act (Kunsturhebergesetz - KUG), which publication of the photographs entailed, was justified. She was a "contemporary celebrity" of the kind envisaged in Section 23, para. 1 (1) of the Act, and must therefore accept, in a general sense, the taking and publication of photographs of her, even without her consent. The public also had, within the meaning of Section 23 (2) of the Act, a justified interest in knowing where the Princess was and how she behaved in public. In its judgment, the Court rejected the Princess's argument. She had relied on a judgment of 19 December 1995 (Case No. VI ZR 15/95), in which the Federal Court (Bundesgericht - BGH) had ruled that contemporary public figures also had a general right to protection of their private life in public. The Hamburg Appeal Court considered that this would apply only if Caroline's conduct had indicated that she thought herself free from public observation - which was not the case. The Princess can appeal this decision to the Federal Court.

In another case, the Federal Constitutional Court found (Bundesverfassungsgericht) for the Princess when it ruled, in a basic decision given on 14 January 1998, that Heinrich Bauer, publishers of Das Neue Blatt, must publish a retraction on the front page of that magazine, which had carried a fictitious announcement of the Princess's supposed wedding plans. In so doing, it upheld the judgment of the lower courts that a retraction must, in certain cases, be published on a front page, provided that its prominence and presentation did not deprive that page of its function.