VERLAGSGRUPPE HANDELSBLATT GMBH & CO. KG v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev
1. The applicant, Verlagsgruppe Handelsblatt GmbH & Co. KG, was formerly known as Verlagsgruppe Handelsblatt GmbH, a German private limited company whose registered office was in Düsseldorf. It published the weekly business news magazine Wirtschaftswoche. In 2010 it was converted into a private limited partnership and the company seized to exist. The applicant was represented before the Court by Mr R. Mann, a lawyer practising in Hamburg. 3. In its edition of 14 September 2000, Wirtschaftswoche published an article about the CEO of German Telecom (Deutsche Telekom AG), Dr Ron Sommer. It was entitled “Almighty Sommer” (Allmächtiger Sommer) and critically reviewed his management style and the consequences for German Telecom. 4. The article was accompanied by a photomontage, which was shown in different sizes four times throughout the entire magazine. The photomontage was a crumbling magenta-coloured “T”, the logo of German Telecom, with a person sitting on top of it with Dr Sommer’s face. The picture was put together using the body of a model in a sitting position and a photograph of Dr Sommer’s head. The applicant retrieved the photograph of the head from the image database of the Associated Press. To fit the body and head together, the photograph of the head was vertically stretched and horizontally shrunk. 5. Dr Sommer applied for an interim injunction to stop any further publication of the photomontage. He argued that by planting his head on a different body and by the fact that his head appeared more corpulent in the photomontage than in real life, his reputation was being damaged. He stated, in particular, that his cheeks appeared longer, his chin plumper and his neck shorter. 6. On 26 September 2000 the Hamburg Regional Court granted the interim injunction, without hearing the applicant’s arguments. 7. On 3 November 2000, on an objection by the applicant, the Hamburg Regional Court set the interim injunction aside. It found that the photomontage constituted a value judgment in the form of a satirical illustration, which conveyed the criticism expressed in the attached article. The minor discrepancies and the “wrong” body had not infringed Dr Sommer’s personality rights to such a degree as to justify an interference with the applicant’s freedom of expression. The court also stated that it was not its task to assess whether the applicant could have created a “better”, less infringing photomontage, since the form of expression was the prerogative of the author or artist. Furthermore, the satirical nature of the illustration was apparent, as the average reader would not consider that Dr Sommer sitting on a crumbling “T” replicated real life. 8. On 30 January 2001 the Hanseatic Court of Appeal reinstated the interim injunction. It held that the illustration had to be divided between the “T” and the depicted person. While it was apparent that the “T” part was a satirical illustration, the manipulation of the head, namely the stretching and shrinking, was not so obvious. Consequently, the average reader would expect the picture of Dr Sommer to depict reality. Owing to this “untrue” illustration, the personality rights of Dr Sommer overrode the applicant’s freedom of expression. 9. On 6 July 2001 the Hamburg Regional Court upheld the interim injunction preventing any further publication of the photomontage. 10. On 12 February 2002 the Hanseatic Court of Appeal dismissed an appeal brought by the applicant. It reiterated that the manipulated photograph of Dr Sommer showed him in an untrue, unfavourable and disadvantageous light. Nevertheless, since the manipulation was so slight, the average reader would not realise the distortion. The court found that Dr Sommer did not have to accept this untrue and manipulated depiction of himself in the press. 11. On 30 September 2003 the Federal Court of Justice overturned the Court of Appeal’s judgment. It found that the satirical illustration could not be broken down into individual components, but had to be assessed as a whole. Therefore, the satirical nature of the illustration was apparent and a typical reader would not expect to see a depiction of reality. Given that the extent of the alteration had been so slight, the applicant’s freedom of expression overrode the personality rights of Dr Sommer, who had to accept the satirical illustration of himself. Furthermore, the court found that the publication of the photograph had not infringed Dr Sommer’s right to protection of his image because, as the CEO of a well-known former Stateowned company with a monopoly, he was actually a “relative figure of contemporary society” (relative Person der Zeitgeschichte). Given that the shares of the company were intensely advertised as “people’s shares” (Volksaktie) and that the company still had a leading market share the management style of Dr Sommer and the consequences for the company were an issue of general interest. Consequently, the satirical illustration, including the publication of his photograph attached to an article that contributed to a debate of general interest, was legitimate. 12. On 14 February 2005 the Federal Constitutional Court repealed the Federal Court of Justice’s judgment and remitted the case (1 BvR 240/04). The court held that personality rights generally also included protection from the publication of technically manipulated photographs. In the context of satirical illustrations, it had to be established whether the manipulation had its own satirical nature or was technically necessary for the composition of the illustration, or whether the alterations were negligible. Applying these principles to the photomontage in question, the court found that the applicants had used a photograph of Dr Sommer to depict reality and make the person identifiable, and that the illustration of the person had no satirical value in itself. Therefore, the untrue photograph could only be justified if the alterations had been technically necessary or negligible. This however had to be ascertained by the lower courts. 13. On 8 November 2005 the Federal Court of Justice remitted the case to the Court of Appeal, as the latter had not established whether the alterations had been technical necessary or negligible. 14. On 7 February 2006 the Court of Appeal appointed an expert to analyse the manipulations of the original photograph of Dr Sommer and establish to what extent it had been altered. The expert established that the head had been vertically stretched by 8.7% and horizontally shrunk by 4.5%. He furthermore compiled his own photomontage that showed that the head could have been fitted to the body without the above-mentioned distortion being made. Consequently, he came to the conclusion that the manipulation had not been technically necessary. 15. On 30 October 2007 the Court of Appeal dismissed the appeal by the applicant and upheld the original interim injunction, preventing any further publication of the photomontage. The court found that the unnecessary alterations of the photograph conveyed an untrue message regarding the appearance of Dr Sommer. Because the manipulation had not been negligible and had led to an unfavourable and negative presentation of Dr Sommer, his general personality rights had been infringed. This infraction could not be justified by the applicant’s freedom of expression. 16. On 28 October 2008 the Federal Court of Justice dismissed an appeal by the applicant against the refusal of leave to appeal on points of law. 17. On 15 February 2011 the Federal Constitutional Court refused to admit for adjudication a constitutional complaint brought by the applicant, without providing reasons (1 BvR 3349/08).