SIHLER-JAUCH AND JAUCH v. GERMANY
Inadmissible
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The applicant in the first case, Ms Dorothea Sihler-Jauch, is a German national who was born in 1958. The applicant in the second case, Mr Günther Jauch, is a German national who was born in 1956. Both applicants live in Potsdam and were represented before the Court by Ms K. Schmitt, a lawyer practising in Berlin. 2. The second applicant is a well-known journalist, producer and television presenter. The television shows he was presenting at the relevant time included a political talk show and a news magazine. 4. The applicants married in July 2006. The wedding reception was held in the Belvedere, an ancient palace surrounded by an English garden in Potsdam. The wedding ceremony took place in the Friedenskirche, also in Potsdam. Both locations are well-known tourist attractions and are generally open to the public. 5. Among the 180 wedding guests were well-known journalists, television presenters and sports personalities. The mayor of Berlin also attended the wedding. 6. Due to the anticipated media interest in the wedding, the applicants’ legal representative had informed the relevant newspapers beforehand that the applicants did not wish any reports to appear containing details of the wedding. In addition, both locations were closed to the public and only invited guests were allowed inside. 7. On 13 July 2006 the magazine Bunte, a so-called “people’s magazine” with a circulation of approximately 650,000, published an article about the wedding. The article was announced on the cover of the magazine and illustrated with several photographs. Besides photographs of wedding guests and old photographs of the applicants, one photograph showed the first applicant on her wedding day, taken before the wedding ceremony inside the restricted area. It was (erroneously) captioned “NEWLY WED Thea Sihler after the wedding vows” (FRISCH GETRAUT Thea Sihler nach dem Jawort). During the subsequent civil proceedings, the question of where the photograph of the first applicant had been taken from was a matter of contention. While the applicants asserted that it had been taken from outside the restricted area, through a hole in the wall ‒ using a strong telephoto lens ‒ the magazine maintained that they had no information regarding the photograph’s provenance since it had been purchased from a stock photographic agency. They speculated, however, that it could just as easily have come from one of the accredited photographers, or from an invited guest, or from a member of staff. 8. The article itself informed the reader about the precautions taken by the applicants to prevent press coverage but also gave details about the wedding, including the nature of the catering, the drinks, the applicants’ outfits, the music and the decoration of the church. The article also included quotes from the address given by the priest, and from the speeches of the second applicant and the first applicant’s father, as well as an excerpt from an intercessory prayer recited by one of the applicants’ children. 9. After publication of the article and at the request of the applicants, the magazine signed a cease and desist declaration regarding the further publication of a number of statements from the article outlining the details of the wedding. The magazine refused to sign such a declaration in respect of the above-mentioned photograph of the first applicant. 10. On 1 August 2006 the Berlin Regional Court issued a cease and desist order in respect of further publication of the photograph of the first applicant on her wedding day. 11. The first applicant brought proceedings against the magazine, claiming EUR 250,000 as a notional licence fee, EUR 75,000 in damages and EUR 997.37 of pre-trial expenses for the cease and desist declaration. 12. On 11 January 2008 the Hamburg Regional Court reaffirmed the cease and desist order, awarded the applicant EUR 25,000 in damages and ordered the magazine to reimburse the pre-trial expenses. 13. The court held that the article concerned an event of public interest because the second applicant was one of the most famous and popular television presenters in Germany, who had a strong influence on shaping public opinion. His wedding was therefore anyway of public interest and even more especially so since the public were interested in knowing who had a sufficiently close relationship with him to be invited to attend his wedding. The latter point was of particular importance in terms of enabling the public to judge the second applicant’s journalistic independence. The court also found that the chosen wedding locations increased the level of public interest in the wedding, since the two places were amongst Germany’s most popular tourist attractions. The court found that neither the article nor the photograph showed the applicants in a negative light, nor were they in any way derogatory. Nor did the photograph touch on the core of the applicants’ privacy, as it did not show the wedding ceremony itself. Nonetheless, the court found that publication thereof had not been justified by a legitimate interest as the first applicant had chosen to retreat to a secluded place, away from the public eye. Furthermore, the applicants had made clear their intention to prevent press coverage of their wedding by asking the press to refrain from reporting it and taking precautions to create a degree of seclusion by restricting access to the wedding location(s). 14. However, the court held that publication of the article alone ‒ regardless of the accompanying photograph ‒ constituted a serious enough violation of the first applicant’s personality rights to justify damages. In particular the publication of core details of the wedding party and ceremony ‒ such as quotes from the speeches, the range of drinks and food offered during the wedding and the choice of music ‒ could not be justified by any public interest but rather constituted a voyeuristic intrusion into the applicants’ privacy. Concerning the notional licence fee, the court held that it could not be considered normal commercial practice to pay royalties to the subjects of a news report. Consequently the magazine had not saved royalties which they would normally have had to pay to the first applicant for publishing the report and the photograph. 15. On 21 October 2008 the Hamburg Court of Appeal set the Regional Court’s judgment aside and dismissed the first applicant’s action in its entirety. It confirmed the Regional Court’s reasoning regarding public interest on the basis of the popularity of the wedding locations. It furthermore, and in particular, emphasised that, owing to the influence of the second applicant on public opinion and his role in presenting political television shows, the public had a legitimate interest in knowing who was invited to his wedding ‒ including the mayor of Berlin ‒ and to judge whether the public opinion presented by him was consistent with or contradictory to his real life. As the wedding was a shared event in the life of both the applicants, the first applicant was obliged to accept the public’s interest in the life of the second applicant. 16. However, the court disagreed with the findings of the Regional Court concerning the level of interference with the first applicant’s personality rights. It held that the details published about the wedding, such as information regarding drinks, food and music, were not core private issues but constituted information that was generally discussed and of interest in the context of a wedding. Furthermore, the court pointed out that it was normal practice and to be expected that, in the context of a wedding, photos would be taken by different people, whether invited guests or not. As the photo of the first applicant did not show her in a negative light and was not published on the front page of the magazine, its publication could be justified by public interest. Lastly, the Court of Appeal gave special consideration to the publication of quotes from the priest’s address, the speeches of the second applicant and the first applicant’s father, and an excerpt from an intercessory prayer recited by one of the applicants’ children. It reasoned that this information was more intrusive than the rest of the published details. Nonetheless, even though the wedding was not open to the general public, around 180 guests had been invited, and they were not bound to confidentiality. As these guests were not all part of the core family, the speakers and the applicant had to accept that certain information would be communicated to persons who were not invited and to the general public. In conclusion it reasoned that the mere desire on the part of the applicants to have no press coverage could not outweigh the legitimate public interest in the wedding, the published details and the photograph. 17. The first applicant’s complaint against the refusal of leave to appeal on points of law was rejected. 18. On 12 May 2010 the Federal Constitutional Court declined to admit the applicant’s constitutional complaint, without providing reasons (1 BvR 760/10). 19. The second applicant also brought proceedings against the magazine, claiming damages of at least EUR 25,000 and EUR 1057.69 in pre-trial expenses for the cease and desist declaration. 20. On 24 April 2009 the Hamburg Regional Court dismissed the second applicant’s action. It endorsed the reasoning of the Hamburg Court of Appeal and quoted its judgment of 21 October 2008 at length. 21. The applicant’s appeal and complaint against the denial of leave to appeal on points of law were rejected. 22. Article 5 §§ 1 and 2 of the Basic Law (Grundgesetz) guarantee freedom of expression and the freedom of the press and provide that these freedoms are subject to the limitations laid down in the provisions of the general laws and in the statutory provisions for the protection of young people and are also subject to the obligation to respect personal honour (Recht der persönlichen Ehre). 23. Section 22 § 1 of the Copyright (Arts Domain) Act (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie) provides that images can only be disseminated with the express consent of the person concerned. Section 23 § 1 (1) of the Act provides for exceptions to that rule in cases where the images portray an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) as long as publication does not interfere with a legitimate interest of the person concerned (section 23 § 2). 24. Article 823 § 1 of the Civil Code (Bürgerliches Gesetzbuch) provides that anyone who, intentionally or negligently, unlawfully infringes another’s right to life, physical integrity, health, freedom, property or other similar right, shall be liable to furnish compensation for the resulting damage. Article 253 of the Civil Code stipulates that monetary compensation may be demanded in respect of non-pecuniary damage only in the circumstances provided for by law. These include an injury to a person’s body, health, freedom or sexual selfdetermination.