+49 30 983 216 49 0 info@bunber.de

Der Europäische Gerichtshof für Menschenrechte stärkt das Recht am eigenen Bild – Ron Sommer

Die Presse darf keine Manipulation an Fotos vornehmen, die für den Leser nicht als Manipulation erkennbar ist.

Nimmt die Presse doch Manipulationen am Foto vor, können die abgebildeten Personen Unterlassungsansprüche durchsetzen. Die Meinungsfreiheit des Verlages wird durch die Geltendmachung des Rechts am eigenen Bild nach Ansicht des Europäischen Gerichtshofs für Menschenrechte nicht verletzt. Im konkreten Fall (Ron Sommer hatte ursprünglich geklagt) hat der Europäische Gerichtshof für Menschenrechte keine Gründe gefunden, die schon durch die deutschen Gerichte getroffenen Entscheidungen aufzuheben. Der Europäische Gerichtshof für Menschenrechte verweist ausdrücklich darauf, dass die nationalen Gerichte sorgfältig die Meinungsfreiheit gegen die Persönlichkeitsrechte abgewogen haben: 

“The Court observes that the national courts carefully balanced the right of the applicant to freedom of expression against the right of Dr Sommer to respect for his private life and attached fundamental importance to the veracity of the message conveyed by the photomontage, the degree of manipulation and the technical necessity of the alterations. Therefore, the Court finds reason to reiterate that, although opinions may differ on the outcome of the judgment, where a balancing exercise was undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court requires strong reasons to substitute its view for that of the domestic courts (seeLillo-Stenberg and Sæther v. Norway, no. 13258/09, § 44, 16 January 2014; with references to Axel Springer AG, § 88; and Von Hannover (no. 2), § 107, both cited above).

In these circumstances and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that there are no strong reasons to substitute its view for that of the domestic courts, and that the latter have not failed to comply with their obligations under Article 10 of the Convention.

It follows that there is no appearance of a violation. The application is therefore inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.“

Weiter führt der Europäische Gerichtshof für Menschenrechte aus:

“The applicant argued that the injunction had been disproportionate, since the manipulation of photographs was an inherent feature of any satirical illustration or photomontage. Consequently, justified alterations should not be limited to technically necessary manipulations or those that were clearly recognisable. Furthermore, by establishing with the help of an alternative photomontage by an expert whether the alterations had been technically necessary, the national courts had substituted the applicant’s artistic and journalistic choices regarding techniques of presentation. 

The Court notes at the outset that the injunction order constituted an interference with the applicant’s right to freedom of expression and was based on the relevant provisions of the German Civil Code. It further notes that it was aimed at the protection of the reputation and rights of others. Therefore, the Court will limit its assessment to the question of whether the injunction order was “necessary in a democratic society”.

The Court further notes that the present case requires an examination whether a fair balance has been struck between the applicant’s right to freedom of expression as guaranteed by Article 10 of the Convention and Dr Sommer’s right to protection of reputation under Article 8. Having considered on numerous occasions similar disputes requiring an examination of the fair balance, the Court refers to the general principles relating to each of the rights in question established in its case-law (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83-92, 10 November 2015; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-88, 7 February 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-107, 7 February 2012).

The Court has, in particular, identified the following relevant criteria in the context of balancing the competing rights: contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication and, where appropriate, the circumstances in which the photographs were taken. Where it examines an application lodged under Article 10, the Court will also examine the way in which the information was obtained and its veracity, and the severity of the penalty imposed on the journalists or publishers (see Couderc and Hachette Filipacchi Associés, § 93;Axel Springer AG, §§ 90-95; and Von Hannover (no. 2), §§ 109-113, all cited above) 

Turning to the facts of the present case, the Court observes that the photomontage was embedded in an article regarding the management style of Dr Sommer and the consequences for German Telecom. German Telecom, a former State-owned monopoly of telephone and internet services, was converted into a stock corporation and its shares were intensely advertised as “people’s shares” (Volksaktie). Given that the company still had a leading market share, the Court accepts that the management style of the company’s CEO was an issue of public interest.

Regarding the degree of notoriety of the person concerned in the publication, the Court has previously stated that it is, in principle, primarily for the domestic courts to assess how well known a person is, especially where he is mainly known at national level (see Axel Springer AG v. Germany, cited above, § 98). In the present case, the Federal Court of Justice came to the conclusion that Dr Sommer was a “relative figure of contemporary society”, due to his position as CEO of German Telecom. This assessment is in compliance with the Court’s case-law, as it has previously held that a manager of one of the country’s most prestigious enterprises can be considered by his very position in society to be a public figure (see Verlagsgruppe News GmbH v. Austria (no. 2), no. 10520/02, § 36, 14 December 2006).

The Court further observes, regarding the subject of the news report, that the article in issue concerned the professional conduct of Dr Sommer and that the photograph used showed merely his head, but did not reveal any private details as such. Furthermore, the original photograph was already in existence and had been retrieved from the image database of the Associated Press. In this context, the Court also notes that Dr Sommer did not complain to the national courts about the publication of his photograph as such, only about its manipulation.

As far as the content and form of the publication are concerned, the Court notes that this criterion is, in the present case, closely connected to the veracity of the information and therefore both criteria have to be assessed together. The Court observes that the photomontage in issue conveyed the message of the article in a satirical way. It transferred the criticism of Dr Sommer’s autocratic management style and the possible consequences for the company by showing him sitting carefree on top of a crumbling “T”, the logo of German Telecom. However, the Court also observes that the Federal Constitutional Court found that the alterations of Dr Sommer’s head did not point towards the satirical message of the photomontage, but that the applicant had used a photograph of him to depict reality and make the person identifiable. Furthermore, the appointed expert established that the photograph of Dr Sommer’s head had been vertically stretched by 8.7% and horizontally shrunk by 4.5%. Based on the conclusion that the depiction of the person in the illustration had had no separate satirical value but appeared to replicate reality, the Court of Appeal established that the manipulation was a false representation of Dr Sommer. It further considered this untrue, unfavourable and disadvantageous depiction noticeable but not technically necessary. Consequently, the national courts concluded that the manipulation had reached a sufficient level of seriousness to constitute a violation of Dr Sommer’s right to protection of reputation. The Court sees no reason to disagree with the national courts’ finding that, for an ordinary reader, the manipulation was noticeable and Dr Sommer was perceived in an untrue and unfavourable light. Therefore, the Court considers the conclusion that the photomontage had reached a sufficient level of seriousness to constitute a violation of the right to protection of reputation not unreasonable (see, mutatis mutandis, Von Hannover v. Germany (no. 3), no. 8772/10, § 52, 19 September 2013).

Regarding, lastly, the severity of the sanctions imposed on the applicant, the Court considers that, although every sanction is capable of having a chilling effect on an applicant, in the present case the sanctions imposed were lenient, as the national courts only ordered the applicant to refrain from any further publication.”