How much protection against the media is an eleven-year-old child of a celebrity entitled to while participating in a sports competition? The German Federal Court of Justice (Bundesgerichtshof) answered this question recently (case reference VI ZR 125/12 of 28 May 2013):
At the age of eleven, Princess Alexandra, daughter of Princess Caroline of Hanover, had participated in a figure skating competition in Toulon (France). While the competition had attracted only regional attention, “Freizeit Revue”, a German glossy entertainment magazine, published an article on Alexandra being a participant of the competition. The article did not only cover this topic but also commented on other issues such as Princess Caroline´s male Italian companion. The report was illustrated with several photographs showing Princess Alexandra as a figure skater together with the caption “With her performance, Ice Princess Alexandra impressed the audience – but was she able to convince the jury, too?”
Alexandra sought injunctive relief with regards to three pictures and the caption to these pictures showing her as a figure skater. In accordance with the court of first instance, the court of appeal judged in favor of Princess Alexandra. It was emphasized that Alexandra was only eleven years old when the pictures were taken. In the first and second instance court’s view, she therefore required a very high level of legal protection to ensure her right to an undisturbed personality development. This right is a component of the general personality right as protected by the German Constitution in its Article 1 (1) and Article 2 (1). According to both courts, the child´s right prevails over the magazine´s rights to freedom of expression and freedom of the press as protected under Article 5 (1) of the German Constitution.
The Sixth Civil Senate of the German Federal Court of Justice now took the opposite view: it dismissed the case – despite the claimant´s age. By allowing the magazine to publish the photographs along with the caption, the court strengthened the magazine´s rights to freedom of expression and freedom of the press.
To start with, the court explained the concept of “tiered protection” (“abgestuftes Schutzkonzept”) under §§ 22, 23 of the German Act on the Protection of the Copyright in Works of Art and Photographs (Kunsturhebergesetz, KUG). This concept sets the standards for the admissibility of the publication of the photographs. According to the German Federal Court of Justice, the figure skating competition was an event of contemporary history in terms of §§ 22, 23 KUG despite its relevance being only regional. Thus, photographs may be published unless the personality right of the person depicted in the photographs outweighs the publisher´s rights. Hence, the personality right on the one hand and the rights to freedom of expression and freedom of the press on the other hand needed to be balanced against each other. Neither the standard of the magazine nor the presentation of the report and the photographs were of significance in this context. In respect of the affected rights, the court emphasized the connection of the photographs, showing Princess Alexandra as a figure skater, to the figure skating competition as an event of contemporary history, even though the report also focused on the girl’s mother, Princess Caroline. Hence, publishing these photographs was not illegal.
What is most significant about the German Federal Court of Justice´s judgment is that the claimant´s age does not automatically affect the legality of the publication. Without doubt, it is accepted that children need special protection to protect their development from damage. This applies also to the children of celebrities, such as the claimant. Nevertheless, the individual circumstances of each case need to be considered. In this specific case, the publication of the photographs had not affected Alexandra´s development negatively since the pictures were relating to the figure skating competition. As the court rightly pointed out, nowadays everyone who is participating in sports competitions needs to be aware of spectators taking pictures and videos, even if these people aren’t representatives of the press. So the link between the pictures and the competition and the spread of digital technology are crucial factors which must be taken into account when assessing the legality of a publication, even one involving an eleven-year-old girl.
So all in all, the judgment makes very clear that the protection of a celebrities´ child cannot be taken for granted. Other rights protected by the German constitution such as the rights to freedom of expression and freedom of the press might well prevail.
