Princess Caroline's daughter - BGH on the legality of the publication of photographs showing children of famous parents at public events

Princess Caroline

Privacy and personality rights: should there be special rules when it comes to media reports concerning children of celebrities? Some cases appear clear-cut, such as the case of intrusive media reports about J.K. Rowling's child (see also IPKat post here) , other cases are more ambiguous (see here).  

The German Federal Court of Justice (Bundesgerichtshof) recently had to decide in a case concerning a news magazine report about a figure skating competition in which Alexandra, daughter of Princess Caroline of Hanover (nee Princess Caroline of Monaco, left), had participated (case reference  VI ZR 125/12 of 28 May 2013).  Glamorous Princess Caroline is, inter alia, well known for her numerous court battles – often through the (German) courts –by which she has tried to prevent the publication of photos about her private life in the media (see IPKat reports here).

The report in glossy entertainment magazine "Freizeit Revue", however, was illustrated with several photographs of daughter Princess Alexandra (born in 1999), showing the girl as an ice skater at a public figure skating competition.  The photos included the somewhat uninspired caption "Ice Princess Alexandra."  The claimant, Princess Alexandra (or her lawyers, really), argued that the magazine had infringed her right’ "right to her own image" under § 22 of the German Act on the Protection of the Copyright in Works of Art and Photographs (Kunsturhebergesetz, KUG). The magazine’s publishers were of the view that their actions were protected by the human right of freedom of expression and freedom of press under Article 5(1),(2) German constitution.

Is this Kat called Alexandra?

By way of background: the so-called ‘‘right to one’s own image’’ (Recht am eigenen Bild) under § 22 KUG is a special manifestation of the general personality right, as protected by the German constitution in its Articles 1(1) and 2(1) and provides a “tiered protection”. Under § 22 KUG, an ‘‘image’’, which includes any kind of presentation that reproduces the appearance of a person, so as to be identifiable by third parties, may only be circulated in public with the consent of the person depicted. §§ 22 and 23 KUG contain detailed provisions concerning the protection of an individual’s image.

The sixth Civil Senate of the Bundesgerichtshof disagreed with the Court of Appeal and denied the Princess’ claim for an injunctive relief and instead allowed the re-publication of the offending images.  Referring to its own precedents, the court found that the publication was admissible as a report relating to an event of contemporary history according to the concept of “tiered protection” under §§ 22, 23 KUG, by which the admissibility of the publication of images had to be judged.  The court stated that this was not changed by the fact that the claimant was only eleven years old when the pictures had been taken.  Nonetheless, the Bundesgerichtshof stressed that children, including those of famous parents, required a high level of protection.  As such, each case had to be judged by its own merits and careful balancing of the child’s personality rights on the one hand and the right of freedom of expression and freedom of press, with a special regard to the information interest, had to be carried out. In this specific case, there was no reason to assume that the offending photos showing the Princess competing at a public event could negatively affect the development of the child. Under these circumstances, the defendant’s interest in the publication took precedence over the interests of the defendant’s personality right protection.

This case could have perhaps gone either way but the Bundesgerichtshof took a sensible approach given Princess Alexandra took part in a public competition under her own name so that there was no realistic expectation of privacy.

Mother Caroline's latest privacy quest before the ECHR (Case of von Hannover v. Germany (no. 3) (application no. 8772/10)), which she lost, will be covered in a separate blog post...