A photo, that shows a prominent person and is used by a wide audience as a symbolic image (here: for a cruise) is seen, may – even in an editorial context – not unlimited for the illustration of a press article (here: about a sweepstakes, whose main prize is a cruise) be used. Rather, the symbolic character of the photo is 22, 23 KUG to comprehensively weigh up the conflicting interests.
JUDGMENT BGH I ZR 207/19 from 21. January 2021 – holiday lottery
AND § 22 Sentence 1, § 23 Abs. 1 No.. 1, Abs. 2; Civil Code § 823 Abs. 1, Abs. 2 Ah, Bf, g, § 1004 Abs. 1 Sentence 2
BGH, Judgment of 21. January 2021 – I ZR 207/19 – OLG Cologne, LG Cologne
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The I. Civil Division of the Federal Court of the oral negotiation 24. September 2020 by the presiding judge Prof. Dr. Koch, the judges Prof. Dr. Schaffert und Dr. Loeffler, Judge Dr. Schwonke and the judge Odörfer
hereby:
On appeal by the defendant, the judgment is of 15. Civil Senate of the Cologne Higher Regional Court of 10. October 2019 In addition, with rejection of the appeal, insofar as, As the Beru-Fungsgericht with regard to the application for information aimed at information 2 recognized to the disadvantage of the defendant.
To the extent of the cancellation, the judgment of the 28. Civil Chamber of the Cologne Regional Court of 30. January 2019 partially modified to the defendant's appeal.
The lawsuit is requested with regard to the Kla-Gefragent 2 abgewiesen.
The defendant is imposed on the costs of the revision.
By rights
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Facts:
The plaintiff, Sascha Hehn, is an actor and had in the period from 2014 to 2019 in the ZDF series “The dream ship” in the episodes 71 to 83 the role of the captain “Victor Burger” other. The series depicts events on a cruise ship, that is on its way to a different holiday destination in each episode.
The defendant publishes, among other things, the newspaper “Picture on sunday”. at the 18. February 2018 appeared on page 13 the newspaper under the heading “Win cash and a dream trip” the following article about the promotion “holiday lottery”:
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The entire newspaper page was used for the article except for the left column. There was a photo below the heading, on which the plaintiff was shown in their respective roles with two other actors in the series. The photo took about a third of the article and was supplemented by the caption: “Sascha Hehn, Heide Keller and Nick Wilder (from right) you won't meet. But like on the real TV dream ship, they sail into the most beautiful bays and most exciting cities”.
Under the photo was that “holiday lottery” explained. In addition, four stylized suitcases were shown. Each suitcase was provided with an individual number code printed on it. Readers were able to 24. February 2018 a 24 Clock by call or SMS to a value-added service number at regular costs of each 50 Check cents, whether on these numerical codes a profit of cash amounts of 100 €, 1.000 € or 5.000 € did not apply. A 13-day cruise on the AIDAnova to the Canary Islands was also raffled among all participants. This was in the lower part of the article under the heading “So you can set sail on the luxury ship” detailed.
The plaintiff, who had not consented to the use of his portrait or name, unsuccessfully requested the defendant to submit a declaration of cease and desist and to provide information. The plaintiff takes the defendant to cease and desist by way of a step action, Provision of information, Reimbursement of warning costs (first stage) and payment of a reasonable license fee (second step) in claim.
The district court took place at the first stage by partial judgment (LG Cologne, Judgment of 30. January 2019 28 The 216/18, juris). The appellate court has the defendant's appeal addressed here (OLG Cologne, AfP 2020, 73) rejected and the defendant was re-version of the first instance of judgment,
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to refrain from avoiding it in more detailed ordinance, The portrait and/or the name of the plaintiff, As in the edition of the “Picture on sunday” from 18. February 2018, Seite 13, happen, to publish and/or spread and/or publish and/or distribute;
to provide the plaintiff information about the pressure edition of the “Picture on sunday” from 18. February 2018;
an den klager 593,19 € nebst Zinsen in Höhe von fünf Prozentpunkten über dem jeweiligen Basiszinssatz seit dem 18. April 2018 to pay.
With the revision approved by the Court of Appeal, their back the plaintiffs are requested, the defendant continues to pursue its application to dismiss the lawsuit.
Reasons:
A. Das Berufungsgericht hat ausgeführt, When weighing up the conflicting interests in the specific individual case, there is a claim for injunctive relief by the plaintiff. The information value of the publication of the plaintiff's portrait is low and its publication is not suitable, to contribute to public opinion formation. Defending in favor of the plaintiff, that his portrait was also used for commercial and commercial purposes. Nothing else applies to the right to failure to serve the name. The claims for the provision of information and reimbursement of AB reminder costs also exist.
B. The defendant's revision is only with regard to their conviction for providing information on the printing edition of the “Picture on sunday” from 18. February 2018 begründet (In addition B IV). im Übrigen ist sie unbegründet. The plaintiff has the claimed injunctive relief for the use of his portrait (Dazu b i) and his name (In addition B II) to. He can also request reimbursement of the warning costs incurred (In addition B III).
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I. The Court of Appeal is right 1004 Abs. 1 Sentence 2 analog, § 823 Abs. 1 and 2 BGB Zuer-Can. The defendant intervened in the property law of the law of the law in the plaintiff's own image (Dazu b i 1). This procedure was not in accordance with §§ 22, 23 Kug justified (Dazu b i 2). The risk of repetition required for the lower laser claim is available (Dazu b i 3).
1. This Court has consistently held, that the defendant intervened in the asset law of the law of the law in the plaintiff's own image.
A) Die Entscheidung, Whether and in what way your own portrait should be made available for wiring purposes, is more important – Asset right-wing – Part of the right of personality (BGH, Judgment of 31. More 2012 – I ZR 234/10, Wheat 2013, 196 RN. 15 = WRP 2013, 184 – Playboy on Sunday, mwN). The unauthorized commercial use of a portrait for advertising purposes therefore constitutes an interference in the property allocation content of the law in the own image and basically justifies – Like every unauthorized intervention in the right in your own picture – A claim for injunctive relief (vgl. BGH, Judgment of 29. September 2020 – VI ZR 445/19, Zumrd 2020, 637 RN. 13).
However, there is no interference in the property law allocation content of the right to your own image, When the press reports on the public's interests and is not apparent, that commercial interests of a person previously unknown to the public, The subject of reporting is, could exist. In such cases, the press is not concerned with, the person's commercial exploitation of exploitation of the person, The report is reported, toast. Rather, the focus is on the interest in reporting. The possibly existing intention, By designing the
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Message with a picture of the person concerned to achieve additional profit by a steep refusal of the edition, Is just a participating element. In such cases, the publication of the image does not provide any “Commercial exploitation” in the sense of exploiting the exploitation options that occur to the picture (vgl. BGH, Judgment of 20. March 2012 – VI ZR 123/11, NJW 2012, 1728 RN. 28; Wenzel/Burkhardt, The right of the word- and image reporting, 6. Ed, Get. 14 RN. 7; Soehring/Hoene in Soehring/Hoene, Press Law, 6. Ed, RN. 32.23; Fricke in Wandtke/Bullinger, Copyright, 5. Ed, § 22 KUG RN. 26).
The Question, Whether a portrait of advertising, So commercial, used is what is, From the point of view of the average reader (vgl. BGH, Judgment of 14. March 1995 – VI ZR 52/94, WRP 1995, 613 [juris Rn. 12]). An interference in the property allocation content of the right in your own image is particularly possible, If the use of the portrait the advertising- and the image value of the shown, by marketing the person of the deported, for example (vgl. BGH, Wheat 2013, 196 RN. 17 – Playboy on Sunday). However, it is also sufficient, However, leads to a lower weight of the input, If there is mere attention advertising, So the viewer's notice should only be directed to the advertised product (vgl. BGH, Judgment of 29. October 2009 – I ZR 65/07, Wheat 2010, 546 RN. 19 F. = WRP 2010, 780 – The stumbling darling, mwN).
The principles developed for the assessment of the use of portraits in the context of advertisements apply equally to a redactic-only image reporting, the (also) The self -promotion serves (vgl. BGH, Wheat 2013, 196 RN. 17 – Playboy on Sunday). The use of the portrait-s of a prominent person intervenes on the title page of a magazine on the basis of the advertising function of the title sheet in the property law allocation content of the law in the own image. This applies even then, When the picture with one
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Reporting about the person shown is linked (vgl. BGH, Judgment of 11. March 2009 – I ZR 8/07, Wheat 2009, 1085 RN. 28 = WRP 2009, 1269 – Who will be a millionaire?; Judgment of 18. November 2010 – I ZR 119/08, Wheat 2011, 647 RN. 36 = WRP 2011, 921 – Market & People).
B) This Court has adopted, The portrait protection from the §§ 22, 23 KUG also intervenes, when – wie hier – The picture in question only resigned to the shown in the context of a known roller display. The defendant has neither direct its press certificate nor the main gain in their “Vacation lots” Advertised income immediately earned. Nevertheless, she has her competition as such (also) Advertised with a counterfei and name of the plaintiff. The fundamental assignment of the competition for the rehabilitation activity of the press organ does not necessarily mean, that this cannot also be used for a commercial use of the defendant's right of personal rights. Ultimately, it should be differentiated afterwards, Whether in the specific case there is still a reference between the portrait and the editorial target contribution and its context, Or whether the marketing is primarily in the foreground. This leads to the acceptance of advertising use. There is not just a pure attention advertising, but from the point of view of the average reader at least also a slight form of an image transfer. Already the caption (“Like on the real TV dream ship”) draw a confident comparison to the series and transfer its popularity to the main gin of the price puzzle. This comparison also refers to the people shown in their equally popular series roles. After all, could not be taken into account, that the defendant has its expenses for the profit game – beyond the simple sale of the newspapers, which one illustration in the inside of the newspaper could hardly seriously increase – At least to a certain extent, refinanced with the usual reimbursement there.
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C) This assessment withstands legal review.
aa) Insofar as the Court of Appeal on the advertising disguised for the ban on § 5a ABS. 6 UWG (§ 4 No.. 3 UWG aF) referred to the case law, However, this can only be removed for the dispute, that price puzzles can generally be assigned to the editorial and responsible area of a magazine in the broader sense, However, other standards apply to their betting law assessment law, that serves to inform and the opinion formation of the readers. This follows from, that the average, Situation-adequate attention readers in the competition regularly also recognizes a form of the publisher's self-promotion for the press certificate and therefore assesses it differently than contributions, The closer editorial area are (vgl. BGH, Judgment of 31. October 2012 – I ZR 205/11, Wheat 2013, 644 RN. 17 = WRP 2013, 764 – Price puzzle profit praise V).
bb) The Court of Appeal rightly accepted, that the plaintiff is affected by his right to his own image.
(1) For this is without concern, that the photo at issue does not have the Klä-Ger as a private individual, but in his role as captain in the television series “The dream ship” zeigt, Since the plaintiff's person does not completely resign behind the series role. This can also be seen from it, that in the image sub-script the name of the plaintiff and not the name is mentioned, which he wears in the television series.
(2) An interference in the property allocation content of the law on the plaintiff's own image of the right is already followed by this, that the use of the photo at issue by the defendant – as accepted by the Court of Appeals without legal errors – To a certain image transfer from the plaintiff in
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led to the main prize of the defendant's prices. The defendant has in the issue of the “Image on Sunday” from 18. February 2018 known to this- and popularity for your action “Ur-leaf lotto” and therefore indirectly used for your press product. In this respect there is a relevant difference to the – non -disputed – “holiday lottery” from 11. February 2018, that the defendant, according to the Court of Appeals, has illustrated with a couple raging on the beach.
2. The interference in the right in the plaintiff's own image is measured by the §§ 22, 23 Kug illegal.
A) As a result, it is not subject to any concerns, that the court of appeal is the legality of the defendant's actions according to the graded protection concept of §§ 22, 23 Has judged KUG.
aa) According to this, portraits of a person may only be distributed with the consent of the one depicted (§ 22 Sentence 1 KUG). Such consent is missing, the spread of a portrait is only permitted, When it comes to the area of contemporary history (§ 23 Abs. 1 No.. 1 KUG) or one of the other take-care acts of § 23 Abs. 1 CUG can be assigned positively and the legitimate interests of the depicted are not violated (§ 23 Abs. 2 KUG).
(1) Decisive for the question, whether it is a portrait in the field of contemporary history, Is the concept of contemporary events. This must not be understood too closely. It is not limited to processes of historical or political importance, but is to be determined from the interests of the information in publicity. With a view to this, he generally includes the action of the time, So all questions from general social inte-law (vgl. BGH, Wheat 2013, 196 RN. 22 – Playboy on Sunday; BGH, Judgment of 7. July 2020 – VI ZR 250/19, Zumrd 2020, 642 RN. 12; BGH, Zumrd 2020, 637 RN. 21, further references). It belongs to the core of freedom of the press, dass die
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Press within the legal limits, a sufficient scope, in which she can decide according to her journalistic criteria, Which claims public interest (BGH, Zumrd 2020, 642 RN. 13; Zumrd 2020, 637 RN. 21, further references). Also entertaining contributions, About the private- and everyday life of prominent people, basically take part in this protection, Without the peculiarity or level of the respective contribution or the press product (vgl. BGH, Zumrd 2020, 642 RN. 13).
On § 23 Abs. 1 No.. 1 However, KUG cannot refer to, Who does not comply with the general public's interest worthy of protection, but by exploiting the portrait of another for advertising purposes alone wants to satisfy his business interest (BGH, Judgment of 26. October 2006 – I ZR 182/04, BGHZ 169, 340 RN. 15 – Resignation of the finance minister; BGH, Wheat 2013, 196 RN. 22 – Playboy on Sunday, further references). Dabei ist jedoch zu beachten, that also your own advertising for a press product – Just like the press product itself – the protection of press freedom in accordance with Art. 5 Abs. 1 Sentence 2 GG enjoys (vgl. BGH, Judgment of 14. More 2002 – VI ZR 220/01, BGHZ 151, 26, 30 F. [juris Rn. 13]; BGH, Wheat 2013, 196 RN. 27 – Playboy on Sunday, mwN), Because it promotes sales of the press product and in this way contributes to the spread of the information (vgl. BGHZ 151, 26, 30 F. [juris Rn. 13]).
(2) If the scope of § 23 Abs. 1 No.. 1 KUG is opened, requires the assessment, whether a portrait is to be assigned to the area of contemporary history, one – Revision law is fully checked – Weighing between the plaintiff's interest in the protection of his personality and the information interest perceived by the defendant of the public (vgl. BGH, Wheat 2009, 1085 RN. 15 – Who will be a millionaire?; Wheat 2010, 546 RN. 16 – The straw-chilling darling; Wheat 2011, 647 RN. 29 – Market & People; Wheat 2013, 196
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RN. 23 – Playboy on Sunday; Zumrd 2020, 637 RN. 21, further references). The test is to be used as a basis for a normative yardstick, which takes sufficient account of the conflicting interests (vgl. BGH, Wheat 2009, 1085 RN. 15 – Who will be a millionaire?).
In the weighting of the general public's interest in the information, the information value of the illustration and the accompanying reporting is of crucial importance (BGH, Wheat 2009, 1085 RN. 17 – Who will be a millionaire?). Such a weighting is not due to freedom of the press (Art. 5 Abs. 1 Sentence 2 GG) ausgeschlossen, Because the right of the press, according to public criteria, to deprive the subject and content of your reporting, not freed from the consideration with the protected legal positions of the, The report is reported (vgl. BGH, Wheat 2009, 1085 RN. 19 – Who will be a millionaire?). The press is fundamentally free, To illustrate text reports through images, Without a need for needs, Whether the revenue was initiated (vgl. BGH, Judgment of 9. April 2019 – VI ZR 533/16, Wheat 2019, 866 RN. 10; BGH, Zumrd 2020, 637 RN. 21, further references). If the press product contains a picture report reimbursement of a prominent person under the protection of the freedom of the press, can also be advertised on the Ti-Telblatt with their portrait. Reporting is only exhausted in it, to create a reason for the depiction of a prominent person, Because a contribution to public opinion formation is not recognizable, limits the perpetrability of the depicted not only the reporting, but also the advertising for the press product (BGH, Wheat 2009, 1085 RN. 28 – Who will be a millionaire?; Wheat 2013, 196 RN. 39 – Playboy on Sunday, further references).
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In the weighting of the right of personal rights of the shown, the in-stage of the intervention in question must be taken into account, which can also affect an unwanted recovery for foreign commercial advertising interests (vgl. BGH, Wheat 2009, 1085 RN. 25 – Who will be a millionaire?, mwN). An intervention has special weight, When advertising gives the impression, The person shown identified with the advertised product, Recommend it or prices it (BGH, Wheat 2010, 546 RN. 19 – The stumbling darling; Wheat 2013, 196 RN. 25 – Playboy on Sunday). Significant weight comes to a procedure but also then, when – Without the image reporting can be found in an express recommendation of the shown for the product – The interest of the public in the person and its popularity is transferred to the goods through an immediate juxtaposition of the goods and the deported in the advertising, Because the viewer of the advertising establishes a mental connection between the shown and the advertised Pro-Dukt, which leads to an image transfer (BGH, Wheat 2009, 1085 RN. 29 ff. – Who will be a millionaire?, mwN; Wheat 2010, 546 RN. 19 – The stumbling darling; Wheat 2011, 647 RN. 31 – Market & People; Wheat 2013, 196 RN. 25 – Playboy on Sunday). In contrast, the intervention has lower weight, If the mapping of a prominent person in advertising has neither recommendation characters nor leads to an image transfer, but only draws the viewer's attention to the advertised product (BGH, Wheat 2010, 546 RN. 19 – The stumbling darling; Wheat 2011, 647 RN. 31 – Market & People; Wheat 2013, 196 RN. 25 – Playboy on Sunday, mwN). The basic rates developed for the assessment of the use of portraits in the context of advertisements in the context of advertisements apply equally to editorial reporting, the (also) The self -promotion serves (vgl. BGH, Wheat 2013, 196 RN. 17 – Playboy on Sunday).
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It is still important for the consideration, Whether the interference in the right of personality is only concerned with its property law, which is only protected by simply protected law or, in addition. The only simply protected components of the personal rights of personal rights are not generally the priority over the constitutionally protected press freedom (vgl. BGH, Wheat 2011, 647 RN. 34 and 40 – Market & People).
bb) The graded protective concept of §§ 22, 23 KUG is in accordance (vgl. BGH, Wheat 2013, 196 RN. 13 – Playboy on Sunday; Zumrd 2020, 637 RN. 15, further references).
cc) It is also compatible with Directive 95/46/EC for the protection of natural per-sons when processing personal data and free data transfers, The action at the time of the dispute 18. February 2018 was still in force.
(1) Whether the scope of Directive 95/46/EC is open, cannot be concluded on the basis of the findings of the Court of Appeal. In their kind. 3 Abs. 1 The directive 95/46/EC applies to the auto-matized processing of personal data and the non-automated processing of personal data, which are saved in a file or should be saved. Personal data are according to Art. 2 For sure. a of Directive 95/46/EC All information about a specific or certain natural person; A person is considered to be determined, which can be identified directly or indirectly. The image of a person recorded by a camera falls under this term (vgl. ECJ, Judgment of 14. February 2019 – C-345/17, Wheat 2019, 760 RN. 31 – Buivids, mwN). The processing of personal data within the meaning of Art. 2 For sure. B of Directive 95/46/EC reveals every process carried out with or without the help of automated procedures
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or every series of transaction in connection with personal data such as collecting, Save, die Organisation, The storage, The start or change, Read out, Querying, The use, the disclosure by transmission, Distribution or any other form of the presentation, The combination or link as well as locking, Delete or destroy. The Court of Appeal did not make any findings on this, Whether the defendant fulfilled one of these facts when using the photo in dispute. According to the case law of the Court of Justice of the European Union, however, the (Video-)Recording of a person on the memory of a camera an automated processing of personal data within the meaning of Art. 3 Abs. 1 of guideline 95/46/EC (vgl. ECJ, Wheat 2019, 760 RN. 35 – Buivids, mwN). A storage of the photo on the defendant's servers as part of the manufacturing process and the preparation of a digital edition of the newspaper would also open the area of application of the guideline.
(2) Gemäß Art. 7 For sure. f of Directive 95/46/EC, the processing of personal data is permitted under three cumulative requirements, namely (1) a legitimate interest, that of the person responsible for the processing or from the or. the third is perceived, that or. which the data are transmitted, (2) the necessity of processing the personal data for the realization of the legitimate interest and (3) A lack of the fundamental rights and fundamental freedoms of the affected person (vgl. ECJ, Judgment of 29. July 2019 – C40/17, Wheat 2019, 977 RN. 95 = WRP 2019, 1146 – Fashion ID). This regulation is, among other things, through §§ 22, 23 CUG converted into German law, The one of the determination of the Federal Data Protection Act in accordance with § 1 Abs. 3 Sentence 1 BDSG AF in relation to public distribution as a special law (vgl. BAKE 150, 195 RN. 14 to 16). The under § 23 Abs. 1 No.. 1, Abs. 2 To be carried out
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Balancing interests meet the requirements of the species. 7 For sure. f of the Richtli-nie 95/46/EG. No different than when weighing up in accordance with Art. 7 For sure. f of Directive 95/46/EC are within the framework of § 23 Abs. 1 No.. 1, Abs. 2 KUG on the part of the data processing person in particular to take into account freedom of expression and the interest in the public's interest in the public (vgl. BVerfGE 152, 216 RN. 95 and 102 – Right to forgetting II; to § 29 Abs. 1 Sentence 1 No.. 1 and 2 Bdsg af, which also the implementation of species. 7 For sure. f of Directive 95/46/EC is used, vgl. BGH, Judgment of 23. June 2009 – VI ZR 196/08, BGHZ 181, 328 RN. 27; Judgment of 27. February 2018 – VI ZR 489/16, BGHZ 217, 350 RN. 51).
(3) The Question, Whether processing of personal data in the event of a dispute “Alone for journalistic purposes” In the sense of the species. 9 of directive 95/46/EC, Doesn't need a decision. According to this provision, the member states see for the processing of personal data, The alone to journalistry, Artistic or literary purposes takes place, Deviations and exceptions from Chapter III, IV and VI of Directive 95/46/EC only before, When this proves to be necessary, To Brin-gene. However, the artificial law does not contain a separate regulation for the public distribution of portraits for journalistic purposes, so that in these cases the §§ 22, 23 Can be applied.
dd) The request for injunctive relief based at the risk of repetition is only justified, If the defendant's complaint was illegal at the time of his presentation and is still illegal (st. Rspr.; For competition law cf.. BGH, Judgment of 6. June 2019 – I ZR 206/17, Wheat 2019, 1071 RN. 7 = WRP 2019, 1296 – Bread Guide; Judgment of 28. November 2019 – I ZR 23/19, Wheat 2020, 303 = WRP
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2020, 330 RN. 19 – Duties of the battery manufacturer, mwN). The question that was raised afterwards, whether the §§ 22, 23 KUG also after the AM 25. More 2018 the regulation came into force (EU) 2016/679 To protect natural persons in the processing of personal data, for free data traffic and to cancel guideline 95/46/EC (General Data Protection Regulation, GDPR) can still be used to use the portrait of a person by a press organ, can remain open in the present, because in the event of a dispute nothing is of course clear, that a consideration on the scale of the species. 6 Abs. 1 Unterabs. 1 For sure. f GDPR could lead to a different result. (1) In their kind. 2 Abs. 1 The General Data Protection Regulation applies to the completely or partially automated processing of personal data, as well as for the non-automated processing of personal data, which are saved in a file system or should be saved. Personal data are according to Art. 4 No.. 1 GDPR all information, which refer to an identified or identifiable natural person. The processing includes according to type. 4 No.. 2 GDPR every process carried out with or without the help of automated procedures or any such series of transaction in the hille with personal data such as collecting, Record that, The organization, Organic, The storage, The adaptation or change, Read out, Querying, The use, The disclosure through transmission, Distribution or another form of provision, the comparison or the link, The restriction, Deleting or annihilation. Not Art. 6 Abs. 1 Unterabs. 1 For sure. F GDPR is lawful, If it is necessary to safeguard the legitimate interests of the responsible or a third party, Unless the interests or basic rights and fundamental freedoms of the data subject, that require the protection of people who are drawn to people, outweigh. Art. 85 Abs. 1 GDPR determined, that the member states the right to protect personal data in accordance with
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this regulation with the right to freedom of expression and freedom of information, including processing for journalistic purposes and for knowledgeable, Artistic or literary purposes, Bring into harmony through legal prescriptions. If it is necessary, See according to Art. 85 Abs. 2 GDPR exceptions, among others, from Chapter II, To that also type. 6 GDPR belongs. Not Art. 85 Abs. 3 GDPR shares each Member State of the Commission on the basis of species. 85 Abs. 2 GDPR issued legal prescriptions, including all later changes, immediately.
(2) Das Berufungsgericht hat ausgeführt, It could be left, Whether the injunctive relief of the General Data Protection Ordinance will continue to continue to be assessed after the right to be assessed at the time of the last hearing. 1004 Abs. 1 BGB analog, § 823 Abs. 2 BGB, §§ 22, 23 Let the buffer be derived or now on § 1004 Abs. 1 BGB analog, § 823 Abs. 2 BGB, Art. 6 Abs. 1 GDPR is to be turned. Both in the context of § 23 Abs. 1 No.. 1 CUG as well as within the framework of the species. 6 Abs. 1 Unterabs. 1 For sure. f GDPR is offered a comprehensive weighing of the conflicting interests and positions protected by fundamental rights, which in principle must lead to the same result, if the scattering of the each set-the positions – wie hier – undisclosed. Can also stay open, Whether an application of the General Data Protection Regulation does not also include the flat rate exclusion of the application of it in § 19 of the Berli-ner data protection law for journalistic activities and this-it-iter. 85 Abs. 1 and 2 GDPR.
(3) The judgment of the court below, In a balancing on the scale of the species. 6 Abs. 1 Unterabs. 1 For sure. f GDPR would not be to set any other interests and positions protected by fundamental rights than in a weighing on
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Prestiget of §§ 22, 23 KUG, In principle,, but requires clarification. As part of a weighing on the scale of the species. 6 Abs. 1 Unterabs. 1 For sure. f GDPR would not be the fundamental rights of the Basic Law, but to consider that of the Charter of the fundamental rights of the European Union. In the case of an application under Union under Union law, this is primarily due to the fundamental application of application of Union law, Insofar as the protection of fundamental rights guaranteed by it – As can be assumed according to the constant case law of the Federal Constitutional Court – is effective (vgl. BVerfGE 152, 216 RN. 42 to 49 – Right to forgetting II). A complete standardization can be assumed in the matters recorded by the General Data Protection Regulation (vgl. BVerfGE 152, 216 RN. 41 – Right to forgetting II). In the event of a dispute would therefore be – the applicability of the DA General Protection Regulation subordinates – On the part of the plaintiff, the fundamental rights for respect for the private- and family life from art. 7 EU fundamental rights charta and for protection of personal data from ART. 8 EU fundamental rights charta, as on the part of the defendant, the fundamental rights for freedom of expression of opinion from Art. 11 EU fundamental rights charta and on entrepreneurial freedom from Art. 16 EU fundamental rights charta to consider consideration.
(4) The appellate court accepted it correctly and not attacked by the revision, One on the scale of the species. 6 Abs. 1 Unterabs. 1 For sure. f GDPR to be subject to interests must lead to the same result as one on the scale of §§ 22, 23 KUG. The Court of Justice of the European Union has already carried out to check the legality of data processing according to Directive 95/46/EC, that this requires the rights and interests opposite each other, in which the importance of the right of the data subject. 7 and 8 EU fundamental rights charta must be taken into account (vgl. ECJ, Judgment of 13. More 2014 – C131 / 12, Wheat 2014, 895 RN. 74 = WRP 2014, 805 – Google Spain and
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Google). There is nothing to be seen for it, that these principles should no longer apply when applying the General Data Protection Regulation. Also for a basic- Or there is no subordination of one of the fundamental rights affected on one side compared to the fundamental rights to be set on the other side in the Charter of Fundamental Rights of the European Union itself or in the case law of the Court of Justice of the European Union. (To the ratio of species. 7 and 8 EU fundamental rights charta. 11 EU Fundamental Rights Charter See. BVerfGE 152, 216 RN. 141 – Right to forgetting II).
(5) After that, no decision is required, Whether the use of the photo showing the plaintiff in the disputed edition of the “Picture on sunday” for the “holiday lottery” The Defendants “Journalistic purposes” In the sense of the species. 85 Abs. 1 and 2 GDPR has been carried out and the requirements for the enactment or the continuation of national regulations with a view to the constellation of the dispute are met (vgl. BGH also, Zumrd 2020, 642 RN. 10 mwN; Zumrd 2020, 637 RN. 15; To the statement of the question regarding the question, ob Art. 85 Abs. 1 GDPR contains an independent opening clause, vgl. Beckok.infomedienr/Cornils, 29. Edition [Stand 1. November 2020], Art. 85 GDPR RN. 20 to 27).
B) The Court of Appeal has the use of the plaintiff's portrait in a specific context measured by the graded protective concept of §§ 22, 23 Kug considered inadmissible. Contrary to the opinion of the regional court, admission to a consideration is not excluded because of the persecution of commercial targets by the defendant. This could be conceivable in unique cases of classic advertising, But there is no such case here. With the imprint of the picture, the defendant did not solely pursue com-merry interests, but at least also satisfied certain information on information from the general public. In any case, in conjunction with the image sub-script, the reader can take the publication of the picture, that
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the plaintiff to the on -board staff of the “Dream ship” belong and with this one of the “most beautiful bays and most exciting beaches” to “sail” care. In addition, a subconscious follows from the picture (Re)Update the one with the “Dream ship” connected special aesthetics and symbolism as a symbol for escapis and romance. The defendant therefore not only created any reason to map the prominent plaintiff; Rather, the photo illustrates at least context -friendly its price statement with the cruise to be won there, among other things.
As part of the consideration, the plaintiff's interests worthy of protection are deliberately. The publication of his portrait contains a low information and is also not suitable, to make a significant contribution to public opinion formation. There is more of a repetition of information, who were already known to a wide audience from the TV series. Even if you wanted to build on a symbolic character of the photo, this does not come to light in the specific case. Which ship it is, Only the connoisseur of the series or the reader of the caption. A symbol image is such dependent on the previous knowledge of the series or on the accompanying word reporting, the power of action of the photo emphasized by the defendant could not be rated highly in the consideration. Otherwise, almost every picture of a prominent person could be explained by the person of a corresponding context to the SYM-BOL for certain of the person in a role or other function..
To be taken into account in favor of the defendant, that the plaintiff was only shown in his positively stated series role and thus when working in his social sphere. In view of the anchoring of the TV series in general emphasized by the defendant
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the plaintiff, at least within certain limits, have to accept it as a result of his own decision to take over the role, That he with the “Dream ship idyll” be associated. Also be not a classic one (Testimal-)Advertising takes place. In addition, there could also be a in-formation request protected by the freedom of the press, to awaken or increase the attention of the reader by adding portraits of the persecuted persons of the perspective of an editorial word report. However, the plaintiff is only indirectly involved in the described reminiscences. In addition, a pure interest in the mere attention of attention when weighing up should be weighted more. In favor of the plaintiff, in addition to the low information mation content of the publication of the portrait, speaking decisively, that it was also used for commercial and commercial purposes.
C) This assessment withstands the legal review in the result. The use of the plaintiff's portrait in “holiday lottery” The defendant is not in accordance with §§ 22, 23 Kug justified.
aa) A consent of the plaintiff in accordance with § 22 Sentence 1 KUG is not available.
bb) The appeals of the appeal has been correct and unable to, that the scope of § 23 Abs. 1 No.. 1 KUG is opened. The use of the plaintiff's photo did not only serve the defendant's private business interest, but also a protective-sausage interest in the general public. On the one hand, the appeals were rightly based on the role of the plaintiff as a captain in the television series “The dream ship” And on the other hand, placed on the symbol power in this television series.
cc) The attacks of the revision against the 23 Abs. 1 No.. 1 The result of the Court of Appeal does not penetrate the result
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through. The plaintiff's interests are to be weighted higher in the event of a dispute than that of the defendant.
(1) The appeals of the appeal in favor of the defendant has taken into account, that the type of representation has an independent injury content, Because the plaintiff does not provide an enforceable manner, but is shown in his series role, that affects his social sphere. The plaintiff is also only in the use of portraits – in a simple legal point of view – Asset assignment content of his personal rights and not also in his – also guaranteed constitutional – ideal component affected (vgl. BGH also, Wheat 2011, 647 RN. 34 and 40 – Market & People).
(2) However, the revision is rightly opposed to the acceptance of the Court of Appeal, The symbolic character of the illustration at issue does not come to light particularly strongly. Rather, in favor of the defendant, the defendant must be placed in consideration, that she used the plaintiff's portrait in a photo, that also as a symbol image for a cruise in the sense of a “Dream trip” and thereby partially detached from the person of the plaintiff.
For this, the overall impression of the publication in question is largely important. It is not necessary, that the symbol chamber of a photo is already clear from it itself; The caption and/or the accompanying word reports must also be included in the consideration. The one also flows – Rightly highlighted by the revision – Air, that the photo is not the plaintiff alone, but together with the actors Heide Keller and Nick Wilder, which was involved in the television series at the time. After that, the reader will be the photo on the basis of the caption of the 18. February 2018 current on -board staff from the television series “The dream ship” have recognized.
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The intensity of the symbolic power issued by the photo at issue depends on the prior knowledge of the reader via the television series. The order court has correctly carried out in relation to the information conveyed by the publication, that this one “wide audience” be known. As far as the revision also claims, It should be out of this, that with one “very large proportion of the average readership” of the article at issue, the necessary prior knowledge is present, On the other hand, this does not find any precipitation in the actual findings of the order court and is therefore unreserved as a new lecture in the revision instance (§ 559 Abs. 1 ZPO). However, the revision rightly notes, that the general understanding of the symbolic character of the photo is not necessary to the current spectator of the television series “The dream ship” Is limited, but can also extend to people, which you saw at earlier times or the necessary information from other sources. However, the Court of Appeal took this into account, in -gle it has carried out it, that the series in general consciousness and language use is anchored.
The photo at issue is then made by a wide audience as a symbol image for a cruise in the sense of a “Dream trip” viewed, but does not lead to it, that it – even in an editorial context – Schran-Kenlos can be used to illustrate a cruise. Rather, the symbolic character of the photo must be set in the comprehensive weighing of the opposing interests. The partial decoupling of the motif from the person of the plaintiff caused the interference with his right of personality appears to be less serious. Here is also important, that the plaintiff – As stated by the Court of Appeal – The emergence of the symbolism ultimately approved by taking over the series role.
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(3) The acceptance of the appellate court also attacked by the revision, The publication of the portrait is not suitable, to make a significant contribution to public opinion formation, on the other hand, is not objectionable.
The Court of Appeal has contradicted this assessment from the one he did not completely negate, but for low-considered information value of the portrait use in the context of publication. With regard to the person of the plaintiff and his role as captain of the “Dream ship” the appellate court correctly carried out, Only information would be repeated, who are already known to a wide audience from the television series. This is not an inadmissible assessment of the articles of dispute (vgl. BVerfge 120, 180, 206 [juris Rn. 67]) yet – How the revision complains – A distinction between valuable and worthless information or default debates. The Court of Appeal also did not misjudge the principle in the case law, that opinion form can also take place through entertaining contributions (vgl. BGH, Judgment of 28. October 2008 – VI ZR 307/07, BGHZ 178, 213 RN. 13; BGH, Wheat 2019, 866 RN. 9; Zumrd 2020, 642 RN. 13, further references).
The revision sees a contribution to opinion formation, especially in the (Re-)Update of the image of a cross ride drawn in the television series; The reader will also be excited to think about, whether the raffled cruise corresponds to this picture, and plan his next vacation. However, she has not named any debate in kind, at which the plaintiff's portrait IL-Lustrated “holiday lottery” contributes to public opinion formation.
(4) The revision also turns against it without success, that the Beru-Fesungsgericht has given decisive importance of the most commercial use of the portrait of the Klä-Ger in the event of a dispute.
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In the event of a dispute, a commercial focus of the “Vacation lots” go out. The low information value of the portrait usage flows into this assessment (vgl. For this RN. 55 to 57) as well as the published publication in dispute overall. Even if that “holiday lottery” that through type. 5 Abs. 1 Sentence 2 GG and type. 11 EU fundamental rights chart to be attributed to freedom of the press, the defendant sets it from the point of view of the average reader – not opinion -forming – Entertainment of the readership, To bind their own press product and to increase attention to this. Another indication of the commercial orientation of the “Vacation lots”, which the Court of Appeal also correctly saw, lies in the at least partial refinancing of the competition by added value service numbers.
For the examination, With what weight the commercial use of a portrait is to be placed in the balancing of interests, the court of appeal correctly has the content of the content between the photo used and the one hereby illustrated – Protected by press freedom – Post parked. Such an examination does not lead to disproportionate limitation of the defendant's freedom of the press, an editorial contribution to illustrations, and also not for the revision feared “chilling effects” For the press in such a way, that the editorial use of portraits arbitrarily in defense claims of the person depicted. It is much more consequence of the 22, 23 Major weighing up in the way. Would use any use of portraits, with which, in addition to commercial, editors also persecuted, privileged due to freedom of the press, this led to a extensive hollowing out of the right in the plaintiff's own image of the defendant's business interests.
According to this, there is a weak reference between the plaintiff's portrait and the competition in the event of a dispute. The information, The contribution
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With a view to the person of the plaintiff and his role as captain in the distant television series “The dream ship” enthält, Are the application of the “Vacation lots” the defendant functionally subordinate. The defendant has, As the Court of Appeal correctly determined, not just created any reason to map the plaintiff, but yours “holiday lottery”, in which a cruise can be won as the main prize, At least with the photo at issue in context, at least illustrated in context. In addition, it has neither a testimonial advertising nor as a measure that is directly sales-promoting on the title page, but inside the newspaper on page 13 used. At the same time, the court of appeal rightly has a certain image transfer from the Klä-Ger on the “holiday lottery” The defendant accepted. The defendant has upgraded her winery, that you have a mental connection between the main prize of a cruise and the television series “The dream ship” made. The revision is without success, The photo shows the plaintiff and the people depicted with him only in their serial roles and let them step down as independent people. That this is not the case, zeigt – wie ausgeführt – Already the naming of the name of the plaintiff in the image signature (vgl. already Rn. 20).
(5) In the overall assessment, the applicant's interests then predominate. Even taking into account the symbolism in the photo at issue in the photo at issue, its use by the defendant intervenes in the plaintiff's right of personality without a remarkable contribution to a debate on the personality without a remarkable contribution to a debate.
3. The risk of repetition required for the injunctive relief is also available. An illegal impairment in the past usually establishes the actual presumption of the risk of repetition (vgl. BGH, Judgment of 17. December 2019 – VI ZR 249/18, Wheat 2020, 664
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RN. 21). Umstände, that cancel this risk of repetition, did not determine the appeal court in the event of a dispute. The revision does not complain either, that the court of appeals would not have been incorrectly incorrectly made.
II. Without the legal error, the appellate court also has a claim for injunctive relief in the defendant's article on the basis of the name of the plaintiff 1004 Abs. 1 Sentence 2 analog, § 823 Abs. 1 BGB for violating the general right of personality in the expression of the law in its own name.
1. The Court of Appeal has accepted this, In the case of the offered, nothing more than it was already designed for portrait protection. The protection of picture- and word reports are not necessarily in parallel. In the specific case, however, there is no reason, to evaluate a name of the Klä-Ger without an inadmissible portrait publication in connection with the Arti-Kel.
2. This assessment, Against which the revision does not provide independent complaints, withstands legal review.
A) However, the admissibility of a word report is not based on the same standards as that of image reporting, because not the principle of the regular exception principle of §§ 22, 23 KUG -shaped warranty of the right in your own image, but the scope of protection of personality rights from the outset can be determined by a weighing of goods with the interests of the media worthy of protection. (vgl. BGH, Judgment of 26. October 2010 – VI ZR 230/08, BGHZ 187, 200 RN. 8 to 12; Judgment of 29. More 2018 – VI ZR 56/17, Wheat 2018, 964 RN. 28 to 30; BGH, Zumrd 2020, 642 RN. 37 to 39, further references). However, the use of a name for commercial purposes in the assets intervenes components of the right of personality
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(vgl. BGH, Judgment of 1. December 1999 – I ZR 49/97, BGHZ 143, 214, 219 F. and 230 [juris Rn. 51 and 75] – Marlene Dietrich, mwN; Judgment of 5. June 2008 – I ZR 96/07, Wheat 2008, 1124 RN. 12 = WRP 2008, 1524 – Crumpled cigaret tens box; Judgment of 5. June 2008 – I ZR 223/05, WRP 2008, 1567 RN. 13). In this respect, too, the legality of the intervention is based on a comprehensive goods- and assessment of interests, taking into account the legal positions on both sides (BGH, Wheat 2008, 1124 RN. 15 – Przeknitterte Ziga-Rettenschachtel; WRP 2008, 1567 RN. 14).
B) Thereafter, the defendant's intervention in the plaintiff's general personal rights in the expression of the right in his own name was illegal. The defendant has the plaintiff's name in the article at issue 18. February 2018 used for mostly commercial purposes. Because it is only mentioned in the caption, the names are unrenn-bar with the use of portraits. The balancing of interests must therefore lead to the same result. To the question, Whether the plaintiff's name isolated – That means without the photo in dispute – In the defendant's article should have been used, It does not matter in the present case.
III. The appellate court rightly also has the plaintiff's claim to reimburse the costs of his pre -judicial warning in the amount of 593,19 € plus interest affirmed. In this respect, the revision does not raise any self-independent complaints.
IV. The revision is successful, insofar as they against the information entitled to the plaintiff about the pressure edition of the “Picture on sunday” from 18. February 2018 turns. The court of appeal erroneously overlooked right, that the granting of the coveted information on the assertion of the area right to pay a fictitious license fee is not researched.
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1. According to the principle of faith (§ 242 BGB) can be given a claim to the future, If there is a violation, the information on legal prosecution is required and can easily be granted by the violator (vgl. BGH, Judgment of 21. April 2016 – I ZR 198/13, BGHZ 210, 77 RN. 103 – Publisher; Judgment of 18. June 2019 – VI ZR 80/18, BGHZ 222, 196 RN. 58, further references).
2. Das Berufungsgericht hat ausgeführt, As a first prerequisite for a claim for information, the plaintiff's right to pay a fictitious license fee there is. The certain atypic of the advertising use in dispute here does not conflict with this. The flat-rate disputes of a plaintiff's advertising valuation by the defendant is un-sub-understated. The other requirements of a claim to information also provide. That the plaintiff places on the information on the printing edition, sei nicht zu beanstanden, Since it can be assumed when it is economically considered, that a publisher will print so many magazines at its core, As he also remembered; The number also provides information about the intended distribution degree. As far as the defendant mine, that the plaintiff can get sufficient information on the average requirements in the individual quarters on the IVW website and without registration for quantity of his claim, Don't wear that. In any case, it was not closed, that the specific edition had a higher distribution degree than the quarterly average. Since this in turn could have an impact on a fictitious license fee, So that this additional information is also due to. This is also reasonable and possible for the defendant as a violator.
3. This assessment does not withstand the legal review in a decision-making point. The coveted information is not necessary for the assertion of claims to pay a fictitious license fee.
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A) The Court of Appeal rightly affirmed a claim for payment by the Klä-Gers. The unauthorized commercial use of an image of an image is an interference with the property law allocation content of the law in your own image and basically justifies – In addition to the enthusiastic claim for damages – A claim from an intervention conduct to pay the usual license fee (vgl. BGH, Wheat 2013, 196 RN. 42 – Playboy on Sunday, mwN). This also applies to the unauthorized commercial use of a foreign name (vgl. BGH, Wheat 2008, 1124 RN. 11 – Crumpled cigarette box).
B) However, the coveted information is not necessary for the plaintiff to further pursue his payment claim.
aa) Not unlike in the case of a fictitious license fee to be paid as compensation is also the amount of the crime court in accordance with § 287 Abs. 2 ZPO appreciated (vgl. BVerfG, GRURRR 2009, 375 RN. 22). To ask is, What reasonable contractual partners would have agreed as a remuneration for the usage handings made by the injured person. As part of the determination of the objective value of the usage authorization, which is decisive for the assessment of the license fee, the entire relevant circumstances of the individual case must be considered and comprehensively appreciated (For the claim for damages cf.. BGH, Judgment of 13. September 2018 – I ZR 187/17, Wheat 2019, 292 RN. 18 = WRP 2019, 209 – Sports car photo). The type and scope of the estimates to be brought in by the shot must only be placed in small requirements. The crime court has a large play area within the limits of a free discretion (vgl. BGH, Wheat 2019, 292 RN. 24 – Sports car photo).
bb) After that, the plaintiff does not need the information he coveted for the gel.. In the case of known print media such as the “Picture on sunday” can basically from a comparatively
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high distribution degrees can be assumed (vgl. BGHZ 222, 196 RN. 59). In addition to it, the plaintiff can – As the Court of Appeal found without legal errors – On the information community on the website of the information community to determine the distribution of advertising media (Ivw) available average edition of the “Picture on sunday” im I. quarter 2018 support. That the distribution degree of the disputed edition of the 18. February 2018 would be significantly deviated from the average value, is neither presented nor evident.
cc) Therefore can remain open, whether the plaintiff does not need the information he coveted because of this, Because he does not have to quantify his payment application, but can put his assessment in the discretion of the crime court (So BGHz 222, 196 RN. 59 For the right to compensation for money in the event of personal law violations outside of the property allocation content). It corresponds to a solid case law, that in cases, in which the amount of damage from a judicial estimate according to § 287 Abs. 2 ZPO depends, An unspecified payment application according to § 253 Abs. 2 No.. 2 ZPO can be permitted (vgl. BGH, Decision of 7. April 2009 – KZR 42/08, GRUR-RR 2009, 319 mwN). However, it appears questionable, whether the injured can be denied with this gel, The one for a – also permissible – To request the information required by the legal injury.
C. A template to the Court of Justice of the European Union in Art. 267 Abs. 3 AEUV ist nicht veranlasst (vgl. ECJ, Judgment of 6. October 1982 – 283/81, Slg. 1982, 3415 RN. 21 = NJW 1983, 1257 – Cilfit u.a.; Judgment of 1. October 2015 – C-452/14, Gror you. 2015, 1152 RN. 43 – DOC Generici, mwN). In the event of a dispute, there is no relevant question of interpreting Union law, which cannot be answered by the case law of the Court of Justice or cannot be answered without two rocks.
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D. After that, the contested judgment must be partially lifted and the lawsuit is to be dismissed, Insofar as the defendant has been sentenced to provide information. In this respect, the Senate can decide itself, Since the matter is ripe for the final decision (§ 563 Abs. 3 ZPO). Incidentally, the revision must be rejected. The cost decision is based on § 97 Abs. 1, § 92 Abs. 2 No.. 1 ZPO.