The recent decision of Weller & Ors v Associated Newspapers Ltd  EWHC 1163 (QB)has strengthened the rights of children against the mass media in English law. This decision is an important step in developing the rights for children against paparazzi under Article 8 ECHR.
From the point of view of other European countries, this decision has moved English law moved towards a common position where personality rights are fully recognized. The result would have been similar under the German case law. After focusing on English law, I will explain the German law of the protection of personality rights, especially in respect to the image rights of children.
The case of Paul Weller and English law
Paul Weller, a famous singer, was successful in claiming for his children against Associated Newspapers Limited. In October 2012 the Mail Online published photographs of the family in public places in Los Angeles. The pictures showed the fully visible faces of the children.
The claim in Weller was based on misuse of private information and the Data Protection Act 1998. In his balancing exercise the court referred to ECHR’s ruling in von Hannover v Germany (No. 2) applying the different criteria identified in this decision [109-111]. Finally, the children’s interest under Article 8 ECHR overbalanced the freedom of press under Article 10 ECHR. The court argued that
“publishing photographs of the children’s faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights, even though such a publication would have been lawful in California”.
Further the court concluded that there was no relevant debate of public interest to which the publication of the photographs contributed. ().
Although an image right is not explicitly recognized in English law, as in Weller claimants have often sought to control the use of images in the media. This is because in many celebrity-cases the breach of privacy implies the publication of the person’s image. Publishing an image is often, though not always, a violation of a person’s private life. A photograph can provide more information than words. Ten years ago Baroness Hale recognized the impact of pictures in Campbell v MGN Ltd ( 2 AC 457)
“[the pictures] showed the place where the meeting was taking place, which will have been entirely recognisable to anyone who knew the locality. A picture is ‘worth a thousand words’ because it adds to the impact of what the place looked like. In context, it also added to the potential harm, by making her think that she was being followed or betrayed, and deterring her from going back to the same place again.”
Regarding the protection of children in the media the Weller decision is compliant with earlier Judgements. In Murray v Big Pictures Ltd ( Ch 481) the Court of Appeal emphasized the special need for protection of children’s images in the media: “The fact that he is a child is in our view of greater significance than the judge thought” . In AAA v Associated Newspapers Ltd ( EWCA Civ 554) the Court of Appeal considered the “child’s best interests”but made also clear that the children’s expectation of privacy and therefore their rights against the media might be affected by the behaviour of their parents.
Image rights in German law – allgemeines Persönlichkeitsrecht
In German law the image right is part of the general right of personality (allgemeines Persönlichkeitsrecht), which is protected as “another right” by section 823 of the Civil Code as well as by the constitution. The general right of personality was developed by the Federal Court of Justice (Bundesgerichtshof) in 1954 [Leserbrief-Entscheidung – BGHZ 13, 334; Krankenpapiere – BGHZ 24, 72 (1957); Herrenreiter – BGHZ 26, 349 (1957)].
The constitutional right of personality is recognized by the Federal Constitutional Court (Bundesverfassungsgericht) based on Article 2(1) in combination with Article 1(1) of the Basic Law. The right of personality protects various aspects such as personal honour (Ehrschutz), privacy (Privatsphärenschutz) and explicit the right to one’s image (Bildnisschutz). In 1999 the Federal Constitutional Court stated that the image right guarantees the right to decide whether and under what conditions others may publish one’s photograph [BVerfGE 101, 361].
While the image right is covered by the right of personality, it is also granted by another specific provision in the general law in section 22 of the Art Copyright Act (Kunsturhebergesetz). This section provides that images may only be disseminated or shown in public with the express approval of the person concerned. Though, under the exceptions of section 23(1) of the Art Copyright Act images portraying an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) may be disseminated or shown in public. However, under section 23(2) of the Art Copyright Act this right does not cover publications which interfere with a legitimate interest of the person concerned.
Insofar, this scheme of variable protection requires a fair balancing of the interests granted in Article 8 ECHR and Article 10 ECHR. The Federal Constitutional Court concluded that these specific provisions of the Art Copyright Act lend themselves to an interpretation and application which pays due respect to all the confirming basic rights and human rights involved.
In the well known 1999 von Hannover case the Federal Constitutional Court had to decide about photographs showing the princess in public places, not only alone or sitting together in a restaurant with a famous actor, but also in private situations together with her children. In respect to the pictures depicting her children the Federal Constitutional Court found that the complainant’s basic rights had been infringed. At the same time the Court underlined the special need for protecting children in their undisturbed development and their sensitivity to disturbances while growing up:
“It is foremost the parents who are responsible for the development of the personality of a child. As far as education depends on undisturbed relations with the children, the special basic rights protection of children does not only exert a reflexive effect beneficial to the father or the mother. Rather the specific care and attention for the children also falls within the protective sphere of Article 2(1) in combination with Article 1(1) of the Basic Law. The protective power of the general personality right then is reinforced through Article 6(1) and (2) of the Basic Law, which places the state under the duty to secure the living conditions of the child which are necessary for its growing up healthy and among which parental care is especially to be counted” [BVerfGE 101, 361, 385-386; see Cremer, Human Rights and the Protection of Privacy in Tort Law, 2011, p. 65].
Although the Federal Constitutional Court strenghened the rights of children and their famous parents it made clear that decisions should be made on a case-by-case basis, taking into account the specific circumstances. Referring to this ruling the lower courts protect the image rights of children.
In the latest decision in 2013 the Federal Court (Bundesgerichtshof) had to decide about a claim regarding an illustrated article showing Princess Caroline’s 11-year-old doughter Alexandra participating in a sports competition of figure skating (Eiskunstlauf-Wettbewerb) in Toulon, France. The article with three pictures of the girl was published by the magazine Freizeit Revue in Germany in 2011. The magazine gave her the name “Eisprinzessin” [Bundesgerichtshof vom 28.5.2013; BGH, Neue Juristische Wochenzeitschrift 2013, 2890].
The Federal Court rejected the claim on the ground that the complainant’s (Caroline’s daughter) basic rights had not been infringed by publishing the photographs depicting her taking part in the sports competition. First, the Court concluded that the pictures of the sports competition were portraying an aspect of contemporary society (Bildnisse aus dem Bereich der Zeitgeschichte) under section 23(1) of the Art Copyright Act. Then, in the balancing exercise between Article 8 ECHR and Article 10 ECHR required under section 23(2) of the Art Copyright Act the Court found that the illustrated article covering the participation of the girl in the competition did not violate basic rights. The Court further argued that taking exercises even in front of an audience is one component of the development of child’s personality.
Judith Janna Märten, University of Bremen (Germany)