In the case of Bild GmbH v Germany  ECHR 851 the Fourth Section of the European Court of Human Rights found that an order that a publisher should cease publication of CCTV footage of an arrest without pixelating the face of one of the officers involved was a violation of Article 10 as it could lead to an unacceptable ban on future publication on matters of public interest.
Bild GmbH (“Bild”), is a limited liability company which owns and operates the news website bild.de and publishes the large-circulation newspapers Bild and Bild am Sonntag.
On 10 July 2013 an article was published on bild.de about the police having been called to a nightclub in Bremen in June of that year owing to allegations of aggressive behaviour by D., a customer, towards staff. It was entitled “Here the police beat up [D.]” .
The article was accompanied by a video, which showed several police officers forcing D. to the ground, with one of the officers (not the claimant in the domestic courts) kicking him and hitting him with a baton while he was on the floor. The video featured a voice-over which included the following
“Shocking footage from a security camera. Four police officers force D. to the ground at the Bremen nightclub Gleis 9. The man is defenceless. Yet for one officer that clearly isn’t enough. He kicks the family man several times and hits him with his baton, again and again. This CCTV footage shows clearly how brutally the Bremen police deal with a supposed troublemaker. D. had allegedly been causing trouble and swearing. …”
The website followed this up with a second article, “How the night of the beating unfolded”, which had further footage, showing D.’s aggressive actions before the officers’ arrival.
The face of one of the officers, P., was clearly visible in the footage; there was no suggestion that he had used excessive force. On 18 July 2013 he asked that Bild take down the video until it had blurred his face. Following their refusal, he brought a claim against Bild in the Oldenburg Regional Court. That court ordered that the video be taken down until Officer P.’s face was blurred. It emphasised the importance of discussion around the State’s monopoly on the use of force, but set that against P.’s personality rights in finding for him. It also noted that the footage of D.’s actions had not been shown with the first article. The Oldenburg Court of Appeal upheld that decision, stating that publication of the unedited CCTV footage without Officer P.’s consent would violate his rights.
In August 2017 the Federal Constitutional Court refused to entertain a constitutional complaint by the applicant company. Bild lodged a complaint under Article 10 on 16 February 2018.
The Court noted that it had to balance the right to freedom of expression with the individual’s right to respect for private life, in accordance with the well known Axel Springer criteria. With respect to audiovisual media, account had to be taken of the fact that these have a more immediate and powerful effect than the print media . The publication of a photograph falls within the scope of private life
“The right of each person to the protection of his or her image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image by another person” 
Considering the application of these principles
(i) Contribution to the publications to a debate of public interest: The Court agreed with the Regional Court that the use of force by State agents was inherently a matter of public interest and that this primarily concerned the actions of the police as an institution and not P as an individual.
(ii) How well known was the person concerned and his prior conduct: P was not a public figure and had not, through his acts or position, entered the public arena . The Court went on to note that while it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do in some circumstances they are subject to wider limits of acceptable criticism than private individuals – for example, in the case of alleged misconduct . In the present case, the CCTV showed P in his official capacity as a police officer during an intervention which involved the use of force but he had not been involved in any kind of misconduct. The Court noted that
“there is no general rule under Article 8 of the Convention requiring that police officers should generally not be recognisable in press publications, there may be circumstances in which the interest of the individual officer in the protection of his or her private life prevails. This would be the case, for example, if publication of the image of a recognisable officer, irrespective of any misconduct, is likely to lead to specific adverse consequences in his or her private or family life” .
(iii) Method of obtaining the information and its veracity: The CCTV was obtained from the owner of the nightclub. Its authenticity had not been questioned and the case did not concern the use of hidden cameras.
(iv) Content and form of the publication: The domestic courts attached particular significance to the editorial presentation of the CCTV: emphasising that the commentary portrayed P as a violent thug in the eyes of the public. The Court began by noting that
“the scope of coverage and the technique of reporting a given subject is a matter of journalistic freedom. It is neither for the Court nor for the domestic courts to substitute their own views for those of the press in this area. This freedom, however, is not devoid of responsibilities. The choices that journalists make in this regard must be based on their profession’s ethical rules and codes of conduct” 
However, the Court noted that the injunction related not just to previous publications but also to any future publication of the unpixelated CCTV footage . As a result,
“Taking into account the public interest in the coverage of the use of force by State agents .. and the potentially dissuasive effect that the obligation to blur the images of police officers involved in an operation would have on the exercise of the applicant company’s right to freedom of expression … there is a need to balance the competing rights involved … which in the present case the domestic courts failed to do in respect of any future unedited CCTV footage“. 
(v) Consequences of publication: The Regional Court had failed to examine to what extent any future publication of the unedited CCTV footage would lead to negative consequences.
(vi) Severity of the restriction: Although not particularly severe, it could not be considered as justified.
In summary, the domestic courts’ balancing exercise in respect of the second and future publication was insufficient in relation to two points: the Regional Court only considered the editorial presentation of the first publication and the Court of Appeal did not engage in any balancing exercise in respect of future publication. Without evaluating to what extent the publication of the image was capable of contributing to a public debate, it stated in a general reasoning that even an unpixelated coverage reflecting the actual circumstances of the police intervention without depicting the police officer in a negative way could not be considered to be portraying an aspect of contemporary society and thus would be unlawful. This could lead to the ban – unacceptable in such general terms irrespective of the public interest in the use of force by the police – of any future publication, without the consent of the persons concerned, of unedited images of police officers performing their duties.
On these two points, the national courts’ decisions failed to conduct the necessary balancing exercise to justify the “necessity”, under Article 10 of the Convention, of the restriction on the applicant company’s freedom of expression with respect to the second and any future publication of the unedited CCTV footage. As a result, the injunction had not been necessary in a democratic society and had violated Article 10 of the Convention.
The reasoning in this judgment is, in parts, opaque and confusing. It is, nevertheless, tolerably clear that the Court was engaging in a fact sensitive, balancing of rights. It did accept that, in some circumstances, it will be appropriate to prohibit the publication of unpixelated video footage of police officers, carrying out out their duties but, unsurprisingly, found a blanket ban on future publication of such images was a violation of a news publisher’s right to freedom of expression.
Although it is not said in terms, the Court appears to have accepted that the injunction concerning the original publication was rightly granted. This publication had failed to show the full context of the incident and included commentary suggesting all the officers, including the claimant in the domestic courts (P); were guilty of misconduct. In fact, no such allegation of misconduct was made against this officer. The Court implicitly accepted that this was a justified interference with the Article 10 rights of the publisher. It took into account the unbalanced nature of this publication.
The position was potentially different in relation to the second article, which provided proper context and did not suggest all the officers were guilty of misconduct. The Court did not make an express finding on this – although it seems to have accepted that, if this article had led to adverse consequences for P then an order requiring pixelation of continued publication would have been appropriate.
However, the Court clearly found that the domestic court’s injunction concerned future publications was a violation of Article 10. The domestic courts had not carried out any proper balancing of rights in respect of this and had failed to examine the extent to which such publication would lead to negative consequences for P. A general ban on the public of future publication of unedited images of police officers going about their duties was unnecessary, bearing in mind the public interest in covering the use of force by the police.
Despite its lack of clarity the judgment is a useful reminder that even when public officials are exercising public functions their privacy rights are engaged but that the balance of rights must be carefully scrutinised in every case.
Hugh Tomlinson KC is a member of the Matrix media and information practice group and an editor of Inforrm.