References without law book default to BGB.

Case - Drunk Portrait

Facts

Mat (M) supports the soccer club TSV 1860 München. After the club’s relegation in 2017, he is very upset. He sits down in front of the A-Arena and drinks 12 bottles of beer.

Robert (R) watches the scene, takes a photo, and posts it immediately on his blog.

After getting sober, M notices several e-mails on his computer, informing him about his “portrait” on the blog from some friends. M gets upset (again). He argues that R owes him compensation for the infringement of his rights.

Is he correct?

Solution

Slides Solution

• Issue: Does R owe compensation to M according to § 823 I BGB?
• Rule: § 823 I BGB (Liability in damages).
• Application:
  • (1) Harm caused to life, body, health, freedom, property, or another right of another person:
    • Right infringed? Life, body, health, freedom, property? → (-). Another right? → (+), the general right of privacy in the form of the right to one’s own picture. Guaranteed according to Art. 2 I, 1 I GG (German Basic Law/Constitution). Other rights may also be applicable (§§ 22, 23, 24, 33 KunstUrhG).
    • Harm caused? It is not allowed to take photos of a third person and publish them without permission. There can be exceptions (portraits of contemporary history, people as accessories to landscape, public interest events) → (-). In particular, this is not permitted if the person is shown in a vulnerable or shameful situation. → (+).
  • (2) Harm caused by an action: → (+), R took the photo and published it on his blog.
  • (3) Causality between action and the harm: → (+), if there had not been a photo taken and a posting on the internet, there would not have been a harm to M’s general right of privacy.
  • (4) Action unlawful (no justification such as self-defense): → (+), there is no justification for R to take a photo of M and publish it.
  • (5) Fault element (intention/negligence): → (+), R acted intentionally (§ 276 BGB).
  • (6) Financial loss for M: → (P), there is no direct financial loss for M, but the claim for non-pecuniary damages results directly from the constitution; therefore, the courts must determine the “loss” (monetary compensation for pain and suffering).
• Conclusion: M can claim compensation from R in line with § 823 I BGB. The exact amount will be determined by the courts. (Note: § 823 II BGB in conjunction with § 201a I No. 2, II StGB might apply too.)

Write-Up

Issue: Can M demand compensation for non-pecuniary damages from R under § 823 I BGB?

Rule: Under § 823 I BGB, anyone who unlawfully and intentionally or negligently injures the “other right” of another person is liable to pay damages.

Application:
1. Protected Right: The general right of personality (Allgemeines Persönlichkeitsrecht), anchored in Art. 2 I in conjunction with Art. 1 I GG, is recognized as an “other right” under § 823 I BGB. This includes the right to one’s own image (Recht am eigenen Bild, § 22 KunstUrhG). M’s right to control the publication of his image is protected.

2. Action and Causality: R actively took a photo of M in a highly vulnerable and embarrassing state (heavily intoxicated) and published it on his blog. This action was the direct and adequate cause of the infringement of M’s right.

3. Unlawfulness: For the general right of personality, unlawfulness is not presumed but must be determined through a balancing of interests (the publisher’s right to freedom of expression/press vs. the depicted person’s right to privacy). There is generally no public interest in seeing a randomly intoxicated football fan in a shameful state, and the exceptions for contemporary historical events do not apply here. Therefore, the publication without M’s consent was unlawful.

4. Fault: R acted intentionally (§ 276 BGB), knowing he was taking and publishing a picture of an identifiable person without consent.

5. Damage: M did not suffer a direct financial loss. However, in cases of severe infringement of the general right of personality, the victim can claim monetary compensation for non-pecuniary damage (pain and suffering/immaterial damages), based directly on the protection mandate of the Constitution. The exact amount of compensation is left to the discretion of the courts.

Conclusion: M has a valid claim for monetary compensation against R under § 823 I BGB due to the severe violation of his general right of personality.