Recently, on a sunny winter‘s day, I took a walk in the English Garden in Munich. - For those of you who are not familiar with the place, the English Garden is a lot like Central Park in New York, at least in my opinion. There is a pond, there´s a lawn, there are trees, and so on.
Anyway, when I was walking there, I became aware of the following scene: A young man, obviously very impressed with the beauty of the place, was taking photos not only of the Monopteros (the Greek temple there), the Eisbach (ice cold creek) and the snow-covered trees, but his iphone lens also captured an older guy with a considerably younger woman in his arms. This older person was very irate about the fact that his picture had been taken, and he demanded that this photo be deleted immediately.
When I overheard the verbal altercation between these two, who I assume were lawyers, I was wondering who would win if the case ended up in a German court. The following considerations came to my mind:
1. The right to one‘s own image/photograph (Recht am eigenen Bild)
Section 22 of the German Kunsturhebergesetz (KUG) states that photographs of another person may only be published with this person‘s consent. But does the taking of a photo constitute an act of publication? No, says the law. Taking a photograph is not tantamount to publishing a photograph and thus is not directly prohibited by the statute cited above.
2. Right of privacy (Allgemeines Persönlichkeitsrecht)
a) The unauthorized taking of the photograph of another person may, however, invade this person‘s right of privacy. There is a considerable amount of case law that supports this theory.
b) It is even a crime to photograph a person - without this person‘s consent - in his or her house or apartment (home), or in an area that is especially protected from the public eye, and thereby invading this person‘s privacy. The specifics are laid down in section 201a of the German Penal Code. - But, well, the English Garden is a public area and not exactly a home or apartment or an area that is specifically protected from the public eye. So, as a result, section 201a will not apply in this case.
c) So back to the right of privacy. The German Constitutional Court or Supreme Court (Bundesverfassungsgericht) recognizes a person‘s right to protect his or her image from being exploited in public. Particularly nowadays where almost every smartphone is capable of taking high quality pictures and sending them around the world in a matter of seconds, there is a growing need to protect people from this kind of abuse. Once a photo is taken without consent, it is virtually beyond control of that person to limit the use of such picture.
As a result, the rules and limits of taking a photo should be modeled after the rules that apply to the publication of a photograph, which are laid down in sections 22 and 23 KUG. So let´s take a closer look at those rules and above all their exceptions and limitations.
3. Exceptions to the right in one‘s own image/photograph
Clearly, a person cannot prohibit the publication of a photograph if this person is not recognizable in the picture. There may, however, be an issue what recognizability exactly means. For instance, it is not absolutely necessary that a person‘s face is visible, since a person may be recognized by other traits as well. Apart from that, nude pictures of a person may not be published even if that person is not recognizable in the picture.
b) Consent or implied consent
As a matter of course, a photograph may be taken if the person gives his consent. Such consent may be given explicitly or impliedly. Implied consent, however, is something more than the mere absence of resistance. The photographer who claims that someone has consented to being photographed bears the burden of proof.
c) Person merely incidental to the subject of the picture (Beiwerk)
Section 23 para 1 No 2 KUG allows the publication – and therefore obviously also the taking - of a photograph of a person if this person is merely incidental to the subject matter of the picture, in particular a landscape or other location. Now, what does it mean that a person is only „incidental“? It means that such person is neither the subject matter of the picture nor does he or she have any influence on the subject matter. In other words, if the person in the picture does not attract the viewer´s attention in any way. But be careful. There are court decisions in which a group of cyclists on the road or a group of hikers against the background of an impressive mountain panorama have not been regarded as merely incidental.
If we apply these standards to the case at hand, that is the old guy with the young lady in his arms in the English Garden, this person could with some justification argue that he is not merely incidental to the landscape and that, therefore, he must not tolerate to be visible in the picture, provided that he is recognizable in the photograph.
4. „Freedom of panorama“ (Panoramafreiheit)
There is a provision in the German Copyright Act (§ 59 UrhG) which states that works of art in public places may be photographed. This right, if literally translated, is callled freedom of panorama in German law. However, the respective provision only covers fixtures, especially buildings, and definitely not persons.
As a result, taking the photograph of someone who is strolling through the park, may in fact violate this person‘s right of privacy, or more specifically his right to his own image, provided that the person is somehow recognizable in the picture and not merely incidental to the landscape. It would not help the photographer to invoke the freedom of panorama right (§ 59 UrhG) because this only applies to taking pictures of buildings in public spaces.