The German Federal Court of Justice has ruled that the publication of an unblurred portrait photo of a suspect in an ongoing investigation may be permissible under certain circumstances in the context of reporting on suspected crimes.
In the present case, freedom of the press outweighs the personal rights of the person concerned, as the matter is of the utmost public interest and the person concerned has, in part, placed himself in the public spotlight.
The case
In early 2020, a former manager of a Wirecard subsidiary was a key suspect in a criminal investigation. A news magazine illustrated a background report on the Wirecard scandal with a context-neutral portrait photo of the manager concerned (taken in 2006) without his consent. The person concerned wanted to prohibit the use of his image, citing his personal rights and his right to his own image.
The decision in brief
Without success! The German Federal Court of Justice considered the publication of the unpixellated image to be permissible in this specific case.
In principle, photos may only be distributed with the consent of the person depicted. However, there is an important exception when it comes to so-called images of contemporary history, i.e., topics of considerable public interest. In such cases, the conflicting interests must be weighed, i.e., between the general personal rights of the person concerned and the freedom of the press and freedom of expression of the media.
In the present case, the public interest in the Wirecard scandal was considered to be very high. This scandal involved billions in losses, auditing and supervisory issues, and even led to a Bundestag investigative committee.
Another decisive factor was that the person concerned had, in part, prominently placed himself in the public eye (e.g., by testifying as a witness before the investigative committee) and that comparable image material had already been made publicly available. He should have expected a reaction from the media (so-called self-disclosure).
Admittedly, the opposing presumption of innocence must also be given great weight, as at the time of the reporting, the case was under investigation and the person concerned was merely a suspect. However, due to the high level of public interest and the self-disclosure by the person concerned, his general right of personality nevertheless takes a back seat to freedom of the press in this case.
Practical note:
