FOURTH SECTION
CASE OF BILD GMBH & CO. KG v. GERMANY
(Application no. 9602/18)
 
JUDGMENT
Art 10 • Freedom of expression • Injunction ordering news website company to cease publication of CCTV footage of a police arrest without blurring one of the faces of the police officers • Injunction related to two publications but also to any future publication of unedited footage regardless of accompanying coverage • Civil servants, including police officers, in absence of allegations of prior misconduct, not deprived of a legitimate interest in protecting their private life against, inter alia, falsely being portrayed as abusing their office • Albeit no general rule under Art 8 that police officers should generally not be recognisable in press publications, circumstances may exist in which the interest in the protection of an individual officer’s private life prevailed • Domestic courts’ balancing of competing Art 8 and 10 rights sufficient in respect of the first publication but not the second and any future publication • Particular significance attached to editorial presentation of the first publication • Failure to evaluate to what extent the image’s publication could contribute to a public debate • General reasoning that any unpixellated coverage would be unlawful even if reflecting the police intervention’s actual circumstances without depicting the police officer negatively, could lead to an unacceptable ban of any non-consensual future publication, of unedited images of police officers performing duties irrespective of public interest in use of force by police • Interference not “necessary in a democratic society”
 
STRASBOURG
31 October 2023
FINAL
 
31/01/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bild GmbH & Co. KG v. Germany,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Faris Vehabović,
 Branko Lubarda,
 Armen Harutyunyan,
 Anja Seibert-Fohr,
 Anne Louise Bormann, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the application (no. 9602/18) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Bild GmbH & Co. KG, a limited liability company registered in Germany (“the applicant company”), on 16 February 2018;
the decision to give notice to the German Government (“the Government”) of the complaint under Article 10 of the Convention;
the observations submitted by the Government and the observations in reply submitted by the applicant company;
the comments submitted by the Helsinki Foundation for Human Rights, which was granted leave to intervene by the Vice-President of the Section;
Having deliberated in private on 10 October 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns a court ruling ordering the applicant company to cease publication of CCTV footage of a police arrest without the face of one of the police officers involved being blurred. The applicant company complained under Article 10 of the Convention. THE FACTS
2. The applicant company is a limited liability company with its registered office in Berlin. It was represented by Mr S. Aroukatos, a lawyer practising in Dresden. 3. The Government were represented by one of their Agents, Mr H.J. Behrens, of the Federal Ministry of Justice. 4. The facts of the case may be summarised as follows. 5. The applicant company owns and operates the news website bild.de. On 10 July 2013 an article was published on the website with the headline “Here the police beat up D. (28)”. The article referred to a police intervention at a nightclub in Bremen on 23 June 2013. The police had been called because a customer, D., had been behaving aggressively towards a staff member. 6. Together with the article, the applicant company published CCTV footage it had obtained from the club owner. The video showed several police officers standing around D. and bringing him down to the ground by force. One of the officers could be seen hitting D. with a police baton and kicking him while he was already immobilised 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. ...”
7. On 12 July 2013 the applicant company published a second article with the headline “How the night of the beating unfolded (Protokoll der Prügel‑Nacht)”. Together with the article the applicant company published additional CCTV footage, depicting D.’s actions before the arrival of the police. The video shows D. throwing flyers at a staff member and making an aggressive gesture. 8. Subsequently, the story was picked up by several national newspapers. 9. P. was one of the police officers involved in D.’s arrest. The CCTV footage showed him assisting his fellow officers in bringing D. down to the ground. His face was clearly visible for several seconds. However, the video gave no indication that P. had used excessive force during the arrest. 10. On 18 July 2013 P.’s lawyer requested that the applicant company cease publication of the CCTV footage without his client’s face being blurred. When the applicant company refused, P. lodged a claim with the Oldenburg Regional Court. In addition to the injunction to cease publication of the unpixelated surveillance video, P. requested that the court find that the applicant company had to reimburse him for all damage he had sustained and might sustain in the future as a result of the publications. At the request of the court, he expanded on his submission, stating that on several occasions he had been confronted with critical comments about the documented incident by members of the public and by his children. A hearing was held on 12 March 2014. 11. On 14 May 2014 the Regional Court ordered the applicant company to cease publication of the CCTV footage without P.’s face being blurred, while dismissing the remainder of P.’s claim. Referring to Articles 823 and 1004 of the Civil Code and sections 22(1) and 23 of the Copyright (Arts Domain) Act (see paragraphs 15‑19 below), the court found, at the outset, that the CCTV footage showed P. in his official capacity as a police officer using force and thus portrayed an aspect of contemporary society (Bildnis aus dem Bereich der Zeitgeschichte). It further pointed out that the authenticity of the footage had never been questioned. The Regional Court emphasised that the publications concerned the State’s monopoly on the use of force, a subject of fundamental importance to public discourse. However, in balancing the competing rights, the court considered that the publications violated P.’s personality rights. Referring to the Court’s case-law, it observed that P. had not sought public attention and had been unknown to the public prior to the police intervention. While he had been aware of the surveillance cameras, the recording had been made without his consent during the performance of his professional duties. The court further referred to P.’s statement regarding the consequences of the publications (see paragraph 10 above). Furthermore, it noted that the public interest primarily concerned the actions of the police as an institution and not P. as an individual. Regarding the editorial presentation, the court found that the voice‑over (see paragraph 6 above) further aggravated the infringement of P.’s rights and had the effect of depicting him as a violent thug. In addition, the court placed particular emphasis on the fact that the first video published by the applicant company had only shown the arrest itself, while omitting D.’s prior actions which had led to the police intervention. The court considered that the applicant company had deliberately omitted this part of the CCTV footage, since it did not fit with its preferred interpretation of the event. 12. The applicant company appealed against the Regional Court’s decision. On 27 May 2015 the Oldenburg Court of Appeal stated that it intended to dismiss the appeal without a hearing on the grounds that it lacked any prospect of success. It confirmed the Regional Court’s finding that the footage portrayed an aspect of contemporary society, but similarly found that the use of the unpixelated image of P. had violated his personality rights. In that connection, the court found that the presumption of innocence demanded a cautious or at the very least balanced coverage of the events in question. It further confirmed the first‑instance court’s argument that the applicant company had initially released footage that had solely depicted the police intervention and not D.’s prior actions and emphasised that the CCTV footage had to be examined within the context of the accompanying commentary. 13. After affording the parties an opportunity to provide their comments, on 21 July 2015 the Court of Appeal dismissed the applicant company’s appeal. It further expounded its position that publication of the unedited CCTV footage without P.’s consent would violate his rights, stating:
“In other words, any unpixelated depiction was unlawful; the accompanying textual coverage might change the context, but was not decisive in the present case. If future reporting were to portray the claimant in a negative light, suggesting criminal responsibility, pixelation would be necessary for the reasons put forward by the Regional Court. Similarly, if the coverage were to be positive from the claimant’s perspective – that is, reflecting the actual circumstances – pixelation would also be necessary, since the footage could no longer be considered to be portraying an aspect of contemporary society but only a routine and everyday police intervention.”
14. By a decision of 3 August 2017, the Federal Constitutional Court declined to accept a constitutional complaint by the applicant company for adjudication, without providing reasons. RELEVANT LEGAL FRAMEWORK AND PRACTICE
The Civil Code
15. Article 823 § 1 of the Civil Code (Bürgerliches Gesetzbuch) provides that anyone who, acting intentionally or negligently, unlawfully violates the life, physical integrity, health, liberty, property or similar rights of others is required to afford redress for any damage arising in consequence. 16. Under Article 1004 of the Civil Code, where another person’s property is damaged otherwise than by removal or illegal retention, the owner may require the perpetrator to cease the interference. If there are reasonable fears that further damage will be inflicted, the owner may seek an injunction. 17. A person’s personality rights enjoy the protection of Article 2 § 1 and Article 1 § 1 of the Basic Law (Grundgesetz), and are therefore recognised as “another similar right” within the meaning of Article 823 § 1 of the Civil Code (see Federal Court of Justice, no. I ZR 211/53, judgment of 25 May 1954). Furthermore, the scope of Article 1004 of the Civil Code has been extended by the Federal Court of Justice and the provision is applicable to violations of other rights protected by Article 823 of the Civil Code. Thus, it also protects a person’s right to reputation and to protection of his personality (see, for example, Federal Court of Justice, no. VI ZR 340/14, judgment of 28 July 2015). The Copyright (Arts Domain) Act
18. Section 22(1) of the Copyright (Arts Domain) Act (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie) provides that images can only be disseminated with the express consent of the person concerned. Section 23(1)(1) of the Act provides for exceptions to that rule, where the images portray an aspect of contemporary society, on condition that publication does not interfere with a legitimate interest of the person concerned (section 23(2)). 19. According to the established case-law of the Federal Court of Justice, images portraying an aspect of contemporary society are not limited to events of historical‑political importance, but rather encompass all sorts of current affairs and thus all questions of general public interest (see, for example, Federal Court of Justice, no. VI ZR 67/08, judgment of 1 July 2008). THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
20. The applicant company complained that the injunction to cease publication of the CCTV footage without P.’s face being pixelated had violated its freedom of expression under Article 10 of the Convention, the relevant parts of which read:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ... or for maintaining the authority and impartiality of the judiciary.”
Admissibility
21. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant company
22. The applicant company rejected the domestic courts’ argument that showing P.’s likeness had not been necessary in order to inform the public. It argued that the way in which the CCTV footage had been published concerned an editorial choice which fell to itself. It further criticised the Court of Appeal’s position (see paragraph 13 above) that critical coverage of the police intervention required pixelating P.’s face owing to the negative impact it might have on his reputation, whereas positive coverage meant that the video‑footage only depicted an everyday occurrence and could only be published with P.’s consent. In the applicant company’s view, this meant that any publication showing photographs of police officers in the performance of their duties risked being subject to a ban. The courts had thus in a general manner given precedence to the police officers’ personality rights over the right to freedom of expression of the press and the public’s right to be informed. Lastly, the applicant company stressed that while P. had been identifiable on the basis of the CCTV footage, his identity had never been divulged to the public. (b)   The Government
23. The Government argued that disclosing P.’s identity had not been necessary in order to attain the relevant journalistic goals. Using the unpixelated footage had not lent additional credibility to the applicant company’s coverage of the police intervention or provided any relevant additional information to the public. Furthermore, the domestic courts had correctly pointed out that the first video the applicant company had published had provided the public with an incomplete version of events at the nightclub. The Government further confirmed the Court of Appeal’s legal standpoint that, owing to the nature of the video material, publication of the CCTV footage without P.’s face being pixelated would violate his personality rights regardless of the accompanying coverage. It found that P. could not be expected to constantly monitor whether the applicant company had republished the video material and then initiate a new set of court proceedings if the coverage was slightly different. Lastly, with regard to the severity of the sanction, the Government emphasised that the domestic courts’ decisions had not resulted in a general prohibition on publishing the CCTV footage, but had only ordered that publication without P.’s face being blurred should cease. The third-party intervener’s submissions
24. The Helsinki Foundation for Human Rights argued that law-enforcement officers who were involved in alleged malpractice while exercising their official functions in public places should be regarded as “persons acting in a public context” or “newsworthy figures” within the meaning of the Court’s case‑law. Since their particular powers were inherently linked to a risk of abuse, the filming of law‑enforcement officers acting in their official capacity and the publication of the footage of the alleged malpractice, with images of recognisable officers involved in such actions, constituted a vital element of the system of adequate safeguards against arbitrariness and abuse of force.

Article of the Convention at issue: Article 10
Outcome: violation