In its decision of 28 November 2020 (14 U 620/22), the Higher Regional Court of Karlsruhe ordered Oliver Pocher to cease and desist from publishing and distributing film sequences showing Boris Becker due to a violation of the right to one’s own likeness in accordance with Section 22 KUG
The subject of the approx. 16-minute report, which was first broadcast on 29 October 2020, was the fictitious awarding of a fictitious fashion prize to Becker for his fashion line in a fictitious magazine. For this purpose, video recordings were obtained by deception as part of an “award ceremony”, which Becker believes violates his right to privacy. However, the actual purpose was to induce Becker, without his knowledge, to accept a sum of money hidden in the award presented and collected by Pocher in his programme “Pocher – gefährlich ehrlich!” under the motto “Make Boris rich again”
The Offenburg Regional Court had dismissed the claim
The Karlsruhe Higher Regional Court (German: OLG) has now ruled that the consent given by Becker, due to the earmarking “acceptance of a real fashion prize”, does not apply with regard to Becker’s satirical, or at least humorous, presentation
However, the OLG also denied the existence of a historical event. This is a legal exception in which the person depicted does not have to give their consent because there is a public interest in the depiction of their person in this historical context
Whether a portrait of a historical event can be assumed in an individual case and whether the public interest in information outweighs the general right of personality of the person depicted must be determined by weighing up the opposing interests protected by fundamental rights
Although at the time of the broadcast of the report the public interest in information about Becker was considered by the court to be very high due to his insolvency proceedings and his public profile and Becker was also seeking publicity with his fashion line, the OLG assumed that Becker’s right of personality prevailed
The OLG stated in this respect
“However, this does not mean that the plaintiff had to accept every form of use of his likeness, regardless of how it was obtained; the assumption that the particular celebrity of a person and a public interest in their life situation alone justify the publication of any likenesses would not be compatible with the protection of the general right of personality of the person concerned, according to the above.”
In the opinion of the OLG, the fact that the programme was a satirical examination of Becker, whereby the boundary to defamatory criticism was even exceeded, was irrelevant. According to the court, there was no reason for a fundamental privileging of satire over other forms of reporting or entertainment with regard to the assessment to be made for Section 23 KUG
Becker had been turned into an object. The deception and exaggeration was an aspect that would regularly lead to a predominance of personal rights. In addition, the informational value of the historical event was rather low
The OLG has not authorised an appeal to the Federal Court of Justice (Bundesgerichtshof – BGH). However, an appeal against the non-admission of the appeal could be lodged with the BGH within one month
Classification
Pocher’s legal representation is now arguing that, according to these principles, all satirical programmes must disappear from the channels and that the core area of satire and freedom of opinion is affected. This classification is, of course, a party-coloured exaggeration. In the correct view of the OLG, the form of presentation, here e.g. satire, can at best be a criterion for categorising the informational value of an image of the programme, but not a parameter that overrides everything, according to the idea that “satire can do anything”. The permissible appropriation of celebrities themselves for advertising, but of course also and especially in the context of satirical formats, has often been established (see our article “Free advertising with athletes, celebrities and politicians“)
Satire is allowed to do a lot, but not everything. Critical and sharp criticism of a public figure and their actions is permissible if it (at least also) serves the public interest in information. In the past, mocking and exposing depictions that deceive the public figure with little informational value could not successfully hide under the cloak of satire. The decision of the Higher Regional Court of Karlsruhe has not changed this.