Summary:

I.

The applicant was the chairman of the board of the Deutsche Telekom AG. In 2000, a periodical reported on the economic situation of Deutsche Telekom. It illustrated the article with a photograph of a man wearing a business suit sitting on a large and crumbling magenta-coloured “T”. The photographical portrayal of the applicant’s head had been placed onto the torso of another man using photomontage techniques. In that vein, the portrayal of the head was technically processed. The courts did not conclusively clarify the intensity of this processing. It is, however, not contentious that the head has been stretched by approx. 5%. The applicant can be clearly identified, despite the processing that has been carried out. In his opinion, the alteration constitutes a subliminal, negative manipulation of his facial characteristics. The applicant’s action for an injunction filed against the publisher of the periodical was successful at first instances, but rejected by the Federal Court of Justice (Bundesgerichtshof - BGH). The applicant has filed a constitutional complaint against the judgment of the Federal Court of Justice. He claims a violation of his general right of personality (Article 2.1 in conjunction with Article 1.1 of the Basic Law - Grundgesetz - GG).

II.

The constitutional complaint was successful. The Federal Constitutional Court has overturned the judgment of the Federal Court of Justice and remanded the case for a new decision. The decision is based on the following key considerations:

Freedom of opinion (Article 5.1 GG) also encompasses the graphic implementation by means of a satirical photomontage of a critical statement contained in a periodical article. The general right of personality (Article 2.1 in conjunction with Article 1.1 GG), however, provides protection against the dissemination of a picture manipulated by technical means which gives the impression of being an authentic portrayal of an individual. Such an interference with the right of personality is also not justified by the freedom of opinion if the picture is placed in a satirical light.

The photograph of the applicant’s head which was used for the photomontage alleges to be a photographic portrayal. At the same time – and in contrast to a typical caricature drawing – it does not give the observer any indication that the facial characteristics have been manipulated. Such an indication also does not follow from the fact that the rest of the portrayal is manifestly fictitious in nature. Notably, this does not apply to the portrayal of the head.

Photographs suggest authenticity, and the observer presumes that the individual portrayed really looks like that. This presumption is, however, wrong if the appearance of the face has been changed by means of photographic manipulation. The right of personality provides protection against manipulative distortion of a photographic portrayal, which is made accessible to third parties. The pictorial content certainly becomes incorrect if the photograph is altered to an extent that exceeds alterations which are common in photographic reproduction but are immaterial to the content. Such manipulations affect the right of personality, regardless of whether they are carried out with a good or injurious intention, or whether the observer regards the alteration as advantageous or disadvantageous for the person portrayed. The factual allegation regarding the appearance of the person portrayed which a photographic portrayal normally suggests becomes incorrect. In terms of freedom of opinion, incorrect information is not worthy of protection. This also applies to the utilisation of photographic portrayals in satirical contexts if the manipulation is not recognisable to the observer. The observer is then unable to interpret the alteration as a part of the alienation and distortions that are typical of satirical portrayals, and hence to evaluate them for his or her formation of an opinion.

The ruling of the Federal Court of Justice does not meet these constitutional requirements. The Federal Court of Justice largely argues that satirical pictorial content should be perceived as a whole, and that the face of the applicant was not to be taken into account as a separate component of the picture. This principle is, however, not to be applied if the manipulated part of the portrayal – as in the case at hand – has a separate content. In such a case, there is a need for a separate assessment from the point of view of protection of personality. The Federal Court of Justice will yet need to carry out this assessment.