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Germany: Bild and Axel Springer human rights complaint set for court judgement

Two companies will find out this week if Strasbourg judges accept their free expression complaint against German authorities over a celebrity photo ban.

The European Court of Human Rights will deliver its judgement in the case Bild GmbH & Co. KG and Axel Springer AG v. Germany (nos. 62721/13 and 62741/13) on Thursday 10 January.

The applicants, the limited liability companies Bild GmbH & Co. KG and Axel Springer AG, are legal persons established under German law and based in Berlin.

The second applicant company publishes the mass-circulation daily newspaper Bild and the first manages the newspaper’s website.

The case concerns a ban on the two applicant companies publishing or distributing a disputed photograph.

On 20 March 2010, X, a well-known Swiss journalist who presented the weather forecast on television, was arrested and remanded in custody on suspicion of the gross rape and assault of his former wife.

On 21 July 2010, the Bild newspaper and website published an article accompanied by
two photographs, one of which – the subject of the present dispute – showed X seated bare-chested in the yard of a prison surrounded by other prisoners. X was released on 29 July 2010.

The criminal proceedings, which attracted heavy media coverage, ended in an acquittal.
On 15 December 2010, X applied to the Cologne Regional Court for a ban on any further publication of the impugned photograph and for reimbursement of his lawyer’s fees.

In June 2011, the court banned the applicant companies Bild and Axel Springer AG from publishing or distributing the photograph without X’s consent and ordered them to reimburse some of the lawyer’s fees.

By two judgments of 14 February 2012 the Cologne Court of Appeal dismissed appeals by the applicant companies and reduced the amount of lawyer’s fees to be reimbursed.

The Court of Appeal held that the publication and distribution of the photograph had been unlawful because the applicant companies had failed to obtain X’s consent and there had been no link between the photograph and any current event. It ruled that the photograph had had no informative value.

It added that even if it had had any informative value, regard should have been
had to the fact that at the time the photograph had been taken X had been in a place of
confinement inaccessible to the public where he had had no reason to expect to be photographed.

The fact that X had long been the subject of media reports did not deprive him of protection for his privacy when in places of confinement.

The Court of Appeal dismissed appeals on points of law. On 23 March 2012, Bild and Axel Springer AG lodged two constitutional appeals, which the Federal Constitutional Court declared inadmissible.

Relying on Article 10 (freedom of expression), the applicant companies complain that the German courts infringed their right to freedom of expression and failed to comply with the criteria established by the Court in cases involving balancing Article 8 (right to respect for private life) and Article 10.

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