FIFTH SECTION

DECISION

Application no. 43231/16 B.Z. ULLSTEIN GMBH against Germany

The European Court of Human Rights (Fifth Section), sitting on 22 September 2020 as a Committee composed of:

Ganna Yudkivska , President, Mārtiņš Mits , Anja Seibert- Fohr , judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 20 July 2016,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant company, B.Z. Ullstein GmbH, is a German private limited company whose registered office is in Berlin. It was represented before the Court by Mr S. Aroukatos , a lawyer practising in Dresden.

2 . The facts of the case, as submitted by the applicant company, may be summarised as follows.

3 . In the early hours of 23 April 2011, P., who was 18 years old at the time, attacked a man in a subway station and hit him on the head with an almost full, hard plastic bottle. When the man was lying on the ground, P. kicked his head several times, causing a severe craniocerebral injury. P. also inflicted injuries on a man who had come to the aid of the injured man. P. was able to escape from the crime scene unrecognised. However, the incident had been recorded by surveillance cameras. As part of an appeal for information, the recordings were made public and shown in the mass media (for example, Tagesschau , bild.de ). P. turned himself in to the police shortly afterwards.

4 . Prior to the start of the trial, the Berlin Regional Court ordered the media not to report on the trial in a way which would make P. identifiable to the public. On 23 August 2011 the trial began with a confession from the accused.

5 . On 24 August 2011 a report on the first day of the trial appeared in the applicant company ’ s newspaper B.Z. . It contained several pictures: a pixelated photo of P. which had been taken in the courtroom, a picture from the surveillance camera which showed P. kicking the victim, and an unpixelated portrait photo from an unknown source in which P. could be identified (caption: “That is why B.Z. shows the face of Torben P.”). In the accompanying text, it was stated that the newspaper had abided by the court order in order to ensure that the Court would not forbid the newspaper ’ s journalists to attend the trial. However, the newspaper explained that, due to public interest in P. ’ s identity, it had decided to publish a photo that had been taken outside the main trial.

6 . On 8 September 2011 the Hamburg Regional Court granted P. a temporary injunction against the applicant company prohibiting the publication of the portrait photo.

7 . On 19 September 2011 the criminal proceedings at the Berlin Regional Court ended with a conviction for attempted manslaughter and other offences. The court imposed a prison sentence of 2 years and 10 months on P., who appealed. On 28 March 2012 the Federal Court of Justice confirmed the judgment of the Berlin Regional Court.

8 . On 13 April 2012, following an oral hearing on 3 February 2012, the Hamburg Regional Court issued an injunction prohibiting the applicant company from distributing or publishing the portrait photo of P. In its judgment, the court addressed the considerable public interest in the proceedings, which had been aroused in particular by the outbreak of juvenile violence and by the reference to the debate on video surveillance of public spaces. However, it was also necessary to take into account the fact that P. had been a young adult ( Heranwachsender ) at the time of his crime and benefitted therefore from particular protection under the provisions of the criminal law relating to young offenders. In this respect the Regional Court pointed out that the Juvenile Courts Act aimed at imposing appropriate and reasonable educational sanctions on the one hand, but also at avoiding a stigmatisation of the young offender in view of his still ongoing personal development and his social and professional integration on the other hand. Identifying media coverage bore the risk of compromising P. ’ s personal development and his later resocialisation which was particularly important for young adult offenders as the Juvenile Courts Act provided for limited sentences and simplified rules regarding early release.

9 . The Regional Court also took into account the presumption of innocence which applied to P. despite his confession. It further assumed that P. could not be identified from the surveillance camera recordings. He had therefore not been known to the public until the publication of the portrait photo in the applicant company ’ s newspaper. Other media had only published pixelated photos of P. before. When balancing the competing interests, the court held that prohibiting the applicant company from publishing the identifying photograph did not restrict the exercise of freedom of the press significantly.

10 . On 9 July 2013 the Hamburg Court of Appeal confirmed the judgment of the Hamburg Regional Court and dismissed the applicant company ’ s appeal. With regard to P. ’ s confession, it emphasised that P. had not sought publicity. As the accused he had been obliged to attend the hearing. The court also pointed out that reporting had still been possible and that the minor restriction had been justified, particularly since the information value of the portrait photo was only limited.

11 . On 13 January 2016 the Federal Constitutional Court refused to admit for adjudication a constitutional complaint brought by the applicant company, without providing reasons (1 BvR 3061/14).

12 . Article 823 § 1 of the Civil Code ( Bürgerliches Gesetzbuch ) states that anyone who, acting intentionally or negligently, unlawfully violates the rights to life, physical integrity, health, liberty, property or similar rights of others is required to afford redress for any damage arising in consequence.

13 . Under Article 1004 § 1 of the Civil Code, where another ’ 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.

14 . Section 22(1) of the Copyright (Arts Domain) Act ( Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie – Kunsturhebergesetz ) provides that images representing a person may be distributed only with the express permission of the person concerned. The first paragraph of section 23(1) of the Act provides for exceptions to this rule where the images portray an aspect of contemporary history ( Bildnisse aus dem Bereich der Zeitgeschichte ), on condition that publication does not interfere with a legitimate interest ( berechtigtes Interesse ) of the person concerned (section 23(2)).

COMPLAINT

15 . The applicant company complains under Article 10 of the Convention of the injunction preventing any further publication of the portrait photo of P.

THE LAW

16 . The applicant company complained that the injunction violated its journalistic freedom as part of the right to freedom of expression. It relied on Article 10 of the Convention. The relevant parts provide:

Article 10

“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 (...)

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 (...)”

17 . The applicant company argued that by downplaying the importance of photographs for journalism, the national courts had substituted its journalistic choices regarding techniques of presentation. Furthermore, it claimed that the courts generally decided in favour of the personality rights of juvenile defenders and therefore did not attach to the freedom of expression the same level of importance as to the right to private life. In assessing the newspaper report the courts had not sufficiently taken into account that it served a significant public interest, that due to the surveillance camera footage P. was already known to the wider public and that the article had been accurate and factual.

18 . The Court notes at the outset that the injunction constituted an interference with the applicant ’ s right to freedom of expression and was based on the relevant provisions of the German Civil Code (Articles 823 § 1 and 1004 [by analogy] of the Civil Code and sections 22 et seq. of the Copyright [Arts Domain] Act – see paragraphs 12-14 above). It further notes that it was aimed at the protection of the reputation and rights of others. Therefore, the Court will limit its assessment to the question of whether the injunction was “necessary in a democratic society”.

19 . Having been required on numerous occasions to consider disputes requiring an examination of the fair balance to be struck between the right to freedom of expression and the right to respect for private life, the Court has developed general principles emerging from abundant case-law in this area (see, among other authorities, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 83 to 93, ECHR 2015 (extracts)).

20 . The Court also reiterates that the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by Article 10 of the Convention, in particular when a balance has to be struck between conflicting private interests. Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court ’ s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts (see Axel Springer SE and RTL Television GmbH v. Germany , no. 51405/12 , § 41, 21 September 2017). Furthermore, the outcome of the balancing exercise will be acceptable in so far as those courts applied the appropriate criteria and, moreover, weighed the relative importance of each criterion with due respect paid to the particular circumstances of the case (see Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary , no. 22947/13, § 68, 2 February 2016, and Faludy ‑ Kovács v. Hungary , no. 20487/13 , § 29, 23 January 2018, with further references).

21 . The Court has identified, as far as relevant for the present case, the following criteria in the context of balancing competing rights: the contribution to a debate of public interest, the degree to which the person affected is known, the circumstances in which the photographs were taken, the content, form and consequences of the publication, as well as the severity of the sanction imposed. The Court considers that the criteria thus defined are not exhaustive and should be transposed and adapted in the light of the particular circumstances of the case.

22 . Turning to the facts of the present case, the Court observes that in determining whether the portrait photo contributed to a debate of general interest, the domestic courts acknowledged that the incident triggered security concerns f or the general public, because P. did not have a criminal record and the outburst of violence had occurred without any plausible reason. Furthermore, the crime had taken place in a public subway station. However, the courts did not attribute the same degree of justified public interest to the portrait photo of P. They held that the picture had only limited informational value.

23 . The Court has previously recognised that photojournalism can contribute to debates of public interest ( see News Verlags GmbH & Co.KG v. Austria , no. 31457/96, § 52-60 ECHR 2000 ‑ I) and that the public might have an interest in having someone ’ s physical appearance disclosed (see Axel Springer SE and RTL Television GmbH , cited above, § 43). Furthermore, Article 10 also protects the form in which ideas and information are conveyed ( see Oberschlick v. Austria (no. 1) , 23 May 1991, § 57, Series A no. 204, and Bild GmbH & Co KG and Axel Springer AG v. Germany ( dec ), nos. 62721/13 and 62741/13, § 34, 4 December 2018) . At the same time, the Court has highlighted that the interest of revealing the identity of a convicted person is not self-evident, but may depend on different factors ( see Österreichischer Rundfunk v. Austria , no. 35841/02, § 68, 7 December 2006). Considering that the picture of P., which had been taken on another occasion, did not provide any additional information with respect to the reported attack, except for revealing his identity, and did not add credibility to any information in the accompanying text (compare Axel Springer SE and RTL Television GmbH , cited above, § 46), the Court considers that the information on P. ’ s physical appearance did not contribute significantly to the debate on the case. It therefore sees no reason to call into question the domestic courts ’ differentiation between the debate and the picture as well as the conclusion that the information value of the portrait photo was only limited (see paragraph 10 above).

24 . Regarding the degree of notoriety of P. and the subject matter of the article, the domestic courts took into account that P. had not been a public figure before committing the crime and held that P. ’ s identity had been revealed neither by other media reports nor by the surveillance camera footage, which only gave an impression of his stature, physical characteristics and clothes. As concerns P. ’ s confession, the courts rejected the argument that by confessing to the crime P. had deliberately waived his personality rights. On the contrary, they held that P. had been obliged to appear in court and that his confession had formed part of his defence strategy. They also highlighted P. ’ s vulnerability as an adolescent. By referring to the ideas underlying the Juvenile Courts Act, they emphasised the importance of protecting juveniles against stigmatisation and of maintaining the possibility to reintegrate them into society.

25 . The Court has previously held that the mere fact that a person is the subject of criminal proceedings does not justify treating the person concerned in the same manner as a public figure who voluntarily exposes himself to publicity, and cannot remove the protection of Article 8 ( see Eerikäinen and Others v. Finland , no. 3514/02, § 66, 10 February 2009, and Bédat v. Switzerland [GC], no. 56925/08, § 76, 29 March 2016). The Court therefore sees no reason to disagree with the national courts ’ findings that P. never voluntarily reached out to the public and that, due to his age, particular importance had to be attached to the protection of his personality rights.

26 . As the picture was made available to the press by an unknown source and as there are no indications that the picture had been taken without P. ’ s knowledge or by subterfuge or other illicit means, the Court accepts that the national courts did not address the context and the circumstances in which the published photo was taken.

27 . As far as the content, form and consequences of the publication are concerned, the Court notes that the court injunction only concerned the publication of the portrait photo by which P. could be identified and not the article as such. It is therefore plausible that the domestic courts have dealt only with the portrait photograph. The Hamburg Regional Court took into account the presumption of innocence and highlighted the dangers of stigmatisation and the obstacles to reintegration into society (see paragraphs 8-9 above). The domestic courts also took into account P. ’ s vulnerability as a minor. The Court has particularly emphasised the vulnerability of minors and adolescents with reference to Principle 8 set out in the Appendix to Recommendation Rec( 2003)13 of the Committee of Ministers to member States on the provision of information through the media in relation to criminal proceedings, in Van Beukering and Het Parool B.V. v. the Netherlands (see Van Beukering and Het Parool B.V. v. the Netherlands ( dec. ), no. 27323/14, § 36, 20 September 2016). In this case the Court held that the adolescent ’ s right to respect for private life even prevailed, although he had voluntarily sought media attention in another context.

28 . Regarding, lastly, the severity of the sanctions imposed on the applicant company, the Court considers that, although every sanction is capable of having a chilling effect (see Couderc and Hachette Filipacchi Associés , cited above, § 151) , in the present case the sanction did not constitute a particularly severe restriction on reporting, as the national courts only ordered the applicant company to refrain from any further publication of the photograph. As the national courts pointed out, the applicant company was not prohibited from publishing and illustrating articles, but only from publishing the portrait photo of P. that made him identifiable (see Bild GmbH & Co KG and Axel Springer AG , cited above, § 39).

29 . The Court recognizes that the national courts carefully balanced the right of the applicant company to freedom of expression against P. ’ s right to respect for his private life and considered the various factors that are relevant under the Convention including the latter ’ s vulnerability.

30 . In these circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that there are no reasons to substitute its view for that of the domestic courts, and that the latter have complied with their obligations under Article 10 of the Convention.

31 . Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 October 2020 .

Anne-Marie Dougin Ganna Yudkivska Acting Deputy Registrar President