Information Note on the Court’s case-law 194

March 2016

Kahn v. Germany - 16313/10

Judgment 17.3.2016 [Section V]

Article 8

Article 8-1

Respect for private life

No award of damages against publisher for breaching injunction not to publish photographs: no violation

Facts – The applicants are the two children of a former goalkeeper with the German national football team. Following the publication in a magazine of s everal photographs of the applicants, they applied to the Regional Court. In January 2005 the court delivered judgments finding a breach of the applicants’ right to their own image, and issued an injunction banning any future publication of photographs of them, subject to fines for non-compliance. In 2007, after the publisher of the magazine printed further photographs in breach of the injunction, the Regional Court ordered it to pay three fines of EUR 5,000, EUR 7,500 and EUR 15,000 respectively.

In Decemb er 2007 the applicants applied to the Regional Court for an order requiring the publisher to pay at least EUR 40,000 by way of pecuniary compensation. In July 2008 the Regional Court found in the applicants’ favour. However, in November 2008 the Court of A ppeal quashed the judgments in question and refused the applicants leave to appeal on points of law. It found that it was unnecessary to award pecuniary compensation, as the Regional Court had issued a general injunction not to publish under the terms of w hich the applicants could request that the publisher be ordered to pay fines. The right to pecuniary compensation was of a subsidiary nature and no such award should be made where other options existed for protecting individuals’ personality rights. Furthe rmore, the Code of Civil Procedure provided for fines of up to EUR 250,000 and for prison terms of up to two years for persons in default of payment. Accordingly, the applicants had had access to effective means protecting them against future breaches of t heir right to their own image.

The applicants lodged unsuccessful appeals with the Federal Court of Justice and the Constitutional Court.

Law – Article 8: The question was not whether the applicants had been afforded protection against the undisputed breac hes of their right to respect for their private life, but rather whether, from the standpoint of Article 8 of the Convention, the protection afforded to them (the possibility of having fines imposed on the publisher) had been sufficient, or whether only a pecuniary award could provide the necessary protection against the infringement of their right to privacy.

The amount of the fines had been increased on each occasion.

The applicants had not availed themselves of the option of bringing proceedings before the Court of Appeal to contest the amount of the fines set by the Regional Court. They had not given reasons why such an application to the Court of Appeal would have be en bound to fail or would have been incapable of remedying the alleged inadequacy in the amount of the fines.

As a result of the actions brought by the applicants, the publisher had been required to pay fines totalling approximately 68% of the sum claimed by the applicants in the proceedings at issue. Furthermore, the procedure for imposing the fines had been speedy and straightforward, in so far as the Regional Court had confined itself to finding that the publisher had breached the general injunction not to publish and to setting out a few additional considerations in order to determine the appropriate amount, which had been increased each time.

In this context the Court deemed it necessary to take into consideration the nature of the material found by the courts to have been published unlawfully. The Court of Appeal had found that, although publication of the photographs had breached the applicants’ right to their own image, the interference had not been sufficiently serious to justify or necessitate an aw ard of financial compensation. The Federal Court of Justice had specified that the applicants – whose faces had not been visible or had been pixelated – could only be identified on the photographs through the presence of their parents and the accompanying text, and that the decisive subject of the reports had not been the applicants themselves but rather their parents’ relationship following the breakdown of their marriage. The Court accepted the finding of the German courts that, in view of the nature of t he photographs, there had been no call to award additional compensation. Moreover, the possibility of obtaining pecuniary compensation was not ruled out by the mere fact that the person concerned could request the imposition of fines on the publisher; howe ver, this depended primarily on the seriousness of the breach and the overall circumstances of the case.

In these circumstances it was not possible to deduce from Article 8 of the Convention a principle whereby, in order to protect a person’s private life in an effective manner, an order requiring a publisher to pay a sum for failing to comply with an injunction not to publish would suffice only if the sum in question went to the victim. This was true provided that the State, in the exercise of its margin o f appreciation, afforded to injured parties other potentially effective remedies that could not be said to restrict in a disproportionate manner the opportunities for obtaining redress for the alleged violations.

Hence, the German authorities had not faile d in their positive obligations towards the applicants and had afforded them sufficient protection under Article 8 of the Convention.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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