On June 18, 2018, the Cologne Court of Appeal decided that provisions of the German Act on the Protection of Copyright in Works of Art and Photographs (“KUG”) regarding the publication of photos for journalistic reporting will prevail over conflicting provisions of the General Data Protection Regulation (“GDPR”) (Docket number 15 W 27/18).
The applicant had filed a cease and desist claim to prevent a television program from being released. He briefly was depicted as a security guard in a report on the eviction of a building. In the first instance, the Regional Court of Cologne held that the respondent’s freedom of the press and freedom of expression prevailed over the applicant’s right to his own image. The judges applied Section 23(1) No. 1 of the KUG, which allows images of historical importance to be published without a person’s consent. The term “historical importance” covers not only events of historical-political significance, but all current and historical events of general social interest.
The Cologne Court of Appeal confirmed the decision and clarified that the applicant could not rely on the provisions of the GDPR. Article 85 of the GDPR allows EU Member States to adopt national legislation that deviates from provisions of the GDPR, inter alia where personal data is processed for journalistic purposes. It focuses on the necessity to achieve concordance between data protection, on the one hand, and freedom of expression and information on the other. According to the Court of Appeal, the precedence of the KUG will avoid an otherwise feared violation of freedom of expression and freedom of the media by the GDPR.
In general, the GDPR takes precedence over German law due to the hierarchy of norms between European and national law, except for those areas in which the national legislator expressly has been given room to implement rules through so-called opening clauses. Article 85 of the GDPR is an opening clause, which stipulates that Member States shall provide for exemptions from the GDPR for journalistic, scientific, artistic, and literary purposes, to ensure freedom of expression and information.
The KUG is a data protection law from 1907 that governs the publication of images (photos, films, paintings) of individuals. The requirements are not as stringent as those of the GDPR. Under the GDPR, any processing of personal data must have a legal basis in accordance with Article 6 of the GDPR. Usually, the data subject must have consented to the publication. The consenting party has the right to withdraw its consent at any time with effect for the future, and strict information duties must be met. Similarly, Section 22 of the KUG stipulates that images may only be distributed or publicly displayed with the consent of the person depicted. However, it suffices that consent has been implied, and consent can only be withdrawn where personal rights outweigh the principles of legal certainty and contract compliance. Section 23 of the KUG governs situations in which no consent is required, for example when an image is of historical importance; when it depicts a public assembly or a similar event in which the person took part; or where the person is only “an accessory” of the location displayed. There is extensive and detailed case law of the German Federal Court of Justice, the Federal Constitutional Court, the Court of Justice of the European Union, and even the European Court of Human Rights on the KUG, creating a legal certainty that courts yet have to establish regarding the GDPR.
The decision of the Cologne Court of Appeal is the first published decision dealing with the KUG in relation to the GDPR. It remains to be decided whether the KUG will continue to apply to non-journalistic photography.
