Users of the social media network Facebook posted defamatory comments about refugees on their accounts, inter alia, comparing refugees to animals. In October 2015, the German newspaper Bild published these comments together with the users’ names and profile pictures under the heading: “Hatred against refugees – Bild shames the agitators”. One user sued the paper for violation of his privacy.
In an earlier ruling, the Munich Court of First Instance considered the publication of the comments including the profile pictures and names to be lawful. The Court concluded that the publication, by all appearances, was delivered in a form viewable to all Facebook users and therefore, the commentators could not have been harmed in their sphere of privacy by the print. According to the Munich State Court, the release of profile pictures next to a Facebook comment neither infringes the privacy of the commentator nor, as the individual is the photographer of the own profile picture, copyright laws. As the user of social media platforms uploaded their profile picture on Facebook themselves without constrictions, the further spread by other media is – based on the jurisdiction of the ECJ – no further communication to the public.
The OLG Munich reversed that decision. When balancing the right to the freedom of the press with the right to privacy the Court decided that the paper had no legitimate interest to publish the picture and the name of the user. For a material discussion about the comments of the users it was not necessary to publish their names and pictures.
Additionally, according to § 22 ArtCopyrightLaw (KUG) pictures of a person can only be published with the consent of the person shown in the picture. Uploading a picture to a website does not imply the users consent for third parties to distribute the picture, according to the Court. An exception to that rule applies according to § 23 para. 1 no. 1 KUG to pictures portraying an aspect of contemporary history. Therefore, the publication of the profile picture was possible without consent of the person shown in the picture, if the profile picture was considered to portray an aspect of contemporary history. But, the Court stated that the profile picture does not become a picture of contemporary history just because the person portrayed in the profile picture has expressed an opinion regarding contemporary history.