An essay by Andreas Behr . Attorney at Law
The title of the current exhibition at C/O Berlin celebrating the 100th anniversary of Leica photography pinpoints what lawyers dealing with photography-related issues are racking their brains over right now:
1. On the initiative of Germany’s minister of justice, Section 201a of the German Penal Code was amended earlier this year to the effect that a penalty may be imposed on persons who give third parties access to a photo of another person without that person’s consent if the photo is “capable of doing significant damage to the reputation of the person shown in it.”
2. The European Parliament is debating whether to place Europe-wide restrictions on what is known as freedom of panorama (that is, the right of a photographer to photograph copyright-protected buildings from public streets, walkways and squares).
3. Civil courts are having to deal with an increasing number of lawsuits in which people (by no means just celebrities) consider their personal rights to have been violated as a result of the creation or distribution of photographs.
While the attack on the freedom of panorama appears to have been thwarted in the European Parliament for now, these new developments still present cause for concern and good reason to examine what this means for photography in general and street photography in particular.
The 35 mm camera revolutionized the medium of photography by making it faster, more convenient and more affordable than ever before. Currently, we are experiencing a similar leap forward as a result of the digital revolution. Cell phones and now smartphones have put cameras in the hands of almost everyone everywhere, and there is virtually no limit to the number of pictures these phones can store. The 35 mm camera liberated photography from the studio, enabling it to discover the world outside; digital technology has enabled almost anyone to tramp the trails that were once reserved for lonely pioneers. And as the rise of the automobile led the authorities to tighten traffic laws, it only seems reasonable to put restrictions on camera use now, doesn’t it?
So from now on, according to Section 201a of the German Penal Code, anyone who gives a third party access to a photo taken of another person can be penalized if the photo is “capable of doing significant damage to the reputation of the person shown in it.” The restriction that the photograph needs to be shown “unauthorized” doesn’t help much, because it basically forces photographers to get a declaration of consent, and getting one would mean they would be doing staged street scenes, not street photography. Professional photographers who specialize in this type of photography can invoke the exception in Section 201a Paragraph 4, which says the deed is not punishable if a person is acting primarily out of legitimate interests, such as for art or science, research or teaching, reporting on current or past events, or similar purposes.” It is also worth noting that the German Bundesrat, which cooperates in the legislative process pursuant to the German Constitution, has “toned down” the justice minister’s proposal, to the effect that photographers cannot be penalized for simply taking these photographs, but only if they give third parties access to them. That said, ultimately it will still be up to judges to decide whether a photo is capable of doing significant damage to the reputation of the person in it—what criteria will apply?—and, should this be considered to be the case, if the legal exception applies because the photograph is classified as art. Amateur photographers typically will not be eligible for such an exemption. How many of them will have unwittingly committed a criminal offense since this law has entered into force—simply by uploading their snapshots to their website or posting them on Facebook or making them “accessible” to third parties in some other way?
There have also been developments in the area of civil law that give cause for concern. A ruling by the District Court of Berlin, recently confirmed by the Kammergericht, Berlin’s court of appeal, is a good example of the direction the understanding of the law is moving in.
As many people know, C/O Berlin had no domicile from the time it was forced to move out of the Postfuhramt until its new home, the Amerika Haus, was ready to move into. To keep C/O Berlin alive, a number of open-air exhibitions in front of the Amerika Haus were held. In one exhibition titled Ostkreuz:To the west. A new perspective on Charlottenburg, photographers from the agency Ostkreuz presented photos showing their view of the old and the new district of Charlottenburg.
One of those photos showed a woman crossing Hardenbergstraße in Charlottenburg, just down the street from Amerika Haus. Behind her is a building complex that has since been torn down. At the time it was home to several businesses, including a budget hotel and a pawnbroker shop. A woman in a normal everyday situation. A typical street scene in Charlottenburg.
The woman in the photograph, however, felt that her personality rights had been violated because the photograph had been taken without her knowledge and consent, and she hired a lawyer to have the photo removed immediately. Her request was granted, and the photo was removed from the exhibition. But that was not the end of the matter. She also sued for damages and attorney’s fees.
According to Section 22 of the German Artistic Copyright Act (Kunsturhebergesetz), in general, images of a person may only be distributed with the person’s consent. Section 23 Paragraph 1 of the same law cites exceptions to this rule, including for what is known as “persons of contemporary history” (politicians, stars and starlets, etc.). The relevant exception here, according to Section 23 Par. 1 No. 4, applies for images if “their distribution or exhibition serves a higher artistic interest.” This means that in principle, a photograph taken for artistic purposes may be distributed even without the consent of the person shown in it.
The plaintiff argued that the respective photograph could not be categorized as art at all. According to the plaintiff, it was a simple snapshot whose artistic quality should not be over-estimated in the age of digital photography. The photographer were not allowed to invoke the street photography tradition because, the plaintiff argued, he had taken hundreds of photos in a very short period of time and then, presumably at his computer, picked out a few and deleted the rest. This way of working, which owes its existence to digital photography, was fundamentally different from the original street photography, the plaintiff claimed. The pioneers of street photography only had had film cameras, which forced them to be very selective and to take a significantly smaller number of pictures at a given time. Plaintiff concluded by saying that this much slower, more targeted approach meant that the photographers of that time were able to approach the people they photographed—at the very latest after having taken the photograph—, which allegedly was what those photographers normally did.
Would this legal opinion ultimately prevail, this kind of photography would become punishable by law under Section 201a of the Penal Code, because photographers would no longer be able to invoke artistic freedom, as their photos were no longer considered art. Digital technology would have brought about the end of street photography as an art form.
Luckily, it hasn’t gone that far yet. Standing in the way of that outcome is the “broad” definition of art as given by the German Federal Constitutional Court. The district court and the Kammergericht have not allowed themselves to be lured into that minefield either, preferring instead to recognise that the respective photo was to be categorized as art.
But then there are limits on artistic freedom too. Artistic freedom places limits on personal rights, and personal rights limit artistic freedom. The constitution gives special protection to both, so when they collide they need to be carefully weighed against one another. However, in the event that a violation is only minor or if there is the mere possibility that a violation could be serious, according to the Federal Constitutional Court personal rights must take a back seat to artistic freedom.
In the case of the woman photographed on Hardenbergstraße, both the district court and the Kammergericht found that her personal rights had not been seriously violated, and they denied her claim for damages on those grounds. At the same time—and this is what makes their rulings so explosive—both courts found that the photographer and C/O Berlin did not have the right to show the photo publicly, at least not in the way that they did. The legal consequence of this was that the plaintiff managed to get reimbursed for part of her attorney’s fees.
This was a classic about-face for the district court. In the first part of its decision, when it was reviewing the damages claim, it found that the plaintiff’s personal rights had not been seriously violated (and rightly so), because—in the words of the district court—the photograph showed the woman in a normal, everyday situation, just walking across a public street. But, as far as the cease-and-desist order and, as a consequence, the reimbursement of attorney’s fees is concerned, this everyday photograph is considered a sufficiently serious violation of the plaintiff’s personal rights.
The district court held the opinion that the plaintiff’s so-called private sphere had been affected, not her so-called social sphere. A brief explanation of these terms may be required here: When it comes to the protection of personal rights, German law distinguishes between the individual or social sphere (people in relation to their environment), the private sphere (their private life in their own home or in “places of retreat” that are protected from the public), and the intimate sphere (which includes their inner world of thoughts and feelings as well as affairs of a highly personal nature). The German legal system provides different levels of protection for these spheres, and this plays a role when a violation is being weighed in court. The intimate sphere enjoys virtually unlimited protection while invasions of the individual or social sphere tend to be tolerated.
Given that the plaintiff was on a public street, it is difficult to understand why the court found that her private sphere had been affected. The court supported this conclusion with reference to a ruling by the Federal Court of Justice. But the facts of that case were very different, because it involved a celebrity (that is, a “person of contemporary history”) who was being relentlessly pursued by paparazzi. The analogy is flawed, and here is why. Section 23 Par. 1 No. 1 of the Artistic Copyright Act, which applies to so-called “absolute” or “relative” persons of contemporary history, protects the public’s legitimate right to information. In such cases, a photograph is a means to an end. If there is no legitimate information interest (for instance, for events in a person’s life that are entirely private, in exceptional cases, under the conditions given in the Federal Court of Justice’s ruling, even if they take place in public), the photograph may not be distributed. Section 23 Par. 1 No. 4 of the same law has a different scope of application. Here a photograph is an end in itself, not a means to an end, because the photograph itself is what is protected by the artistic freedom as guaranteed by the constitution. As a result, its “news value” is irrelevant. Interpreting Section 23 Par. 1 No. 4 of the Artistic Copyright Act as narrowly as the district court has done practically eliminates this law’s scope of application because the people who appear in photographs are in general not persons of contemporary history (if they were, Section 23 Par. 1 No. 1 would apply) and the situations in which they find themselves from this perspective are always private life events. This would automatically rule out the possibility of a social sphere at all, because it would make every move a person makes — even crossing a public street—“an entirely private life event with no connection to the public.”
To put it bluntly, the district court’s rationale essentially makes street photography an illegal art form in one fell swoop.
The Kammergericht seems to have spotted this danger, which is why it backed up its own decision differently. The judges concluded that presenting the photo as part of an open-air exhibition would have to be evaluated differently than if it had been presented in a “conventional” indoor exhibition attended only by art enthusiasts. If this approach prevails, the manner in which an exhibition is organized will determine whether presenting a photo is legal or illegal in the future. A photo that can be exhibited freely in an elite circle of art lovers will turn into an illegal attack on personal rights as soon as it is put on the street. Street photography that can only be shown indoors? The photographer’s lawyer has filed a petition for the Federal Constitutional Court to review the case. It will be interesting to see what happens next.
Street photography in public spaces—still legal or already banned?
These swords of Damocles will be hanging over every photographer who does street photography. There is no way of telling what impact this will have on the genre. Granted, there is not necessarily reason to fear that there will be spectacular cases of photographers being convicted based on Section 201a of the Penal Code, or that there will be a wave of lawsuits against existing work. However, the possibility of legal consequences alone may be such a source of anxiety that photographers will simply stop taking certain kinds of pictures, or at least not put them on display. How many iconic examples of street photography would never have come into existence had these conditions always prevailed?
This essay was published for the C/O Berlin Magazine No. 08 / 08.2015 / 5. Year