Christian Wulff, a former German Federal President who resigned in February 2012, caught the attention of the public in May 2015 with his announcement that he was back together with his ex-wife Bettina Wulff. Following this, the press published a photograph of him pushing a cart at the parking lot of a supermarket next to his wife, Bettina Wulff. Mr. Wulff felt hurt in his right to privacy. He filed a lawsuit aiming to prohibit the publication of this private photo. In first and second instance Mr. Wulff was successful; the German Federal Court now overruled the previous decisions and decided that Mr. Wulff’s right to privacy were not infringed by the publication of the photo.
The German Constitution protects both individuals’ private sphere and the freedom of press. Moreover, the German Copyright Act for Art Work and Photography (“Kunsturhebergesetz”) stipulates that the press may publish photos where the depicted person has agreed with its publication (Section 22). Without such consent, publication is only allowed if the image refers to history, and where no legitimate interest of the depicted person is infringed (Sections 23(1) no. 1 and Section 23(2) of the same law). The German Federal Court thus had to decide between the principles of the German Constitution, and whether the legal conditions for the lawfulness of publication of the photo without consent of Mr. Wulff were fulfilled in the present case.
On 6 February 2018, the German Federal Court ruled that the publication of the photo is lawful. The image refers to a historic figure and could thus be published without his consent, pursuant to Section 23(1) no. 1 of the German Copyright Act for Art Work and Photography. The interest in Mr. Wullf’s person has not expired with his resignation in 2012, but instead, Mr. Wulff remains a public figure, still attends public events and is recognized in his position as a former Federal President of Germany. Moreover, no legitimate interest of Mr. Wulff exists in avoiding the publication of the photo. The picture was taken in a public space and is to be attributed to Mr. Wulff’s social sphere. It does not show Mr. Wulff in an unkind or private way, but would rather convey the image of a providing father.
Another key reason for the decision of the Federal Court was the fact that Mr. Wulff informed the public himself about his private and family life not only in the past but also in the present, which shows his content to having these issues publicly discussed. Furthermore, the journalistic worth of the article is the discussion about the distribution of roles between man and woman and especially between husband and wife, which is a discussion of public interest.
Once a show-off, forever prey of paparazzi? Can – or should – the past consent of famous people to public discussions about their private life lead to their every step being followed and photographed? Most people would probably tend to answer negatively. In the present case, however, Mr. Wulff was the one who released to the press very private news about his relationship with his wife. This was the trigger to the paparazzi, as considered by the Federal Court. The present decision sends a clear sign: there is already a general public interest in following public figures; their privacy is thus already limited when compared to other people that do not occupy public positions. If they show they are open to being on everyone’s tongue, they shall carry the consequences.