Dr. Brennecke, numerous media outlets have photos of the people from the so-called Sylt video shown unpixelated. Do you think this is allowed under press law?
Carsten Brennecke: At least I managed to do that Imagenewspaper and WDR discovered that the people’s photos were shown without pixels. The Image has also published the names of the people and numerous details from their lives in profile form. The publication of the unpixelated images unlawfully violates the person’s right to the image and thus his general personal rights. Such an Witch hunt for those involved by publishing unpixelated images is therefore not permitted.
However, the WDR explicitly pointed out that “this is a contemporary historical event and that it outweighs the interests of the people shown”. Doesn’t that make sense?
Brennecke: In principle, you are not allowed to publish photos of people without their permission. An exception may apply if a contemporary historical event is reported. The requirements that case law places on the confirmation of a contemporary historical event are relatively low. The statements made by those involved caused a lot of commotion, so it can probably be assumed that this was a historical event.
So where is WDR wrong?
Brennecke: On a crucial point: even when reporting on a contemporary historical event, illustrations of those involved are inadmissible because their interests predominate. Courts believe that it is in the paramount interest of the affected person if he or she is pilloried through reporting and this threatens serious consequences of social and professional exclusion.
“The sung slogan should not even be a criminal offense.”
And that is the case with the ‘Foreigners Out’ shouters from Sylt?
Brennecke: Precisely. Numerous people involved have already lost their jobs as a result of the news. The Oberlandesgericht Munich has already brought a similar case Image– Reporting banned due to the pillory effect: the newspaper had published inflammatory messages from social networks, together with the photo and username of those affected. This was rightly banned because of the unacceptable pillory effect.
So the same logic applies in this case too?
Brennecke: It should also be taken into account that the Sylt singers Sung slogan “Germany for the Germans, foreigners out” shouldn’t even be punishable, but is allowed as speech. The Federal Constitutional Court has already confirmed this with regard to a poster with the inscription ‘Foreigners out’. The lack of criminal liability also means that reporting that makes those involved identifiable is, on balance, not admissible.
And what about the broadcaster’s argument that the people featured in the video placed themselves in a semi-public position by distributing the video?
Brennecke: This argument of WDR is not valid according to current case law: In the case just described, in which the Munich High Court rejected the reporting of the Image was banned, the situation was similar: the newspaper had published contributions from social network users who had previously even publicly distributed them themselves.
What is legally illegal about that?
Brennecke: The publication of the Image was still not allowed because the photos could obviously be published in a medium with such a wide reach Image or the WDR has a completely different publicity and therefore a pillory effect than a message on a social network. Here, according to the press law, the WDR is not advised at all or is given poor advice.
Under what circumstances can the media actually publicly distribute videos shot in a private environment?
Brennecke: In principle, the distribution of private videos showing the faces of those affected is not permitted.
Without exception?
Brennecke: No, but exceptions are only allowed if there is a very special public interest in information about a contemporary historical event and the interests of those involved do not outweigh this. However, such cases do not occur with such low-level misconduct. It must be about dramatic misconduct, such as committing high-profile capital crimes.
“I can only advise the people in the Sylt video to defend themselves criminally against this.”
Many private accounts also distribute the Sylt video without making it unrecognizable. Can private individuals do more here than the media?
Brennecke: No, private accounts are even less allowed than media! If private accounts publish the images without pixelation, this is even more unacceptable than in the media. Because, in my opinion, publications on social media do not even report on a contemporary historical event, but rather contributions that only aim to put pressure on people, their environment and employers, such publications are simply inadmissible.
Many Internet users have also diligently collected not only the names of those involved, but also other personal data of the Sylt singers in order to identify them and put pressure on employers and universities that contact or employ these participants.
What punishment do the people behind these accounts face?
Brennecke: Such publishing of datasets is now known as doxxing Section 126a StGB criminal and is punishable by a prison sentence of up to two years. I can the people shown unpixelated in the Sylt video and whose personal data has been made public, we only encourage you to defend yourself against this by all legal means, including criminal prosecution.
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Dr. Carsten Brenneckeborn in 1975, is a press lawyer at Law firm HÖCKER.