The magazine Computer Bild was allowed to illustrate a text about DVB-T2 receivers in HD quality with a photo of Jan Böhmermann, although he had not agreed to the use. This was decided by the 15th Civil Senate of the Cologne Higher Regional Court in its ruling of February 21, 2019, and – in contrast to the Regional Court – dismissed an action brought by the TV presenter.
The magazine had printed a photo of the TV presenter from the program “Neo Magazin Royale” in an article under the headline “Readers Action Freenet TV DVB-T2 Receiver for HD TV FINALLY SHARP” without his consent. The article provided information about the system change from DVB-T to DVB-T2 and at the same time referred to a “promotional offer” from the magazine’s cooperation partner.
The 15th Civil Senate ruled that the article was in any case also to be classified as advertising for the receiver. Nevertheless, the publication of the picture was permissible because the contribution had also served the public’s interest in information. At the time of publication, the switchover to DVB-T2 technology was a matter of general social interest. In the article, readers had been given technical advice. The caption “FINALLY SHARP” also has an information content. On the one hand, it highlights the quality of the TV picture in HD and, on the other hand, the quality of the plaintiff as the presenter of a satirical program. At least since the publication of his poem “Schmähkritik,” Jan Böhmermann has been considered a “sharp” satirist nationwide. At the time of publication, the poem had also still been in front of the readers’ eyes, since the Hamburg Regional Court had ruled on its admissibility a week earlier with lively public participation. The addition “finally” alludes to the sharper picture of HD reception and at the same time to the fact that the Computer Bild author appreciates the work of the presenter.
In an overall assessment, the moderator would have to accept the publication of his image. It was obvious to readers that the program presented by the plaintiff could still be received with the advertised receiver. However, the impression had not been created that the plaintiff himself was advertising the specific product. The still from the program “Neo Magazin Royale” encroached only slightly on the plaintiff’s right of personality. It stems from a situation in which he voluntarily exposed himself to the gaze of the general public.
