Cologne Higher Regional Court on secret video recordings of Wallraff

Covertly obtained sound and film material may give rise to a claim for injunctive relief, even if it is not broadcast. Even the disclosure to third parties may violate the general right of privacy and constitute a criminal offense. This was stated by the 15th Civil Senate of the Cologne Higher Regional Court in a decision dated July 18, 2019.

The decision was made in connection with research for the TV format “Team Wallraff”. The complaint was filed by a patient of a closed psychiatric hospital who had suffered from an autism disorder since his early youth. A journalist (defendant to 1) had been commissioned by the production company (defendant to 2) with the goal of undercover research, be hired as an intern at the clinic under a false name. During her internship, she made secret audio and film recordings of the plaintiff, among others, to a disputed extent. On March 18, 2019, the television station RTL broadcast a report on conditions in psychiatric hospitals in Germany. Audio and visual recordings of the plaintiff were not part of this broadcast.

The parties originally disputed the plaintiff’s request that the recordings concerning him not be processed or disseminated. In the course of the proceedings, the defendants submitted affidavits stating that the material had been deleted. Both parties then declared the legal dispute to be settled, so that only the costs remained to be decided. In this context, it is envisaged that the court will assess the prospects of success of the action in a “summary review”.

The 15th Civil Senate of the Cologne Higher Regional Court ruled that the defendants must bear the costs of the proceedings. Without deletion of the material, they would likely have lost the lawsuit, even if no publication of the material had been intended at all. The journalist had already committed the elements of crime under Sections 201 (1) no. 2 , 201a ( 1) no. 3 StGB and 203 (4 ) sentence 1 StGB by recording the material or passing it on to the production company.

The plaintiff’s highly personal sphere of life had been violated by the recordings. A trainee who was brought into the clinic as a sham was also a so-called cooperating person within the meaning of Section 201 ( 4) sentence 1, ( 3) sentence 1 of the Criminal Code. Although the production company cannot itself commit any criminal acts, it is liable under civil law via § 31 BGB.

The Senate has stated that investigative research by journalists can be justified in principle. This is the case if, after due consideration of the conflicting interests and taking into account the need to protect the third parties, “considerable wrongdoing” would otherwise not be discovered and the legitimate interests of third parties must therefore take a back seat, at least at the stage of the search. However, the defendants had not submitted sufficient evidence for a justification in the present case.

Finally, the Senate does not see any injunctive relief arising from the General Data Protection Regulation(GDPR). Article 9 of the GDPR does not apply to processing for “journalistic purposes” by private broadcasters and their “auxiliary and associated companies” in accordance with Section 9c ( 1) sentences 4 to 6 RStV (“media privilege”).

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.