Karlsruhe Higher Regional Court: Publication of image sequences from the RTL program “Pocher – gefährlich ehrlich” prohibited

The civil dispute between the plaintiff (Boris Becker) and the defendant (Oliver Pocher) arose from an approximately 15-minute segment broadcast on 29.10.2020 in the RTL television program “Pocher – gefährlich ehrlich” (“Pocher – dangerously honest”) hosted by the defendant. In the article, the plaintiff is awarded a “fake” fashion prize (“Fashion Brand Award”) by a fictitious magazine for a fashion line operated by the plaintiff.

The plaintiff believes that the use of the video recordings obtained by deception violates his personal rights and has filed a claim against the defendant with the Regional Court of Offenburg to stop the distribution and to delete the recorded film and image recordings.

The Regional Court dismissed the action in its judgment of November 15, 2022, because in the specific case, the freedom of expression and broadcasting, which the defendant could invoke, took precedence over the plaintiff’s general right of personality.

The plaintiff appealed against this ruling to the Karlsruhe Higher Regional Court and was vindicated by a judgment handed down today.

The defendant is now prohibited from continuing to distribute the disputed image sequences. He must also delete the image sequences if they are published on his own website.

In support of its decision, the 14th Civil Senate of the Higher Regional Court stated that the plaintiff had not given effective consent to the use of the image sequences produced because the plaintiff had been deliberately misled by the defendant about the purpose of the recordings.

While the plaintiff was made to believe that he was receiving a serious, genuine prize for his fashion label, the actual purpose was to demonstrate how the plaintiff was induced to accept a “donation sum” incorporated into the trophy without his knowledge.

Use of the image sequences without the plaintiff’s consent would only be justified if the disputed images were to be classified as “contemporary history”. However, after weighing up the plaintiff’s right of personality against the defendant’s freedom of expression and broadcasting, this could not be assumed.

The public interest in the plaintiff’s personal and economic situation was considerable when the program was broadcast due to the insolvency proceedings and the reports on the criminal investigations.

However, this interest in information did not mean that the plaintiff had to accept every form of use of his image – regardless of how it was obtained. The production and presentation of the image sequences was characterized by the deception of the plaintiff, which was widely emphasized by the defendant.

The plaintiff had been degraded to an object by the deception and at the same time manipulated into actively participating in ridiculing his own person. Moreover, since the content of the broadcast only marginally dealt with the insolvency and its consequences for the plaintiff, the plaintiff’s right of personality had to be given priority.

The Senate has not allowed an appeal against its ruling. Nevertheless, the judgment is not yet legally binding. An appeal against the non-admission of the appeal could be lodged with the Federal Court of Justice within one month.

Karlsruhe Higher Regional Court, Civil Senate in Freiburg, judgment of 28.11.2023, file number: 14 U 620/22

Lower court: Regional Court of Offenburg, judgment of 15.11.2022, file number: 2 O 20/21

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.