Definition and legal classification of publicity
In a legal context, publicity refers to the publication or dissemination of information, facts, or value judgments about individuals or companies to the public, particularly through media channels. While publicity is generally understood in everyday language as neutral or even positive public attention, the term has a multilayered meaning in law. In particular, it focuses on issues concerning personal rights, media law, competition law, and intellectual property law.
Legal foundations of the term publicity
Protection of personal rights
Publicity primarily concerns the general right of personality. In Germany, this right is expressly protected in Article 1(1) and Article 2(1) of the Basic Law (GG) in conjunction with the established case law of the Federal Constitutional Court.
General personal rights
The general right of personality protects every individual’s right to freely develop their personality, limits unauthorized publicity, and upholds their honor. The publication of personal data, images, or statements against the will of the person concerned may therefore constitute a violation of this right. This protection includes various aspects such as the right to one’s own image (§§ 22, 23 KUG), the right to one’s own name (§12 BGB), and the right to informational self-determination.
Protection of privacy
Privacy is a particularly protected area. The publication of private information generally requires the consent of the affected person. A balancing of interests is especially required when the publication meets a legitimate public interest, for example in the case of public figures.
Public relations and distinction from unlawful reporting
The boundary between permissible publicity and unlawful reporting is defined by the tension between freedom of expression and press (Art. 5 GG) and personal rights. Courts regularly weigh the interests involved to determine when the interest in reporting prevails and when the protection of the individual should take precedence.
Publicity in commercial and intellectual property law
The right to one’s own image and commercialization
In business, the commercial use of one’s personality, known as the “right of publicity,” is gaining importance. It describes the right of a person to independently control and license the economic exploitation of their identity—for example, name, image, voice, or other identity features.
In Germany, the right to one’s own image (§§ 22ff. KUG) is regulated by law. Without the consent of the depicted person, images may not be distributed or publicly displayed unless a legal exception applies. The right to one’s own image is thus a specific expression of the general right of personality.
In other jurisdictions, such as the USA, the right of publicity is recognized as an independent economic right. It can be inherited, sold, or licensed. In Germany, this area is mainly covered by copyright law, competition law, and the general right of personality.
Name rights and company identifiers
Company identifiers, names, and trademarks also benefit from protection under publicity law. The unauthorized use of celebrity names or trademarks in advertising or other public relations measures can give rise to claims under competition law (§§ 3, 5 UWG), copyright law, and personal rights.
Liability for violation of publicity rights
Claims for damages and injunctive relief
If the right of publicity is violated, affected persons can in particular sue for injunctive relief or claim damages. The legal bases for these claims arise from § 823(1) and (2) BGB in conjunction with the respective protective laws, the KunstUrhG, and special statutory provisions.
Claims for removal and retraction
In addition to injunctive relief and damages, affected persons can also demand the removal of unlawful publications and the retraction of false reports. The risk of further dissemination plays a crucial role in determining the scope of such claims.
Special cases: Publicity for celebrities and public figures
Public figures
For public figures, also known as persons of contemporary history, infringements of personal rights through publicity practices are particularly common. For these people, the courts assume that the public interest in reporting is often rated higher than for unknown individuals. Nevertheless, a balancing of interests is always required between the public’s right to information and the protection of the affected individual, especially with regard to the protection of intimacy and privacy.
Inheritability and duration of publicity rights
In Germany, there is uncertainty as to the extent to which publicity-related claims continue after a person’s death. The post-mortem personality right is generally recognized. It primarily serves to protect the memory of the deceased’s personality and to protect the family from defamatory or distorting portrayals.
Limits and restrictions of publicity protection in law
Freedom of the press and of expression
The right of publicity is in constant tension with press and freedom of expression. Media organizations claim the right to report on matters of public interest. Courts repeatedly refer to the principle of proportionality and weigh the conflicting interests on a case-by-case basis.
Limitations by legal provisions
Permissible publicity measures are also subject to special statutory limitations, for example the provisions of the Telemedia Act, the Interstate Broadcasting Treaty, data protection regulations (GDPR, BDSG), and competition law (UWG).
International aspects of publicity
Differences in international law
The legal treatment of publicity differs significantly between legal systems. While German law primarily treats publicity as part of personal and intellectual property rights (for example under the KUG), the publicity right in the USA is an independent, asset-based right. There has been no harmonization at the international level to date.
Applicable law and cross-border cases
Especially for internationally active media companies, the question of applicable law and international jurisdiction is crucial. Here, private international law and relevant EU regulations (such as Rome II Regulation) provide the decisive provisions.
Case law and current developments
Case law on the subject of publicity remains dynamic, especially in connection with new avenues of communication and dissemination such as social networks or influencer marketing. Courts are continually developing the criteria for the protection, commercialization, and boundaries of publicity to reflect current social and technological developments.
Summary
Publicity is a legally complex term that raises numerous issues relating to personal rights, media law, intellectual property law, and increasingly data protection. While the central focus is on protecting against the unauthorized dissemination of personal information, economic aspects, especially the right to commercialize one’s own personality, are becoming increasingly important. The assessment of permissible and impermissible publicity is generally made through a complex balancing of interests, reconciling personal rights with press freedom, legitimate public interest, and special statutory requirements. The development of case law always takes changing communication forms and the needs of those affected into account.
Frequently asked questions
What legal boundaries must be observed when publishing images of third parties?
When publishing images in which people are identifiable, the German Art Copyright Act (§ 22, § 23 KUG) and the General Data Protection Regulation (GDPR) regulate the relevant legal requirements. As a rule, the consent of the person depicted is required for any publication, unless exceptions such as overriding public interest apply or if the individuals only appear incidentally alongside a landscape or other location. Violations of these rights can result in claims for injunctive relief, damages, and, in severe cases, even criminal prosecution. For online publication, the information obligation under Art. 13 GDPR must also be observed, especially when images are published on websites or social media platforms. Children and adolescents always require the consent of their legal guardians.
To what extent can publicity infringe on rights to names or personal attributes?
The rights to names, images, voices, and other personal attributes are protected by the general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG) as well as specific provisions such as the right to a name (§ 12 BGB). Any use of these attributes in the context of advertising, reporting, or other publicity-related contexts requires either the consent of the entitled person or a legal permit. Unauthorized use can not only lead to civil claims for injunctive relief and damages, but may particularly harm the reputation of the person concerned and could also have criminal relevance.
What special considerations apply to publicity in relation to prominent personalities?
For prominent persons, a distinction is made between the so-called “absolute” and “relative” persons of contemporary history. The press and media may report on absolute persons of contemporary history (classically: well-known politicians, actors) and use their images under more relaxed conditions as long as there is a legitimate public interest in the information. However, this right ends where the private sphere predominates. Springer decisions and subsequent rulings by the Federal Constitutional Court make clear that the protection of the private sphere has priority. For advertising purposes, the right remains with the individual and remuneration is usually required.
What role does copyright play in publicity-relevant content?
All published content—texts, photos, audio, video—may be protected by copyright (§ 2 UrhG). Copyright not only protects the creator of a work from unauthorized use but also typically provides a separate right of exploitation, which must be considered in any publicity strategy. Obtaining appropriate licenses or rights transfers is essential, as otherwise extensive claims for injunctive relief and damages may arise. These rights must also be observed for works in public spaces or at events.
What legal aspects must be considered when using testimonials?
When using testimonials (e.g., customer statements, reviews, or celebrity endorsements), special duties of care must be observed. In addition to personal rights, the express, ideally written, consent of the person concerned is required. Inadequate or fabricated testimonials constitute a violation of the Act Against Unfair Competition (UWG) and may be subject to warnings by competitors or consumer organizations. For celebrities, exclusivity agreements often need to be considered and remuneration for promotional use is mandatory.
How is the right to one’s own image handled at events and in public?
Special rules apply particularly to events. Persons present in public places or at events can generally expect publication, but they must still be expressly informed of any planned image use if they are the focus of the image. For larger groups (“assemblies, parades, events”), § 23 KUG applies; however, even in these cases, individual portraits require the consent of those concerned. The GDPR also requires transparent information about the type and purpose of processing.
What claims do affected persons have in the event of unlawful publicity?
If personal rights, the right to one’s own image, name, or other protected attributes are used without the appropriate legal basis, the affected person can demand injunctive relief, removal, and—in cases of fault—damages (§ 823 BGB in conjunction with § 1004 BGB). In serious violations, there may also be a claim for compensation for pain and suffering or for monetary compensation due to the infringement of personal rights, as repeatedly confirmed by the highest courts. In public law, a right to correction may also exist or the data protection authority may be involved.
