The Federal Supreme Court of Justice [Bundesgerichtshof, "BGH"] has held in a current judgment that the dissemination of secretly made photographs in a museum on an internet page is illegal and that has granted the affected museum a cease and desist claim.  

The Federal Supreme Court of Justice has decided in a current judgment in favor of the City of Mannheim as the owner of the Reiss-Engelhorn Museum and the paintings on display there and prohibited a dissemination of photographs which the operator of an internet portal secretly made in the museum, although filming and taking photographs is prohibited by signs with corresponding pictograms.  

The judgment is far-reaching and above all important to provide clarification with regard to the dissemination of secretly made films and photographs in premises which are basically open to the public (such as e.g.: hotels, hospitals, retail businesses etc.). The 1st Civil Division emphasized in the reasons for the decision that in the case of secretly procured photographs in rooms belonging to a third party, the cease and desist claim results not only from the title and the right to control entry to the rooms, but in specific cases also can be established on the basis of a contractual cease and desist claim. According to the BGH, ownership of a moveable item "includes ... the authorization to exclude other persons from access and viewing the item and to regulate such access and viewing." The right to control entry, according to the BGH, "also includes the right ... to make access legally dependent on terms and conditions, including also a prohibition on making photographs."

Therefore, any party in possession of premises which that party opens for the public (such as e.g.: hotels, hospitals, retail businesses etc.) who wants to prevent third parties from using the access to obtain photographs for inappropriate purposes, such as e.g. for critical reporting in the media, internet campaigns or similar forms of dissemination, should make it clear that making photographs is either completely prohibited or only permissible for private purposes and that any other form of dissemination is only permissible with prior express consent. Corresponding declarations, such as in the case of the Reiss-Engelhorn Museum in Mannheim, can be made part of the contract by means of pictograms or express, contractual provisions (also in general terms and conditions). There are creative and good possibilities for structuring this in practice.

(BGH, judgment dated 20 December 2018 – case no.: I ZR 104/17)

Dr. Walter Scheuerl, Attorney
Hamburg