Verdict
In the administrative litigation
xxx,
-Plaintiff-
Authorized representative:
Attorney Sven Adam,
Lange Geismarstr. 55, 37073 Göttingen
against
xxx,
-Defendant-
because of
police law
The 2nd Chamber of the Administrative Court of Meiningen, composed of the Vice President of the Administrative Court xxx, the Judge at the Administrative Court xxx and the Judge at the Administrative Court xxx, as well as the Lay Judge xxx and the Lay Judge xxx, rendered the following judgment based on the oral hearing of March 13, 2012:
I. It is determined that the immediate deletion of photos on the plaintiff's digital camera ordered by officials of the defendant in Eisenach on June 18, 2011, as well as the identification of the plaintiff's personal details carried out, was unlawful.
II. The defendant shall bear the costs of the proceedings.
III. The judgment is provisionally enforceable with respect to costs. The defendant may avert enforcement by providing security in the amount to be enforced, unless the plaintiff provides security in the same amount beforehand.
Facts of the case:
The plaintiff objects to an alleged order to delete photos on his digital camera and a subsequent identity check.
The annual convention of the German Burschenschaft (student fraternity) took place in Eisenach on June 18, 2011. A registered protest demonstration was held in opposition to this event.
In his lawsuit of June 24, 2011, the plaintiff seeks
a declaratory judgment that the immediate deletion of photos on the plaintiff's digital camera ordered by officials of the defendant in Eisenach on June 18, 2011, as well as the subsequent identification of the plaintiff, were unlawful.
At the end of the assembly, around 5:00 p.m., the plaintiff, near Uferstraße, used his digital camera to document a police action in which police officers used considerable physical force to force a woman into a dark doorway. Due to the significant physical force, the plaintiff wanted to ensure that evidence existed should the woman wish to file a criminal complaint against the police officers. Therefore, the plaintiff approached the doorway, which a resident had opened for the purpose of taking photographs. From outside, the plaintiff photographed the scene inside the dark doorway and documented the entire incident with a single photograph. The police officers noticed the plaintiff as the photographer and immediately moved toward him in a threatening manner. The plaintiff stepped back slightly but was nevertheless grabbed, pushed in the chest, and then also forced into the doorway. The plaintiff's camera lens may have been damaged in the process. Inside the doorway, the plaintiff was forced to delete the photograph from his digital camera. He was then forced to show the police officers further photographs taken in Eisenach on June 18, 2011. For each photograph in which police officers from the Erfurt Special Deployment Unit (BFE Erfurt) were recognizable, the plaintiff was again forced to delete the photos manually. The plaintiff was then asked to provide his personal details, which he gave without resistance due to intimidation. Subsequently, the plaintiff's legal representative arrived at the scene and informed the police officers that he was representing the plaintiff, demanding that they provide the legal basis for the police action and the names of the officers. The legal representative was informed that the plaintiff had taken portrait photographs of the police officers and had been forced to delete them. The plaintiff immediately denied taking these portrait photographs. When informed that the plaintiff intended to have the legality of the police officers' actions reviewed by the Administrative Court, the police officers refused to provide their names or badge numbers. After some time, a police officer named xxx, who was apparently the shift supervisor, informed the plaintiff's legal representative that the names could only be obtained from him. He stated that he belonged to the BFE Erfurt (Special Deployment Unit Erfurt) and provided his service number. A declaratory judgment action is the appropriate type of action. The police action constituted an administrative act for the purpose of averting danger. Both the order to establish personal details and the order to delete the photos were administrative acts that had become moot over time. The plaintiff has standing to sue. The establishment of personal details infringed upon the plaintiff's general freedom of action and his right to informational self-determination. The order to delete the photos violates the plaintiff's freedom of artistic expression and property rights. The plaintiff also has a legitimate interest in a declaration that the establishment of personal details was unlawful. This is in the interest of rehabilitation, as the measure had a discriminatory effect on the plaintiff. Furthermore, the plaintiff must expect a similar measure to be taken again if the factual and legal circumstances remain unchanged. The recording of his personal details could have been observed by other people in the vicinity, particularly by homeowners. The recording of the plaintiff's personal details was materially unlawful. He was not informed of the legal basis on which the personal details were recorded. The same applies to the order to delete the photos on his digital camera. In his statement of claim, the plaintiff also requested access to the case file.
The defendant requested that
the action be dismissed.
The order to delete photos from the digital camera was based on Section 12 Paragraph 1 of the Police Act (PAG). According to this provision, the police may take the necessary measures to avert a specific danger to public safety or order, unless Sections 13 to 17 of the PAG specifically regulate the police's powers. In the present case, the subjective rights and legal interests of the police officers photographed by the plaintiff were at issue. As the plaintiff's attorney stated in the statement of claim, the photographs were intended as evidence for filing a criminal complaint. Therefore, a concrete danger existed, necessitating action by the police officers to avert the danger. The request to delete the digital photos constitutes an administrative act pursuant to Section 35 of the Administrative Procedure Act (VwVfG). The deletion serves to protect the general right of personality within the meaning of Sections 22 and 23 of the Copyright Act. The police had a legitimate interest under Section 23 Paragraph 2 of the German Copyright Act (Kunsturhebergesetz) to prevent the dissemination of images in which they could be identified. A legitimate interest could be based on the not entirely remote risk to the life and health of the person depicted should the image be disseminated and published. The measure taken in this case, namely the deletion of some photos, was lawful because there was no indication that the plaintiff would refrain from publishing the photos, and thus no risk existed that deleting some images was necessary to protect the privacy rights of the police officers. The plaintiff stated in his complaint that, due to the considerable physical violence he had experienced, he wanted to ensure that evidence would be available should the person affected wish to file a criminal complaint against the police officers. It follows that the plaintiff cannot be presumed to act lawfully. According to Section 14 Paragraph 1 No. 1 of the German Police Act (PAG), the police may establish a person's identity to avert a danger. Furthermore, it was lawful for the defendants to question the plaintiff about his personal details and demand that he hand over his identification documents for inspection. These measures were necessary to ensure the peaceful conduct of the assembly. Letters from the Gotha Police Directorate dated July 27, 2011, and July 25, 2011, were attached to the statement.
In a further written submission, the defendant argued that the plaintiff's entire conduct after the initial contact, the first instruction regarding the criminal offense of publishing portrait photographs, the plaintiff's fleeing during the second contact, and the presence of several portrait photographs of police officers on the camera's storage medium, justified the prediction of a lack of law-abiding behavior. The suspicion of unlawful use of the photographs was based on the fact that, according to police experience, such photos are frequently published online. In these publications, the faces of the police officers are clearly identifiable. The images are posted anonymously on the relevant websites and cannot be attributed to any specific individual.
The plaintiff replied that he had not fled the scene by running. Rather, he had only taken a few brisk steps back.
When questioned by the court, the defendant argued that the plaintiff had voluntarily deleted the images. The arguments in the defense regarding the legality of the corresponding administrative act were merely a precautionary measure in case the court should hold a different view. Public safety also encompasses the subjective rights and legal interests of the individual (§ 54 No. 1 OBG), which includes the right to one's own image of the acting police officers. Section 33 Paragraph 1 of the German Copyright Act (Kunsturhebergesetz) criminalizes the dissemination of images. Whether a danger exists must be assessed ex ante by means of a risk prognosis; therefore, it cannot be based solely on whether there was already concrete information regarding the plaintiff's intention to publish the images. Rather, the experience of the police officers must also be considered, as the concept of danger includes a prognostic element that establishes a connection to comparable situations in the past. The plaintiff's assertion that he did not intend to publish the recordings was unconvincing. It is not even possible to determine how the plaintiff intended to contact these individuals and hand over the images.
The defendant did not submit any files because there were no official files.
The court heard evidence by questioning police officer xxx as a witness.
Reference is made to the contents of the court files.
Reasons for the Decision
1. The action is admissible. It is a declaratory judgment action pursuant to Section 113 Paragraph 1 Sentence 4 of the Code of Administrative Court Procedure (VwGO) by analogy. However, the admissibility of such a type of action for administrative acts that have already been completed before the action was filed is sometimes disputed, with some arguing that it is a declaratory judgment action pursuant to Section 43 VwGO (for the current state of the debate, see Federal Administrative Court, judgment of July 14, 1999, 6 C 7/98, BVerwGE 109, 203 = NVwZ 2000, 63; here paragraph 22 in the publication on juris). This can remain open in the present case, as in the cited decision of the Federal Administrative Court, since both the requirements for a legitimate interest in a declaratory judgment pursuant to Section 43 Paragraph 1 VwGO and the requirements of Section 113 Paragraph 1 Sentence 4 VwGO (legitimate interest) are met.
1.1. The plaintiff initially seeks a declaration that the order to delete images from his digital camera is unlawful.
In fact, according to the defendant's original extensive argumentation, it was an administrative act within the meaning of Section 35 of the Thuringian Administrative Procedure Act.
The defendant's assertion in his later written submissions that no administrative act existed because the plaintiff voluntarily deleted the images is incorrect. This is evident from the sequence of events as described by witness xxx in his statement of facts dated July 22, 2011 (enclosed with the defendant's written submission of October 22, 2011), which he also reiterated in its essential points during his testimony at the oral hearing on March 13, 2012. According to this account, the plaintiff, who had previously been informed of the criminal offense of publishing so-called portrait photographs, took photographs from outside into a building hallway during a police operation. Witness xxx then called him over. The plaintiff did not comply but ran through a backyard to Gabelsberger Street. Witness xxx and his colleague xxx chased after him, detained him, and brought him into the building entrance. The plaintiff was then asked what photos he had taken and showed the latest photos on his camera. Among them were so-called portrait photos of the witness. The plaintiff asked the witness if he should delete these photos, which the witness confirmed. The plaintiff then showed approximately 25 more photos, including eight to ten (according to the "description of facts") or five (according to the witness testimony) portrait photos of police officers. For each of these photos, the plaintiff asked the witness if he should delete it. The witness confirmed this and had the portrait photos of the other police officers deleted. The court also takes into account that Police Superintendent xxx, head of the security/access control section at the assembly, refers in his letter of July 25, 2011, to the Gotha Police Directorate, which was submitted to the defendant, to an "order for deletion... based on Section 12 Paragraph 1 of the Thuringian Police Act.".
In light of this sequence of events, the court has no doubt that witness xxx issued an order in each individual case for the deletion of specific images. He informed the plaintiff about the criminal offense of publishing photographs, asked for pictures to show him, and demanded the deletion of each image upon the plaintiff's request. Undoubtedly, the plaintiff then complied with this order voluntarily each time; however, there can be no question of him voluntarily deleting the images himself. Furthermore, this did not occur during a simple conversation, but rather after the plaintiff had been pursued by police officers for taking a photograph and taken into the hallway of the building.
However, if, according to the defendant's and the witness's accounts, an administrative act already exists, it is irrelevant that the plaintiff describes the events differently; in particular, he claims that he did not ask whether he should delete the images, but was asked to delete them without such a question.
After all this, the court is convinced that the plaintiff did not delete the images voluntarily, i.e., of his own accord without being requested to do so by the police, but merely complied immediately and voluntarily with an administrative act, so that no enforcement measures were necessary.
1.2. The administrative act to delete the images is complete, as is the order to establish personal details. Both were executed immediately upon issuance of the order.
However, the plaintiff stated during the oral proceedings that it had been possible to recover a total of five images from the SIM card of his digital camera. This does not alter the fact that the administrative act has been completed, as the ordered deletion process will be carried out, even if it could be partially reversed. The deletion from the SIM card constitutes the event that renders the matter moot.
1.3. The plaintiff's interest in a declaratory judgment within the meaning of Section 43 Paragraph 1 of the Administrative Court Procedure Act (VwGO) or the legitimate interest within the meaning of Section 113 Paragraph 1 Sentence 4 VwGO is established, as there is a risk of recurrence. The defendant has left no doubt that he considers the deletion of the images lawful. The risk that a future comparable situation will again lead to a deletion order and the recording of personal data for the same reasons is therefore substantial. Consequently, the plaintiff's interest in a declaration of unlawfulness with regard to the measure taken here remains worthy of protection even after its completion (cf. Federal Administrative Court, loc. cit., para. 23 at juris). The interest in rehabilitation to which the plaintiff referred is irrelevant.
2. The action, which is therefore admissible, is also well-founded.
2.1. The order to delete the images was unlawful. In particular, it could not be based on Section 12 Paragraph 1 of the Police Act (PAG). According to this provision, the police may take the necessary measures to avert a danger to public safety or order in a specific case. In particular, a measure within the meaning of this Paragraph 1 may be taken if it is necessary to prevent or suppress criminal offenses or administrative offenses, to eliminate conditions caused by such acts, or to avert dangers or eliminate conditions that threaten or injure the life, health, or freedom of a person, or property or animals whose preservation appears to be in the public interest (Section 12 Paragraph 2 Sentence 1 PAG).
No danger to public safety and order within the meaning of Section 12 Paragraph 1 of the Police Act (PAG) can be identified in this case. The defendant argues that the risk of a criminal offense under Sections 22, 23, and 33 of the Copyright Act had to be prevented. According to these provisions, it is a criminal offense, insofar as applicable in this case, to disseminate or publicly display images without the consent of the person depicted. The Federal Administrative Court (see above, para. 27 at juris) states the following in this regard:
"According to a view held by the Higher Administrative Courts, filming and photographing police operations is generally permissible. Sections 22 and 23 of the Copyright Act, together with the penal provision of Section 33, only cover distribution and public display, but—also in light of the prohibition of analogy under criminal law—not the creation of images. Therefore, it must be assumed that photographs deemed inadmissible under Sections 22 and 23 are not always distributed. Seizure for the protection of individuals can only be justified if there is concrete evidence that photographs are being published in violation of the provisions of the Copyright Act and in breach of the rights of police officers and/or third parties to their own image."
The Higher Administrative Court of Mannheim expressed a similar view in its judgment of July 10, 2000 (1 S 2239/99, NVwZ 2001, 1292; juris: para. 31). However, there is no concrete evidence that the plaintiff intended to publish the images. In his statement of claim, the plaintiff asserted that the purpose of the images he had taken of the witness was to provide the woman affected by the police action with the images to substantiate a potential criminal complaint. This has not been refuted. No indications of any other intentions on the part of the plaintiff are apparent. The defendant's assertion that the plaintiff's intention to provide the images to the person concerned to substantiate a potential criminal complaint proves that "the plaintiff is not presumed to act lawfully" is incomprehensible. Indeed, case law holds that under certain circumstances it could be assumed that photographs taken by press photographers are also published (see VGH Mannheim, aa 0.). However, this does not apply to private photographers. The fact that such photographs taken by police officers are frequently published online is insufficient.
In the oral proceedings, the defendant argued that simply passing such an image to this woman constituted dissemination within the meaning of Section 22 of the German Copyright Act. This is incorrect. The provision contains two alternatives: dissemination and public display. These must be distinguished from one another. The term "public display" generally means "to expose something to the view of others, to allow others to view it," or "to make it visible to others." It suffices that the viewer of the image had the opportunity to perceive it, as the term focuses on the act of making it visible (see Constitutional Court of the State of Berlin, decision of November 7, 2006, file no. 56/05, cited in juris, para. 32). Typical examples of public display include posting on posters or posting on websites. In contrast, dissemination means making the work directly accessible to a large number of people. Typical synonyms include announcements, forwarding, distribution, further dissemination, and similar actions. Dissemination occurs primarily through the press, other printed materials such as leaflets, and email. Passing on an image to a single individual for the purpose of securing evidence for a criminal complaint cannot be subsumed under any of the alternatives. The plaintiff's attorney rightly pointed out that, under such an extensive interpretation, even handing over a photograph as evidence to law enforcement authorities against the will of the person depicted would constitute impermissible "dissemination.".
Finally, the defendant's objection that measures under Section 12 Paragraph 1 of the Police Act (PAG) are also permissible to protect the general right of personality of police officers is also unfounded. In relation to the general right of personality, the provisions of Sections 22 et seq. of the Copyright Act (Kunsturhebergesetz) are lex specialis within their scope of application. Insofar as the violation of the right to one's own image, a specific legal manifestation of the general right of personality, is concerned, recourse to the general right of personality is precluded (see Higher Administrative Court of Mannheim, judgment of August 19, 2010, Case No.: 1 S 2266/09, cited according to juris, para. 38). Only in exceptional individual cases can it be considered that the mere act of taking photographs constitutes a specific infringement of the personal rights of police officers. However, as in the case before the Higher Administrative Court of Mannheim, there is no indication of such an infringement here. Furthermore, it should be noted that the protection of the police's private rights under Section 2 Paragraph 2 of the Police Act is only exceptionally limited.
Since no other legal basis is apparent for the order against the plaintiff to delete certain recordings from his digital camera, the unlawfulness of the procedure was to be established as requested.
2.2. The same applies to the determination of the plaintiff's personal details. As explained above, there was no danger within the meaning of Section 14 Paragraph 1 No. 1 of the Police Act (PAG). However, the defendant invoked this provision to justify the order. No other grounds for determining the plaintiff's personal details are apparent.
3. The decision on costs is based on Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO). The decision on provisional enforceability is based on Section 167 of the Administrative Court Procedure Act (VwGO) in conjunction with Section 708 No. 11 and Section 711 of the Code of Civil Procedure (ZPO).
The court sees no grounds to grant leave to appeal on its own initiative pursuant to Section 124a Paragraph 1 of the Administrative Court Procedure Act.
The following is information on legal remedies.
Decision
The amount in dispute is set at 5,000.00 euros.
Reasons:
The decision is based on Section 52 of the Court Costs Act (GKG), whereby the court assumed the default value in dispute.
The following is information on legal remedies.
