Freedom of expression

Gustl Mollath’s image used by Sixt for promotional purposes

Having recently been released from the psychiatric hospital, Gustl Mollath is once again causing a stir. This time it concerns an advertising campaign by the German car rental company Sixt.

Without obtaining consent, the company has published a photograph of Mollath with the slogan: “If anyone is crazy, it’s Sixt with its prices”. But is that allowed?

Gustl Mollath’s image used by Sixt for promotional purposes © ferkelraggae-Fotolia

Gustl Mollath’s image used by Sixt for promotional purposes © ferkelraggae-Fotolia

Permission to use Gustl Mollath’s image

A spokesperson for Sixt, explained that there was no requirement to obtain Gustl Mollath’s consent to use his image for the campaign. The company argues that Mollath is a public person, and therefore consent to use his image is not required.

Wilde Beuger Solmecke’s media law expert Christian Solmecke explains the legal position:

“In certain circumstances a business is permitted to use images of figures of contemporary history in satirical advertising campaigns. Germany’s Federal Court of Justice (BGH) has reached judgment on three occasions permitting the non-consensual use of images of celebrities for advertising purposes. These were the cases of: Oscar Lafontaine, Prinz Ernst Augus von Hannover and Dieter Bohlen.

In Lafontaine’s case, the defendant was Sixt. The company had displayed an image of the former finance minister together with other members of the then German parliament. Lafontaine’s face had been crossed out and a slogan on the poster stated that Sixt even rented cars to employees in the probationary period.

The BGH held that the campaign was lawful as it displayed figures from current events in a satirical manner. Consequently, the advertisement could be viewed as part of public debate, which is protected by the right to freedom of expression.”

“Of course, a balance must always be drawn between the right to freely express ideas in the form of political satire and the personality rights of the person affected.

A critical point is whether the reputation of the person concerned is damaged by the advertisement. If this is the case, then the campaign is impermissible.

It is also necessary that the person depicted is not portrayed in a way which gives the impression that they identify themselves with the product.”

“In light of the recent and dramatic events concerning Gustl Mollath’s release from a psychiatric hospital, it is doubtless that he has become a figure of contemporary history, even if involuntarily.

The poster campaign makes a satirical reference to his release and does not damage his reputation. Also, the poster image does not indicate that Mollath identifies himself with the car-rental company.

Claims in which freedom of expression clashes with personality rights are always decided on a case-by-case basis. The threshold is fluid and only a court will be able to decide whether the advertising campaign in this instance is protected by the right to freedom of expression.

Nevertheless, based on the facts, one would lean towards assuming that the courts would decide in favour of Sixt.”

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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