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Re: Future Handling of Blue Sheets

2012-04-25 02:39:14
Is it really so completely out of this world to expect the decency
to ask whether it is OK to take a photo for the purpose of _publication_?
Leaving it up to the individual subjects whether they prefer to
relocate further to the background first or prefer to temporarily
leave the room?  Especially when you believe that the vast majority
is going to provide that consent?

The folks I would have least expected to be offended by the
concept of "consent" are IETFers.


John C Klensin wrote:

<snip>
The issue with John's purpose is that he is taking a picture
of the audience(!), and if you take such a picture from the
front in a small meeting room, there might a small number of
folks end up _prominently_ in the foreground of that picture,
at which point their consent will be required.

I don't want to argue "prominently" versus "non-prominently".

There is nothing to argue about.  The exemption you'd have to
qualify for is clearly scoped (in the German §23 KunstUrhG/KUG)
to "pictures of a _public_events_ depicting (identifiable) persons"
and _not_ "pictures of persons at public events", which means that
the fewer people are predominantly shown on the picture, the
more central those people and the setting will have to be to that event
in order for the picture to still fall in scope of the
"pictures of a public_event" definition.  But this is just a
necessary prerequiste for the exemption to be in scope at all.
By itself, it is not a sufficient criteria.

The procedure how to determine whether an exemption from explicit
consent requirement for publication of a persons picture is applicable,
has been established by the german constitutional court quite a while ago.
The decision BVerfGE 35, 202 from 1973 contains a fairly comprehensive
description (paragraphs 50-53 -- sorry, all german):

   http://www.servat.unibe.ch/dfr/bv035202.html#Rn050
 
Comments of the European Court of Human Rights (ECHR) on the German Federal
court applying that principle to the exceptions in §23 KunstUrhG (KUG)
in its decisions.


  section 23(2) of the KUG gives the courts adequate opportunity to
  apply the protective provisions of section 2(1) read in conjunction with
  section 1(1) of the Basic Law ... .

  (bb) In theory the criteria established by the Federal Court of Justice
  for interpreting the concept of legitimate interest used in section 23(2)
  of the KUG are irreproachable from the point of view of constitutional law.


  [...]

  66.  In these conditions freedom of expression calls for a narrower
  interpretation (see Prisma Presse, cited above, and, by converse
  implication, Krone Verlag, cited above, § 37).

  67.  In that connection the Court also takes account of the resolution
  of the Parliamentary Assembly of the Council of Europe on the right to
  privacy, which stresses the one-sided interpretation of the right to
  freedom of expression by certain media which attempt to justify an
  infringement of the rights protected by Article 8 of the Convention
  by claiming that their readers are entitled to know everything about
  public figures (see paragraph 42 above, and Prisma Presse, cited above).


While that one particular (2005 EHCR) decision was about the 1. exemption
(public figure), the evaluation rules established by the german constitutional
court rules that a narrow interpretation applies to all exceptions alike.
  "Dabei kommt es verfassungsrechtlich nicht darauf an, bei welchem
   Tatbestandselement des § 23 KUG die Abwägung vorgenommen wird"

The final criteria established by the german constiutional court is pretty
clear, if the intended objective can be sufficiently achieved by other
means (not encroaching on a persons privacy rights), then this precludes
the exemption from voluntary consent to apply.

  "zu bewerten und zu prüfen, ob und wieweit dieses Interesse auch ohne
   eine Beeinträchtigung - oder eine so weitgehende Beeinträchtigung -
   des Persönlichkeitsschutzes befriedigt werden kann."


-Martin