Decision by German Higher Regional Court Koblenz: Consent for Publication of Interview not Revocable

By: Dr. Thomas Nietsch and Andreas Müller

On 31 July 2024 the Higher Regional Court of Koblenz (Oberlandesgericht Koblenz) has rejected an appeal to a verdict of the Regional Court of Koblenz (Landgericht Koblenz) for deletion of an interview published on YouTube, due to lacking a prospect of success (case number 4 U 238/23).

In this lawsuit, the plaintiff requested deletion of four business-related interview videos of him with the defendant which were uploaded to YouTube in 2019 and 2020, with the plaintiff’s consent. Later in 2020, the plaintiff revoked his consent.

The Landgericht had rejected the claim considering the revocation of the consent not valid. Under the German Act on Copyright in Works of Art and Photographs (Kunsturhebergesetz – KUG) consent for publication of an individual’s likeness in media can only be revoked in exceptional cases, namely, if the individual circumstances when giving consent have materially changed. Such material reason was not asserted by plaintiff. The court expressly held that Art. 7(3) GDPR did not justify a different result on the question of consent, due to the unity of the legal regime and the lex specialis character of the KUG.

The Oberlandesgericht Koblenz has now confirmed the verdict of the Landgericht. In the context of GDPR applicability, the court also stressed that the claim for deletion is not justified because the defendant could rely on a legal basis other than consent (Art. 17(1) b) GDPR), namely, a (factual) business relationship between the parties in the meaning of Art. 6(1) b) GDPR.

Prior to the GDPR entering into force, the KUG was applied rather broadly for all types of publication, even if mainly for commercial and marketing purposes as is the case here. Since GDPR entered into force in 2018, it has been mainly argued that such application of the KUG circumventing GDPR principles was only possible for traditional media publications due to the limited scope of the opening clause in Art. 85(2) GDPR. The Koblenz courts have now contested this view and continue to apply the more favorable provisions of the KUG.