Soccer games and Twitter photos of the police

11th October 2022

Author/s:
Attorney-at-law and tax consultant Dr. Dr. Bernd Josef Fehn

The occasion for this blog post is a case before the Higher Administrative Court (Oberverwaltungsgericht, OVG) of the State of North Rhine-Westphalia, which will deal with the case on 13.10.2022 (Ref. 5 A 2808/19). The case concerns a match of the Third German Soccer League in February 2017. In the context of a planned search at the guest entrance, the police had tweeted a photo of guest fans with the plaintiff in order to warn the visitors of a traffic jam at the entrance control. Due to a possible violation of fundamental rights, the female fan sued before the Administrative Court (VG) Düsseldorf, which dismissed the claim (judgment of 06.06.2019, Ref. 18 K 16606/17).

The league match had been classified as a risk match by the security authorities, as the use of prohibited pyrotechnics by both fan camps had been feared. This had been the reason for the control and security gate in dispute, where a traffic jam had formed. Allegedly due to a choreography in the club colors, which had not been registered, in rainless weather, guest fans had put on white rain capes that could not be opened and had thwarted identification by video surveillance. In addition, the operations management had suspected that prohibited pyrotechnics were to be smuggled into the stadium underneath. As a result, access had been blocked for control purposes. The fans had not complied with the police request to remove their capes. As a result, a traffic jam had formed. Some fans had threatened to storm the entrance. The police had threatened to use a water cannon. Finally, a total of 18 criminal charges had been filed, 12 against guest fans; there had been 17 cases of detention, 11 on the guest side.

The Twitter message that was attacked, with a photo showing mostly fans in capes, reads in part, "#... Congestion at guest entrance, some fans put on rain capes to prevent search." This tweet had later been deleted again. The plaintiff argued that she had been recognizable in the photo and had been approached about it several times. The action was dismissed for lack of interest in a declaratory judgment. Moreover, according to the VG, the Twitter entry was in line with the police law for the state of North Rhine-Westphalia. Finally, the plaintiff was not recognizable on the photo and an encroachment on her fundamental rights was therefore not possible, thus, the VG.

We can look forward to the decision of the OVG. In the case of demonstrations, it applies that the impression of state surveillance, intimidation, deterrence and interference with the assembly protected by fundamental rights must not arise. State officials must report factually, correctly and neutrally, restrain themselves from assemblies and not make any judgements about the legitimacy of any protest expressed therein.

Whether these standards can also be applied to the general freedom of action to attend a soccer match, however, seems rather doubtful. This is because general freedom of action does not apply without limits. It must not disturb the peaceful coexistence of people, which is why it is only guaranteed within the constitutional order, the rights of others and the moral law. The police law is part of the constitutional order. Therefore, it may be decisive whether the provisions of the Police Act were observed. For the rejection of an interest in a declaratory judgment is likely to be rather doubtful in view of a danger of repetition that can hardly be denied.

A Twitter message "#... traffic jam at the guest entrance" is hardly likely to be objectionable. However, the addition of "some fans have donned rain capes to prevent the search" is linked to a specific accusation. In connection with the photo, this refers to all persons depicted. It will have to be taken into account here that further dissemination in the digital space can take place within seconds and almost without limits. Whether or not the complaining fan can actually be recognized in the photo is a question of fact and therefore also the subject of the appeal proceedings.