Germany

From Personality Rights Database

Germany

1 Personality rights in Germany – An Introduction
2 Germany: List of Cases
3 Germany: Literature list

[edit] 1 Personality rights in Germany – An Introduction

[edit] 1.1 The beginnings of personality protection

Personality rights in Germany date back to Kaiserreich, 1907. The Kunsturhebergesetz (Law on Copyright in Arts) in §22 granted rights to an individual captured in a portrait. An individual can decide on whether the picture should be published or not. The statute contains exceptions for events linked to contemporary history, public events and for the public interest.

[edit] 1.2 The impact of the constitution

After the Third Reich, Germany introduced a modern constitution, the 1949 Grundgesetz, which learned in some respects from the errors of the earlier Weimar constitution. One of the changes was that basic rights were moved to the top of the Constitution. Art. 1 (1) Grundgesetz describes human dignity as inviolable. Art. 2 (1) recognises entitlement in the development of personality. Dignitary aspects thus play a major role in the construction of personality rights. Rights guaranteeing freedom of the press were also placed well up in the hierarchy and are to be found in Art. 5 (1) Grundgesetz. By contrast with the US Constitution, the Grundgesetz accepts the necessity for content-based measures in a number of circumstances. Nazi propaganda, for example, is prohibited.

The influence of this Bonn Constitution, placing emphasis on human dignity and freedom of the press, was also felt in the general civil law. This was particularly so in the sphere of personality rights. In this context the courts have developed a rich fabric of case law.

[edit] 1.3 Bases for the protection of personality rights

Civil law has two avenues for the protection of personality rights: tort law and unjustified enrichment. Moreover, criminal law protects against libel, defamation, and the humiliation of others. Calling an individual ‘names’ is a criminal offence. Finally, criminal law protects certain secrets as well as against the recording of conversations between individuals. This is important in “hidden camera” cases.

[edit] 1.3.1 Tort law

§ 823 (1) BGB is the general tort clause of German civil law. In contrast to French law, this clause is not all encompassing but provides for extensions of subject matter included by analogy (‘semi-open’). It awards compensation for damage caused by culpable unjustified infringements to health, property or freedom. It is semi-open, since it also applies to “other rights” which are considered to be of equal importance.

In Herrenreiter, the Bundesgerichtshof accepted personality rights as ‘other rights’. A severe infringement of the dignitary interests of another can thus lead compensatory damages even if there is no actual damage. In Marlene Dietrich the court made clear that in cases where damage can be calculated by means of a fictional license, the requirement for a severe infringement does not apply. In addition, as Caroline showed, severe infringements can lead to punitive damages, something which in general torts law is not accepted.

For damages to be awarded the perpetrator has to be culpable, i.e. he has to act in state of dolus or negligence.

[edit] 1.3.2 Unjustified Enrichment

In cases of commercial appropriation, the BGH has also accepted unjustified enrichment as a basis for action, see Fuchsberger. Culpa or negligence is not necessary, but the perpetrator has to be enriched.

[edit] 1.4 Some examples

In purely dignitary or privacy cases German courts favour the individual. Volkszählung urged the regulator to protect both sensitive and non-sensitive personal data. Mephisto showed that biographies could be banned if defamatory. Whereas Lebach restricted press reporting of convicted criminals to protect the criminals’ chance to a new life after their release, Lebach2 indicated that there is no right for them to be ‘let alone’. The media could tell their story if they were not named.

In commercial cases the courts ask whether publication is purely for advertising or commercial purposes. If that is the case, then damages are due. In Fuchsberger and Herrenreiter it was made clear that false endorsement inevitably leads to damage compensation. In Nena, the BGH awarded damages for the unauthorized merchandising of memorabilia. Marlene Dietrich determined the limits: A musical about the late Marlene was accepted to be in the public sphere (freedom of arts) whereas sponsorship of cars (Fiat Marlene) to finance the musical was not and so license fees were due. In a series of cases attempts are made to draw the line between legitimate press reporting and pure commercial interest although on occasions the decisions seem arbitrary: A collector’s medal depicting Willy Brandt was thought to be reporting and thus not commercial whereas collectable “Panini” stickers of football players fell on the other side of the line. A calendar of football players was non-commercial whereas one of the Backstreet boys had to be licensed. If a publication contains considerable information it will always be considered to be non-commercial and thus free.