BVerfGE 35, 202 Federal Constitutional Court (First Division)
05 June 1973
Professor Basil Markesinis
F. H. Lawson and B. S. Markesinis

The petitioner had participated in an armed robbery of an arsenal of the German armed forces in the course of which several soldiers on guard duty were killed or severely wounded. The culprits were arrested after a prolonged search and were convicted. The petitioner was convicted as an accessory and sentenced to six years’ imprisonment. A German television station commissioned a documentary play based on the crime, its planning, and detection and the background of the culprits, including the petitioner whose homosexual tendencies were stressed. The play showed a likeness of the petitioner and mentioned him frequently by name. The petitioner who had served two-thirds of his sentence and was soon to be released sought an injunction prohibiting the television company from broadcasting the play pending a decision on the merits of his claim that the play violated his right of personality.

The District Court of Mainz dismissed the action for an injunction on the grounds that the petitioner was ‘relatively a personality of contemporary history’ and could therefore not rely on the right to the protection of his personality. The Court of Appeal of Koblenz [reference] affirmed this decision by weighing the respective interests of an individual to be protected against the unauthorized publication of his likeness in accordance with §§ 22 and 23 of the Act on the Protection of the Copyright in Works of Art and Photographs (henceforth cited as KUG) as a projection of the right to his personality covered by Arts. 1 and 2 I, of the Constitution on the one hand and the need for objective pictorial information concerning persons in public life, which is recognized in § 23 KUG and must be interpreted in the freedom to express opinions and the liberty of broadcasting stations to provide information, protected by Art. 5 I of the Constitution on the other hand. The Court of Appeal held that in this conflict the right to provide information must prevail, especially since the trial had been concluded. The petitioner was ‘relatively a personality of contemporary history’; his interest in social reintegration had to give way to the interest of the public in general to receive a truthful account of the facts and the persons involved . . .

The German Federal Constitutional Court quashed the decisions of the two courts below on the ground that Art. 2 I in conjunction with Art. 1 I of the Constitution had been violated and issued a temporary injunction prohibiting the broadcasting of the play in question to the extent that it mentioned the petitioner by name and reproduced a likeness of him (see footnote 1).

A. . . .

B. . . .

II. For the present case the Court of Appeal has held correctly that several fundamental rights affect the application of private law and that they lead in opposite directions. The right to one’s personality guaranteed by Art. 2 I in conjunction with Art. 1 I of the Constitution conflicts with the freedom of broadcasting stations to provide information, in accordance with Art. 5 I, sentence 2 of the Constitution.




1 Lebach finds almost an exact equivalent in the decision of the California Supreme Court in Briscoe v. Reader’s Digest Association Inc., 483 P. 2d 34 (Cal. 1971). The similarity extends to the reasoning. This was in keeping with the trend that prevailed among California courts of that time to set out balancing criteria for weighing the speech interests against those of privacy. Thus, see, Gill v. Curtis Publishing Co. 239 P. 2d 630 (Cal Ct App. 1952). This trend was abandoned from the late seventies onwards, with the Californian courts increasingly adopting the arguments put forward by defendants that (a) their statements were in relation to a matter of public concern or (b) was not sufficiently “offensive” to attract the sanctions of privacy law. The third most typical defense advanced by defendants was that the disputed statement (or picture) etc. was already in the public domain. This argument received powerful support from two important decisions of the United States Supreme Court in Cox Broadcasting Corp. v. Cohen, 420 US 469 (1975) and the Florida Star v. B.J.F., 491 US 524 (1989). But in its most recent case law, California is displaying a certain swing back towards the older view of protecting privacy, for instance. by holding that excessive intrusion may become actionable even for facts which are already in the public domain. Thus, see, Schulman v. Group W. Productions 18 Cal. 4th 200 (1998); Sanders v. American Broadcasting Co. Inc., 978 P. 2d 67 (Cal. 1999). And the legislature, under the pressure of the cinema industry, has also intervened to make instances such those discussed in the German Caroline cases actionable. Thus, see: California Civil Code § 1708 8 (b), (c), (e) and (k). Even among academics, invariably strong supporters of the theology of the First Amendment, one can nowadays find calls for a more balanced approach to these issues. Thus see Gielniak, “Tipping the Scales: Courts Struggle to Strike a Balance Between the Public Disclosure of Private facts Tort and the First Amendement"”39 Santa Clara Law Rev. 1217 (1999); Chemerinsky, “Balancing the Rights of Privacy and the Press”, 67 Geo. Wash. Law Rev. 1152 (1999). For comparative lawyers, the true significance of these developments is not that they represent the dominant view in the United Sates – they do not – but that they show that much of the German thinking is (unconsciously) repeated in the United States. That must surely be a strong argument against those who – almost instinctively – dismiss Continental European material as being of little relevance to Common law courts.

The German law of privacy may well prove to be of great use to practitioners as they strive to develop the English law under the impetus of the Human Rights Act 1999. The utility of German law lies not only in its richness, but also in the careful way in which German courts have balanced on ad hoc basis the competing interests of privacy and speech. This has not led to a flood of litigation nor to any real or perceived restriction of speech rights. The development of the law in Germany is also the product of the courts and is only minimally based on the Code or statutory provisions so it is both comprehensible and transplantable into English law. Finally, the growth of German material in English means, as Lord Wilberforce recently put it, that "the argument of non-availability no longer holds". Further down in the same text Lord Wilberforce, one of England's most erudite judges, added: "The German approach shows us the way, avoiding the brutal simplicity of the First Amendment, to work out a balance between the right of free speech and the right of privacy..." These remarks come from his Foreword to Professor Basil Markesinis' Always on the Same Path. Essays on Foreign Law and Comparative Methodology, vol. II, Hart Publishing (2001), where one can find a comparative presentation of German law in chapters 7, 8, and 11. More information on such topics as the privacy of public figures can be found in Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis, Hart Publishing (1997) chapters 17, 18, and 19. The Law of privacy in England, France, Germany and Italy is also discussed (and rich further references frequently given) in chapters 1, 2, 3, 4, 5, and 7 of Protecting Privacy, (ed. by Basil S. Markesinis) OUP (1999). The cases reproduced in this site are annotated in B. S. Markesinis. The German Law of Obligations, vol. II, The Law of Torts: A Comparative Introduction, 4th edition by Hart Publishing (forthcoming in 2002).

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