Summary of facts:
The defendant published two journals which carried reports about the claimant, Princess Caroline of Monaco, on the title and inside pages. The headlines on one title page said: "Caroline – she is bravely fighting breast cancer". On the title page of the other it said, next to a picture of the claimant, "Help for millions of women – Caroline – Battle against breast cancer". Inside it was reported that the claimant (who is not suffering from breast cancer) supported screening for detecting breast cancer. The defendant agreed in respect of the first journal to refrain from further publication and to print a retraction, and has paid 10,000 DM to the claimant. In relation to the other journal, the defendant was prevented by an interim injunction from disseminating the statement "Caroline – Battle against breast cancer".

The claimant now demands a correction making clear on the title page of the second journal that the impression given that she was suffering from breast cancer is incorrect. The claimant also claims compensation of 50,000 DM for each of the two publications – less the 10,000 DM which has already been paid.

The Landgericht granted (1) the claim to a correction (but not in the requested size of print) and (2) compensation for the title pages: 5000 DM for the first journal and 15,000 DM for the second (less the 10,000 DM already paid).

The Oberlandesgericht rejected the claimant’s and the defendant’s appeals. The claimant has lodged an appeal in law against this decision in so far as it was to her disadvantage. The defendant has lodged a cross-appeal in law. The claimant’s appeal in law was successful in relation to the higher compensation demanded; the Senate referred the case back to the appeal court for a fresh decision by the judge of fact.

Grounds:

I.
The appeal court considers the claim to a correction under §§ 823 (1) and 1004 (1) of the BGB to be well founded. According to its view there can be no serious doubt that the disseminated statement conveys to at least a substantial part of the readership the impression that the claimant had breast cancer. The claimant's general personality right was so seriously violated by the publications to which objection was made that, in spite of the corrections and the payment already made of 10,000 DM, she has a claim under §§ 823 and 847 of the BGB to compensation for distress (Schmerzensgeld). It had been grossly negligent to use such ambiguous headlines on the title pages. The intensity of the violation of the personality right was also further increased by the high circulation of the two journals. Admittedly the claimant could not demand any higher compensation for distress than the Landgericht had granted to her. A higher sum would exceed the function of settlement and satisfaction which was the determining factor for such compensation. The concepts of siphoning off the profits or criminal sanctions could not take effect in measuring the compensation for distress on a violation of a personality right.

II.
The deliberations of the appeal court on the level of the monetary compensation do not stand up to the challenges of the appeal in law. They do not do justice to the special features of the present case.

1. Admittedly the appeal court correctly assumes that the claimant can demand monetary compensation from the defendant because of the headlines on both title pages. The appeal court does not however apply the crucial legal approach in its deliberations about the amount of the claim. The claimant has suffered a severe violation of her general right of personality by these publications. Information about the state of health of a human being affects the private sphere protected by Art 1 para 1 and 2 para 1 of the Basic Law (see BVerfGE 32, 373 [379f.] = NJW 1972, 1123). That is all the more applicable, as the appeal court correctly states, for information about such a malignant and life threatening disease as breast cancer. In the judicial assessment of the facts, which does not reveal legal errors, the appeal court assumed that the potentially ambiguous formulation of the headlines on the title pages was based on a gross violation of duty by the persons responsible on the defendant's side. Besides this, the invasion of the claimant's personality right, as the appeal court also correctly recognises, acquires its special importance by the high circulation of the two journals. A violation of a right of this degree of seriousness justifies a claim by the victim to monetary compensation.

The appeal court however misses the crucial legal starting point by relating the determination of the level of this monetary compensation to the principles for the function of settlement and satisfaction developed in BGHZ 18, 149ff. = NJW 1955, 1675 = LM § 847 BGB no. 8 for the measuring of compensation for pain and suffering (Schmerzensgeld). It is true that the Bundesgerichtshof has derived the claim to monetary compensation in cases of severe violation of the right of personality in 1958 at first from an analogy to § 847 of the BGB (BGHZ 26, 349 [356] = NJW 1958 827 = LM § 847 BGB no. 12). But this basis was given up long ago. The Federal Constitutional Court saw in the so-called Soraya decision in 1973 the legal basis for such a claim to money in Arts. 1 and 2 of the Basic Law (BVerfGE 34, 269 [292] = NJW 1973, 1221). In parallel to this, the Bundesgerichtshof assumes that in a claim to monetary compensation because of a violation of the general right of personality it is not a question of compensation for pain and suffering in accordance with § 847 of the BGB but of a right which goes back to the protective function of Arts. 1 and 2 para 1 of the Basic Law (see for instance Senate NJW 1985, 1617 = LM Art. 2 GrundG no. 53 = VersR 1985, 391 [393]; BGHZ 128, 1ff. = NJW 1995, 861 [864f.] = LM H.5/1995 § 823 [Ah] BGB no. 119 = VersR 1995, 305 [309]).

The derivation of this claim from § 823 (1) of the BGB in combination with Arts. 1 and 2 of the Basic Law has consequences for the level of claim (see on this Dunz in RGRK, 12th edit. App. 1 to § 823 marginal no. 141ff.). The granting of monetary compensation in the case of a severe violation of the right of personality is based on the consideration that, without such a claim, violations of the dignity and honour of a human being would frequently remain without sanction, with the consequence that the legal protection of the personality would atrophy. In connection with this compensation, the angle of satisfaction of the victim is as a rule in the foreground - which is different from compensation for pain and suffering. Besides this, it ought also to serve prevention (see Senate BGHZ 128, 1ff. = NJW 1995, 861 = LM H.5/1995 § 823 [Ah] BGB no. 119 with further references).

This means that here the concept of settlement on which the appeal court crucially based the measuring of the monetary compensation must recede into the background in favour of the concept of prevention (see Dunz in RGRK, App. 1 to § 823 marginal no. 141ff.).

2. Further, the deliberations of the appeal court on the level of monetary compensation do not take sufficient account of the special features which shape the violation of the right of personality in this case

In the Senate judgment (BGHZ 128, 1ff. = NJW 1995, 861 = LM H. 5/1995 § 823 [Ah] BGB no. 119) - admittedly only issued afterthe announcement of the appeal court judgment - in which it was also a question of violations of the general right of personality of the claimant by publications in journals, the Senate stated that in cases of the present kind it is especially to be taken into consideration that the wrongdoer has used the violation of the personality of his victim as a means of increasing his circulation and thereby the pursuit of his own commercial interests. In this case, without a level of monetary compensation which is palpable for the defendant, the claimant would, as in the case which was then decided, be extensively exposed without protection to a relentless compulsory commercialisation of her personality. But, contrary to the view of the appeal court, monetary compensation is not "palpable" in this sense simply when, at the level at which it is granted to the claimant, it directly reduces the claimant's profit. It is only suitable for attaining the purpose of prevention required by the personality right of the victim if, by its level, it also forms a counterbalance to the fact that the right of personality has been violated here for the purpose of obtaining profit. This admittedly does not mean, as the appeal court in this respect correctly states, that the profits are to be "siphoned off"; but that - and in this respect contrary to the view of the appeal court - in the case of a relentless marketing of a personality, as is the case here, the obtaining of profits from the violation of a right is to be included as a calculation factor in the decision about the level of monetary compensation. In such cases, a genuine inhibiting effect must proceed from the level of the monetary compensation. The intensity of the violation of the personality right can be considered as a further calculation factor. Ideas on the level of compensation as expressed by the claimant in her applications do not go beyond the scope of what is to be considered as appropriate for effective prevention.

III.

The appeal court judgment was therefore to be quashed insofar as the appeal court rejected the claimant's claim to higher monetary compensation. The appeal court will therefore have the opportunity of making a new decision about the level of this claim in the light of the above considerations. The decision is primarily a matter for the judge of fact (see Senate, BGHZ 128, 1ff. = NJW 1995, 861 = LM H. 5/1995 § 823 [Ah] BGB no. 119).

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