Bundesgerichtshof on the "lawfulness of a press report"

The German Federal Supreme Court (Bundesgerichtshof) this week had to decide on the lawfulness of a press report about a book presentation by former news reader, journalist and author Eva Herrman (shown to the left), in particular whether this report was an infringement of Ms Herrman’s general personality right under the German constitution (case reference VI ZR 262/09 of 21 June 2011).

Eva Herrmann used to present the main news show Tagesschau on German television and is a somewhat controversial person with decisive views on various topics. While presenting her book “The Noah’s arc principle - why we have to save the family” (Das Prinzip Arche Noah - warum wir die Familie retten müssen) to journalists in 2007, Ms Herrman elaborated that traditional family values were again needed today, such as those that supported a higher regard for the role of the mother. Unfortunately, these family values had been abolished with the German student movement of 1968. She also referred to the Nazi time and said while most things had been dreadful during and Adolf Hitler had been a “totally crazy and highly dangerous politician”, the regard for families had been one of the very few good things during that time.

For those who are interested in what exactly Ms Herrman had to say, the Bundesgerichtshof’s press release includes a transcript of Ms Herrman’s actual comments as well as the wording of the press report (see here , in German).

The press report in dispute summarised Ms. Herrman’s various musings albeit in an ironic way, inter alia, referring to the fact that she was already married for the fourth time. The report also mentioned her comments on the Third Reich and ended with the words, that "thankfully" the book launch presentation ended after her comments on this topic. Ms Herrman objected to the report. She felt that its tone wrongly alluded that she was a supporter of the Nazi ideology. She further argued that the she was incorrectly quoted, which amounted to an infringement of her general personality right as protected under Articles 1(1) and 2(1) of the German constitution.

The lower courts, the Regional and Higher Regional Courts of Cologne, agreed with Ms. Herrman. The Bundesgerichtshof however agreed with the view of the defendants who had argued that Ms Herrman’s general personality right had not been infringed. In its press release of 21 June 2011 the Bundesgerichtshof clarified that the general personality right not only provides protection against being wrongly quoted (Fehlzitat), but also protects against other incorrect or falsified or distorted representations of statements. More particularly, the court stressed that the general personality right included the right to “one’s own word” and protected the individual from having statements attributed to them which have not made and which may compromise their self-defined claim to social respect (“selbst definierter sozialer Geltungsanspruch”). Upon a review of the press report in question, the court then found that Ms Herrman’s comments and theses had been correctly reflected as regards to the “choice of words, context, the thought process and general purport (Stoßrichtung)”.

The Bundesgerichtshof's press release can be found here (in German).

Merpel thinks that the court got it right and is pleased with this victory for free speech. This Kat however has some sympathy for Ms Herrman. Noone wants to be seen as having views that even remotely resemble those of the Nazi ideology and this Kat can understand why she took the matter to the courts to set the record straight.

The BGH, the "circulation" of images and a "psychogram of a murderer"

In a decision of 7 December 2010, the German Bundesgerichtshof has decided that an image archive agency which provides images from its archives to an (external) press outlet has no duty to examine the lawfulness of a final press report which uses these images as illustration, (case references: VI ZR 30/09 and VI ZR 34/09 of 7 December 2010)

What had happened? The Bundesgerichtshof's press release of 7 December 2010 tells us as follows (summary and strictly unofficial translation by the IPKat).

The defendant in the proceedings operated a commercial image archive which press and media outlets used for sourcing images. The claimant, who had been convicted for several killings and murders, has been serving a life imprisonment sentence since 1983. German media had extensively reported about the claimant's crimes in the 1950s, 1960s and early 1980s. Upon a request by German Playboy magazine, the defendant provided the magazine with one image depicting the claimant in the 1950s and two images showing the claimant in the 1960s. Playboy magazine then used the images to illustrate a feature article about the claimant under a title which roughly translates into "The file ….psychogram of one of the murderers of the century" ("Die Akte … Psychogramm eines Jahrhundertmörders").

The claimant objected to this, stating that the defendant had circulated the images without his prior consent and as such had infringed his "right to his own image" under § 22 of the German Act on the Protection of the Copyright in Works of Art and Photographs (Kunsturhebergesetz, KUG). The claimants were of the view that their actions were protected by the human of right of freedom of the press under Article 5(1)(2) German constitution.

By way of background: The so-called ‘‘right to one’s own image’’ (Recht am eigenen Bild) under § 22 KUG is a special manifestation of the general personality right, as protected by the German constitution in its Articles 1(1) and 2(1). Under § 22 KUG, an ‘‘image’’, which includes any kind of presentation that reproduces the appearance of a person, so as to be identifiable by third parties, may only be circulated in public with the consent of the person depicted. §§ 22 and 23 KUG contain detailed provisions concerning the protection of an individual’s image.

The claimant's law suits aimed at preventing the circulation of the images. The court of first instance, the Regional Court of Frankfurt, decided in favour of the defendants (case references: LG Frankfurt am Main, 2/3 O 129/07 and 2/3 O 90/07 of 17 April 2008. On appeal, the Higher Regional Court of Frankfurt, found - partly - in favour of the claimant (case references: OLG Frankfurt am Main, 11 U 22/08 and 11 U 21/08 of 23 December 2008).

Upon further appeal, the VI Civil Senate of the Bundesgerichtshof, which is, inter alia, responsible for personality right cases, has now dismissed the claims. In its decision of 7 December 2010, the Bundesgerichtshof reiterated that the exchange/provision of lawfully archived images is protected by (the human of right of) freedom of the press as protected under Article 5(1)(2) of the German constitution. Further, in accordance with established precedents, freedom of the press not only protects the distribution of news and opinions but also protects the process of preparing the process of publication, which in particular includes the gathering of information. The court took the view that this legal background had to be taken into consideration when interpreting the terms "circulating of images" as set out in § 22 KUG. A quasi "press-internal" passing on of images by an image archive could hence not be made dependant on the owner of the image archive having to assess whether or not the press publication using of the images was lawful. It was entirely the responsibility of the actual press publisher to examine whether the use of the images was in accordance with §§ 22, 23 KUG. The depicted individual, here the claimant, did not suffer any "tangible disadvantage". The quasi "press internal" passing on of images at most affected his personality rights in a negligible way.

Merpel, who is familiar with the KUG, notes that the court of appeal, the Higher Regional Court of Frankfurt, had interpreted § 22 KUG more broadly than the Bundesgerichtshof. The Higher Regional Court had held that the defendants had a duty (akin a duty of care) by which they had to examine the lawfulness of the final publication using the images, even in cases where this was "difficult" or "unusual" . While there are good arguments to support the Frankfurt court's stricter view, this Kat feels inclined to agree with the Bundesgerichtshof's approach, which appears is little closer to reality when it interprets "circulation" as an external process, with the crucial moment being once actual publication has taken place rather than the moment when an image is sourced from an archive and passed on to another press outlet. So while this decision strengthens the scope of freedom of press it also appears to confirm that interim injunctions are the instrument of choice when it comes to potential personality right infringements.

The Bundesgerichtshof's press release of 7 December 2010 can be retrieved from the court's website by clicking here, where the lovely picture of the court top left has also been taken from.

Tiger, Kate and some musings on "privacy" cases

This Kat is intrigued by the recent increase of privacy infringement cases that have made headlines in the UK. Where have they all come from all of a sudden?

Max Mosely (see earlier IPKat post here), Sienna Miller, Tiger Woods all made headlines with privacy cases. The latest of these (potential) cases concerns Kate Middleton, Prince William's girlfriend, who reportedly has instructed solicitors, after photographs taken of her playing tennis were published in Germany. Prince William, we learn from a report published in the Telegraph, was not present when the pictures were taken. Ms Middleton appears to feel that the photographers have infringed her privacy rights and she reportedly requests that the pictures be withdrawn from publication and damages be awarded from both the photographers and the distributing agency. Again according to the Telegraph, her solicitors "have issued a warning to the photographer and to ... the agency that distributed the image" under the threat of legal proceedings.

Interestingly, the German media does not appear to have picked up on this latest privacy case at all. This is a little surprising given that privacy and personality infringement cases involving royalty and celebrities are a rather frequent occurrence in German courts. (Yes, this Kat is aware that Ms Middleton is not a member of the Royal family.) The most famous of these cases involved Princess Caroline von Hannover (also known under her maiden name: Caroline of Monaco) who took a similar matter to the European Court of Human Rights and so changed the way German law deals with privacy and personality rights infringements. In the "Caroline case" (von Hannover v. Germany, application no. 59320/00 of 26 June 2004), which concerned photographs that showed Caroline von Hannover in her everyday life, and consequently engaged in activities of a purely private nature, the European Human Right Court held that

"... (the) present case does not concern the dissemination of 'ideas', but of images containing very personal or even intimate 'information' about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution."

The Princess, it was then held, had a "legitimate expectation" that her private life would be protected. The Court also considered that the photographs had been taken without her knowledge or consent and some of them were even taken in secret. The snaps also made no contribution to a debate of public interest since they and the accompanying articles only reported on her private life. As such, the Court saw a clear violation of Article 8 of the European Convention on Human Rights (right to respect for private life). This case law still stands. Returning to Ms Middleton's case, it is pretty obvious that - depending on the actual circumstances - there could certainly be an arguable case of an Article 8 infringement or breach of privacy.

But what do our readers think? Looking at this case and Tiger Woods' recent injunction in the UK (granted by high court judge Mr Justice David Eady) against the publication of details about his private life. Details, one should add, which you can still read about in the US media via the Internet. Is this the way the law should work? Of course, Tiger Woods, was marketing his public persona through sponsorship deals and very much made his outwardly happy family life part of his public image, whereas Ms Middleton is a private person who happens to be in a relationship with a member of the Royal family. So, where do we draw the line?

Does anyone think that these privacy cases could have a chilling effect on free media reporting (see here for an interesting overview published in the Times)? Should people in the public eye be able to control what is published about them or should they be protected from intrusion by the media? Does privacy protection go far enough in this country or is there need for improvement and Max Mosley's quest to revamp privacy laws (see the IPKat earlier report here) should be supported?

If you have any comments, please post them below.

BGH lifts ban on "real life horror film" Rohtenburg

From Germany comes the news that the Federal Supreme Court has lifted the ban on the 'real life horror film' Rohtenburg (decision of 26 May 2009, case reference VI ZR 191/08).

Some of our readers may recall the unsettling story of the "cannibal of Rotenburg", Armin Meiwes, who achieved international notoriety for murdering and eating a voluntary victim he had found via an internet ad (see the IPKat's report here). This cannibalistic crime was the inspiration for the film Rohtenburg which its makers had advertised as "real life horror film" and to which Mr. Meiwes took objection. The misspelling of Rotenburg as Rohtenburg was an intentional pun on the German adjective "roh" which translates into the English word "raw", as in raw meat. Mr Meiwes, who serves a life sentence for this crime, took the matter to court and stopped the imminent release of the film by means of a preliminary injunction arguing an infringment of his arguing an infringement of his general personality right as protected by the German constitution in its Articles 1(1), 2(1).

The courts of the first two instances, the Regional Court of Kassel and the Higher Regional Court of Frankfurt (case reference Az.: 14 U 146/07) agreed with the claimant and granted precedence of the constitutional protection of the personality over freedom of art. Both courts agreed that Rohtenburg, which was produced by the defendant, must not be distributed in Germany or shown in German cinemas. Both courts took the view that one can make a film about this murder and this film was protected by freedom of art. However, Rohtenburg had crossed the line, being a mere horror movie with a one sided 'monster portrayal' of the claimant and his crime, which tipped the balance in favour of the personality right. On appeal by the defendant the Bundesgerichtshof has now lifted this ban, assessing the case differently.

The Bundesgerichtshof's reasoning as set out in its press release of 26 May 2009 is translated and summarised below:

The press release starts by setting out the background of the case: the claimant has become well known as the Cannibal of Rotenburg through media reports about his crime and is currently serving a life term prison sentence for this murder. In March 2001 the claimant had killed, frozen and subsequently partly eaten a man. The defendant in the proceedings had produced a film which was based on this crime and which had been advertised as a "real life horror film". The biography and personality traits of the film's main protagonist and the storyline of the film mirror the real life crime and real life biography and personality of the claimant in almost every detail, while the claimant had secured a "comprehensive and exclusive deal" with a production company to exploit his story globally.

The press release continues by stating that the claimant was seeking a ban of the distribution and screening of the film and that his claim was successful in the lower instance court proceedings. However, on appeal by the defendant, the film producing company, the sixth civil senate of the German Federal Supreme Court has now annulled the lower court's decision.

The Federal Supreme court acknowledged that he film could heavily burden the claimant as a person because it brought the crime back to memory in a highly emotionalised way. However, after balancing the conflicting rights, the Federal Supreme Court disagreed with the Higher Regional Court of Frankfurt and gave precedence to the freedom of art and freedom of film over the protection of the claimant's human personality under the general personality right. The court further stressed that the general public had an information interest. The court went on to say that the film did not falsify or distort and did not question the claimant's claim to be respected as a human being. The film scenes did affect the claimant's particularly
protected 'core sphere' to privacy, however this information did directly refer to the crime and person committing the crime, and hence such details could be included. Furthermore, the court noted that all details of the crime had already been known to the general public, also due to the claimant's assistance. The claimant had not contended that the depiction in the film had any new or additional negative consequences for the claimant, particularly with respect to his re socialisation into society."

When comparing the Frankfurt court's earlier decision with the Federal Supreme court's view as set out in its press release, this Kat's initial 'gut' reaction is that the Federal Supreme court did get it right. Both courts, the Frankfurt court as well as the Federal Supreme Court, appear to have raised the same points but have clearly balanced freedom of art and film and the general personality rights differently (all of which are proteced as human rights under the German constitution). It appears from the press release that the Bundesgerichtshof seems to have given more weight to the fact that the claimant had sold his story to the media and that the film had not revealed anything new. It should be mentioned though that in its decision the Frankfurt court had stressed that there was a need of guidance from the Federal Supreme Court for the fairly new phenomenon of cases where a claimant had "sold his story". The press release also notably did not include any comment concerning the "one sided portrayal" of the claimant as a monster, a point the Frankfurt court had found decisive. In short: a very interesting decision and this Kat can not wait to get her hands on the full decision.

Please click here to retrieve the press release.

Post-mortem publicity rights: can you help?

The IPKat's friend Janice Trebble wonders whether the collective wisdom of the IPKat's readers is as good as legend has it.  She writes:

"I am researching the matter of post mortem personality rights. I am aware that in Germany there was a decision a couple of years ago about MARLENE DIETRICH which has effectively put a ten year limit on personality rights after the death of a celebrity. I am trying to find out how this is dealt with in other countries. 

I’d be grateful for any help that the IPKat's readers can give. I regret that there is some time pressure on this".

The IPKat says, if you can assist, please email Janice here. Since there's a holiday weekend approaching, sooner rather than later would be hugely appreciated.

More on Marlene Dietrich here
See also Guido Westkamp (Queen Mary, University of London, UK), "Post-mortem protection and domain name use", [2007] JIPLP 720, a note on In Re Kinski-Klaus.de, German Federal Court of Justice (BGH), I ZR 277/03, 5 October 2006 ("Personality rights cannot be exercised, as far as a commercial exploitation of a person's name is concerned, after 10 years from the death of the person").

Some thoughts on Max Mosley's quest to revamp privacy laws?

If you have been following Max Mosley's quest to revamp European and UK privacy laws, as this Kat has (also see earlier the IPKat posts here, here and here), then two recent interviews with Mr Mosley published in The Scotsman and in the German magazine Der Spiegel might be of interest. While the interview in The Scotsman will answer some of your legal questions, the interview in Der Spiegel gives you an insight into his motivation, which is "...to fight back".

It appears that Mr Mosley's lawyers have been quite busy 'fighting back' in Germany recently (also see IPKat post here). The Times reported in December 2008 that Mr Mosley was seeking €1.5 million from German tabloid Bild and bild.de, €350,000 from the German news agency dpa, as well from the Die Zeit newspaper - all in connection with footage of Mr Mosley in a compromising situation with uniformed ladies, and subsequent newspaper reports. The Sueddeutsche Zeitung had previously reported in October 2008 that Mr Mosley's lawyer, Ms Irion, had obtained obtained about 45 preliminary injunctions against German papers reporting on this matter.

Mr Mosley is of the view that the balance between the European Convention on Human Rights' Article 8 (right to privacy) and Article 10 (right to free expression) should be changed and that a system of "prior notification" should be introduced, under which the media must inform the subject of an exposé of an intention to publish. Mr Mosley advocates that such a 'prior notification' would give the the subject of an exposé the chance to seek an injunction to prevent publication of a potentially privacy-infringing story. In Der Spiegel he compares newspapers publishing a certain type of exposé stories with children throwing stones at frogs, with one of the frogs telling the children: "It might be a game for you, but it is a matter of life and death for us." In today's hearing at the Culture, Media and Sport committee, Mr Mosely reiterated that The News of the World newspaper article showing pictures of him at an orgy had had a "terrible, terrible" effect and had taken his "dignity"

On the legal side of this matter, The Scotsman cites Mr Mosley as saying:

"Critics say it will fetter the free press. I disagree. All I am suggesting is that if a judgment has to be made in a particular case between Article 8 and Article 10 it is better made by a judge with no vested interest in the outcome than by a tabloid editor with newspapers to sell."

When asked by The Scotsman whether he understood concerns that his envisioned changes to privacy laws might mean the end of investigative journalism, Mr Mosley is quoted as answering:

"I don't see it. The recent example of the Labour peers alleged to be offering their parliamentary services for cash is a case in point. The Sunday Times as a matter of course put the allegations to each of them for response prior to publication ...

Under the changes I envisage, the Lords might have gone to court and applied for an injunction but would not have got one. Even in a purely sexual story it would be possible for an editor to go to court ex parte to argue for exemption of the obligation to notify his target prior to publication."

While Mr Mosley's plans are certainly not without merit, this Kat wonders about the practicality of such a 'prior notification system' which involves a judge in any given case. Merpel on the other hand is of the view that the introduction of a 'prior notification system' could change the balance between privacy and freedom of expression and potentially have a chilling effect on freedom of expression.

This Kat wonders whether a legal requirement of prior notification would not imply that privacy is per se a stronger right than freedom of expression. Should it not be the media who decide what should be published? Even if the current press standards are not as high as they perhaps could be, would a prior notification on a voluntary basis not preferable? Given the important role which freedom of press has in a democracy, would it not be better to for various media groups (such as newspapers, TV, radio, electronic media, etc.) to develop their own notification codes?

What Mr Mosely apparently aims to achieve is to allow subjects of exposé stories to fight back before an often irremediable damage to their reputation has been done. And let's be honest, even if a matter has been wrongly reported and is later corrected, there is always a doubt that stays on. This Kat believes that Mr Mosley's aims could also be achieved by a voluntary media 'notification code' which the following aims: (i) alerting subjects of an exposé story to the threat of possible irremediable damage to their legitimate expectation of privacy, (ii) allowing an independent media body to address such matters as a matter of 'compliance', (iii) involving courts as a last resort, after the media body's mediation attempt is unsuccessful and/or in cases were there is clearly an actionable legal wrong.

What do our readers think?

Raw deal for film producer as OLG fleshes out its reasoning

From the industrious and observant Birgit Clark comes news of an interesting decision from Germany in the field of personality/privacy rights v freedom of art. The Higher Regional Court of Frankfurt published a press release on 9 July 2008 which tells us as follows:

"In a decision of 17 June 2008 (case reference Az.: 14 U 146/07) the Higher Regional Court of Frankfurt am Main (OLG Frankfurt am Main) confirms a ban upon the real life movie "Rohtenburg" by granting precedence of the constitutional protection of the personality over freedom of art.

The misspelling of Rothenburg as "Rohtenburg" was intentional and appeared to be a "pun" on the adjective "roh" = "raw", as in raw meat, in German.

The Frankfurt court confirmed its earlier preliminary decision of 2006 (as well as the lower court's decision) in which it ruled that the movie "Rohtenburg" was based on the real life story of the claimant, who had become known as the "Cannibal of Rothenburg" (German: "Kannibale von Rothenburg")

The movie "Rohtenburg", which was produced by the defendant, may not be distributed in Germany or shown in German cinemas. In their decision the judges refer to the claimant's personality rights. The claimant was found guilty of murdering a 43 old man, after unmanning him and eating parts of his body. The case was widely publicised worldwide: see here http://en.wikipedia.org/wiki/Armin_Meiwes.

The court decided that, even though the claimaint received a murder conviction for his actions, which the movie depicted, the claimant should not have to endure being made the object of a horror movie with a storyline that allowed the general public to clearly identify the claimant as the main "monster" protagonist.

After balancing the conflicting rights, the court gave precedence to the protection of the claimant's human personality under Articles 2(1), 1 (1) German Consitution over the freedom of art, which the defendant had invoked. Freedom of art equally is a human right under Article 5(3) of the German constitution and the ambit of freedom of art is even wider than that of freedom of speech under Article 5(1). All types of art are protected and no "judgment" concerning quality of the art should be made.

The movie was unquestionably protected by freedom of art and, in its decision, the court very carefully balanced the conflicting rights. Taking into account the seriousness of the claimant's crime, freedom of art did still not go so far that the claimant had to accept being made the object of a horror-movie. One of the main points of the case was that the movie clearly is a horror movie and "one-sidedly" just intended to shock and disgust viewers without even trying to give a complete picture of the claimant's personality. As such, the judges found that the movie's portrayal of the claimant's personality was not "balanced".

The court acknowledged the justified interest of the media of informing about the case and its details. The court also stressed the fact the claimant had, in the past, shared information about his life and motivation with the media in interviews. These points clearly did affect the legal scope of the protection of his privacy. However, on balance it did not mean that the claimant had given his consent to any possible portrayal of his persona. The claimant's right of protection of his human personality under the general personality right had not been reduced to such a level that he had to accept every kind of portrayal of his person".

Says Birgit, this case is (mostly) in line with the Federal Constitutional Court's precedents. The important message appears to be that this film did not inform but merely shock -- and did not even try, according to the court, to give a balanced, full portrayal of the clearly identifyable main protagonist. So yes, you can make a movie about this murder and this movie is protected by freedom of art. However, the movie obviously crossed the line, being a mere horror movie with a one sided "monster portrayal" of the claimant and his crime, which tipped the balance in favour of the personality right

Press release of 9 July 2008 here
Full decision here
Eating People is Wrong here