Personality rights are subject to various tensions. First, the influence of constitutional law concerning the importance of the freedom of speech in matters relevant to the public is of fundamental relevance. In Europe, freedom of speech is subject to restrictions just as it is in the United States, even if the First Amendment to the Constitution of 1789 appears to state the contrary. Therefore, in the law of torts/delict fundamental constitutional values have to be balanced: the freedom of expression which forms an essential element of a democratic legal order (or, if applicable, the freedom of the press, academic freedom, freedom of thought, religion, assembly, etc.) with the need to protect a person’s personality rights from infringement.
Second, the concept of personality rights needs to be discussed. One can differentiate between a dignitary (or immaterial) and a monetary concept, not only regarding the scope of protection but also the definition of the legal consequences. Third, since the middle of the 20th century, the increasing overriding influence of European human rights and—to a lesser extent—EU law is unmistakable. Fourth, personality rights, particularly as far as data protection and privacy are concerned, are currently under additional pressure because of digitalization, commercialization, genetic engineering, transplantation technology, etc. The law of personality thus faces new challenges which exceed the protection against insults that we encounter as far back as in the Twelve Tables, 450 BC.
Fifth, personality rights are quite flexible in scope. As Immanuel Kant stated, dignity, freedom of will and individual autonomy constitute the centre of the system of values and laws in modern European states. This concurs with Hegel’s idea of personality as the basis for legal capacity and the law as such. A self-determined development of a person’s personality is essentially secured by freedom of contract, of marriage, of testation, and of property. The same applies to the protection of secrets and other aspects of intellectual property law (including copyright protection and—with some limitations—the law relating to trademarks).
2. National tendencies concerning the prerequisites of personality protection
European legal systems differ considerably with regard to the conceptual structure of personality rights and the balancing of interests. Rare examples of private law statutes concerning personality rights can be found in Spain and Austria. Case law dominates in most jurisdictions.
German law provides for the protection of honour under criminal law which can also lead to claims in the law of delict (§ 823(2) Bürgerliches Gesetzbuch (BGB) read together with §§ 185 ff StGB (Criminal code)). Of further relevance are § 824 BGB on jeopardizing credit and § 826 BGB on damage inflicted intentionally and contrary to the boni mores. In case of an infringement of the right to a person’s name (§ 12 BGB), claims can arise under § 823(1) BGB. The right to one’s image was added in 1907 (§§ 22 f KunstUrhG (Act relating to the copyright for works of art)). Concerning pictures taken of historically prominent persons their consent is, exceptionally, not required (§ 23(1) no 1).
Following the enactment of the German Constitution (Basic Law, Grundgesetz, GG) of 1949, it was necessary further to develop the different ‘special’ personality rights granted in private law. While the draftsmen of the BGB had consciously excluded from their code a so-called general personality right and while the Imperial Court had also rejected recognition of a general personality right because of its lack of physical substance, the German Federal Supreme Court in the 1950s changed track and read it, via the ‘or another right’ clause into § 823(1) BGB, ie the main provision of the German law of delict (BGH 25 June 1954, BGHZ 13, 334—Leserbriefe). The general personality right is a person’s absolute subjective right concerning his personality as a whole. The Federal Supreme Court refers to it as ‘core of the personality which, in principle, is only subject to the free and responsible self-determination of the individual’ (BGH 14 February 1958, BGHZ 26, 349, 354—Herrenreiter). This ‘framework right’ (Rahmenrecht) is based on the concepts of human dignity and the free development of a person’s personality under Arts 1(1) and 2(1) GG.
The German Federal Supreme Court, even went so far as to award, contra legem, immaterial damages in cases where the gravity of the injury or of the fault require that kind of satisfaction (BGH 14 February 1958, BGHZ 26, 349; BGH 19 September 1961, BGHZ 35, 363—Ginsengwurzel; BVerfG 14 February 1973, BVerfGE 34, 269—Soraya).
The aforementioned conflict between personality rights and the freedom of expression becomes especially significant in the case of statements of relevance for the political process. This explains why the German Federal Constitutional Court developed its doctrine of the (indirect) horizontal effect of basic rights in a free speech case (BVerfG 15 January 1958, BVerfGE 7, 198—Lüth). The case dealt with a call to boycott a film produced by a Nazi film director. In the Lüth case the Court additionally stressed a broad concept of freedom of speech. It was said to be the ‘foundation of any freedom’—as in all free and democratic legal societies.
A hallmark of German law in this field is the comprehensive balancing of the opposing interests and rights. Accordingly, personality rights have to be seen in their relationship with the rights and interests of others. Among these are the freedom of speech and of the press (Art 5(1) GG), of art and science (Art 5(3) GG), of profession and property (Arts 12, 14 GG) and the general right to self-determination (Art 2(1) GG). The particulars of each individual case are always decisive and also whether the social, private or intimate sphere of the aggrieved party is affected. In the process of balancing, however, the freedom of expression has to be given specific weight (doctrine of interdependency—Wechselwirkungstheorie, since BVerfGE 7, 198, 209).
These basically non-material personality rights are neither inheritable nor otherwise transferable. They expire with the death of their bearer. However, as a specialty of German law, a post-mortem personality right protection is provided based on human dignity under Art 1(1) GG (BVerfG 24 February 1971, BVerfGE 30, 173—Mephisto). Subsequently, the German Federal Supreme Court decided in Marlene Dietrich (BGH 1 December 1999, BGHZ 143, 214) that personality rights include components with a monetary value which can be asserted by the heirs of the aggrieved person.
The French protection of personality rights is relatively strong (as it is in Italy). In contrast to German, Austrian, Italian and Dutch law, but consistent with Belgian law, French law does not recognize a general, ie all-embracing, personality law. The foundation for damages claims (including immaterial damages) is the general clause of delictual liability contained in Arts 1382 and 1383 Code civil. In case of infringements of honour, faute already results from diffamation or injure under Art 29 of the Press Act 1881.
Based on the general clause, the right to a person’s image was already recognized in 1858 (Tribunal civil de la Seine, 16 June 1858—Rachel, D. 1858, 3, 62). Additionally, Art 9 Code civil protects the private sphere in a comprehensive manner since 1970. The court may, irrespective of claims for damages, order a confiscation or take other appropriate measures in order to prevent or terminate a violation of the private sphere. Concerning the protection of a person’s image, the general public interest in being properly informed has to be considered. Reports on private and family affairs are only permissible if the information is particularly topical or important (CA Paris, 13 March 1986—Yannick Noah, D. 1986, somm., 445; TGI Nanterre, 3 June 2002—Jean-Paul Belmondo, Légipresse no 194-I, 101). Accidents, pregnancies, marriages und the death of well-known persons can generate a specific interest.
In contrast, pictorial reports on private and everyday life have been ruled to constitute a violation of the vie privée if they only satisfy the curiosity of the reader (especially photographs relating to recreational activities such as swimming, Cour de Cassation, Cass. civ. 1re, 13 April 1988, JCP 1989 II 21320).
English personality protection is shaped by the tort of defamation with its two forms of libel and slander. The former are defaming statements in a fixed or broadcasted form. They are actionable per se. In case of slander, ie verbal statements, claims are only awarded exceptionally. Since, in principle, fault is not a prerequisite for successful defamation lawsuits, the media can be exposed to far reaching liability. However, there are three main defences: justification, fair comment and, in special situations, privilege. In case of statements of fact, liability depends in the first place, on the proof of truth. In case of value judgments, ‘fair comment on a matter of public interest’ may be raised as a defence. Interlocutory injunctions are—contrary to the situation in Germany or France—traditionally only available in exceptional cases (provisional measures). There is no financial legal aid.
Traditionally, English law recognizes a large number of specific tort claims and therefore finds it difficult to provide comprehensive protection of the private sphere and of a right to one’s image. The torts of breach of confidence, nuisance, trespass, passing off, malicious falsehood and, in cases of ongoing harassment, the Harassment Act of 1997, only help in certain situations. Even the English courts themselves complain about the fragmentary nature of their law of personality protection. Because of their traditionally limited possibilities, in a legal system bound to the rule of stare decisis, to develop the law, English judges regarded themselves unable to intervene and referred to the legislature (Kaye v Robertson  FSR 62, 66). Meanwhile, the situation has profoundly changed as a result of the British implementation of the ECHR by means of the Human Rights Act of 1998. Although it is not directly applicable between citizens, courts have to decide in conformity with Arts 8 and 10 ECHR as long as there is a ‘cause of action’ (Campbell v MGN  UKHL 22, 132). This has led to an extension of the protection of confidential information. Today, the private sphere from Art 8(1) ECHR is accepted as falling under the protection of ‘breach of confidence’. This led to the Court of Appeal granting an actor’s injunction in a case where photographs of his wedding had secretly been taken (Douglas v Hello! Ltd  3 All ER 996). But a comprehensive law of privacy, as is recognized in US law, is still alien to English law.
3. National tendencies concerning the legal consequences
Similarly, the legal consequences diverge considerably in nature and scope. For claims to restore or to retain the status quo, there are the possibilities of prohibition, injunction, revocation or correction, and counter-statement. A model was established by the droit de réponse under Art 13 of the French Press Act 1881. It was transferred to other national legal systems including Germany, where, however, it is limited to statements of fact. By contrast, English law, does not have a comparable set of private law remedies. In particular, there is a considerable reluctance vis-à-vis the right to make a counter-statement in Anglo-American law (but see, Recommendation of the European Parliament and of the Council of 20 December 2006 on the protection of minors and human dignity and on the right of reply, OJ L 378, 27 December 2006, p 72). In addition, French law recognizes the possibility of publishing a judgment in the relevant media that has infringed the claimant's rights, especially in cases concerning infringements of a person's honour.
Claims for monetary compensation, widespread in Anglo-American law are gaining importance in Germany in cases of especially serious infringements of personality rights or of grave fault. German courts have always emphasized, in that regard, the purpose of compensating the victim and granting him satisfaction. In its first Caroline von Monaco judgment, however, the German Federal Supreme Court, in addition, highlighted the purpose of preventing future offences. The profit made as a result of the infringement of the personality right served as a basis for calculating the damages to be awarded (the case was about an invented interview and photos taken by paparazzi, BGH 15 November 1994, BGHZ 128, 1).
Still, the German courts refrain from granting an action for the disgorgement of benefits; this marks an important difference to the account of profits recognized in English law. In turn, it is possible even in Germany to account for material loss, eg based on an analogy to a licensing fee (BGH 8 May 1956, BGHZ 20, 345—Dahlke; BGH 26 October 2006, BGHZ 169, 340—Lafontaine). The tightening up of the legal consequences brought about by BGHZ 128, 1, intended to discipline the entertainment media, moves German law somewhat more closely to Anglo-American punitive damages, even if the awards in German law are much more modest.
The extent of pecuniary compensation thus varies considerably throughout Europe. Sometimes, damage awards in England can be very considerable (while Naomi Campbell was only awarded £3,500 for the infringement of her private sphere). In France, the award of a symbolic amount can be granted as a compensation for immaterial damages. Some legal systems also recognize the possibility of requiring the tortfeasor to pay a fine to charities (eg Switzerland Art 49(2) OR).
4. European Law
a) Law of international agreements
All 47 Member States of the Council of Europe have ratified the 1950 ECHR (human rights and fundamental rights (ChFR and ECHR)) and therefore fall under the jurisdiction of the European Court of Human Rights (ECtHR). Therefore, private life as well as the freedom of expression are protected under Arts 8 and 10 ECHR throughout Europe as well as, eg, in Russia and Turkey. The most prominent decision of the European Court of Human Rights on the protection of the private sphere in the public is von Hannover v Deutschland (ECtHR 24 June 2004, NJW 2004, 2647). Here it was held that states have a duty to ensure the protection of the private sphere also of celebrities against media intrusion. A more media-friendly judgment of the German Federal Constitutional Court (15 December 1999, BVerfGE 101, 361) was thus held to have violated Art 8 of the Convention. Concerning politicians and public office bearers, the Court is more lenient. Thus it was held that France had breached Art 10 of the Convention since a French court had interdicted the publication of the book Le Grand Secret concerning the illness of the recently deceased François Mitterand based on the violation of the doctor’s duty of confidentiality (ECtHR 18 May 2004 – Plon (Société) v France, no 58148/00).
b) EU law
Not least for reasons of the limited legislative competence, the EU has not taken any general measures to protect personality rights (as opposed to measures taken in the area of intellectual property law). At most, Directives 95/46 and 2002/58 can be mentioned concerning data protection. Although the Charter of Fundamental Rights includes the respect for private and family life, home and communication in its Art 7 as well as the freedom of expression and information in Art 11, it does not expand the Union’s competences (Art 51(2) Charter, Art 6(1) EU). Additionally, the EU recognizes the rights of personality and communication as general principles of EU law (see Art 6(2) EU). Considerable clarification is still necessary, especially in view of the traditional market orientation of the Union. Also Art 1(2)(g) Rome II Regulation (Reg 864/2007 on the law applicable to non-contractual obligations) excludes violations of privacy and rights relating to personality from the regulation’s scope.
5. Evaluation and convergence
The European legal systems balance the affected interests in the individual case. However, partly based on the influence of the ECHR, the public information interest dominates. This is because otherwise the media would not be able to fulfil its watchdog function essential for a democratic society (ECtHR (25 March 1985) – Barthold v Germany  7 EHRR 383, NJW 1985, 2885, 58). The European Court of Human Rights in this context refers to concepts developed in US case law, especially the chilling effect, ie the danger of an intimidation of free speech by an excessive protection of personality rights (ECtHR (17 December 2004) – Cumpănă and Mazăre v Romania  ECtHR 273 para 114).
Additionally, it is widely accepted that untrue statements of fact as well as distorting value judgments, which are intended to defame a person rather than render a contribution to a public debate, do not deserve any protection (for Germany, see BVerfG 13 May 1980, BVerfGE 54, 129—Kunstkritik). Apart from that, however, the borderlines are drawn very differently. England is very lenient, France much more strict.
On the other hand, intrusions into the private sphere by means of telephoto lenses and hidden microphones, the results of which are subsequently published without prior consent constitute a violation of the aggrieved person’s personality rights. Exceptions, in so far, are only possible in the case of an overwhelming public interest, eg when the published information has a historical dimension.
The assessment of photos showing public figures in public places is more difficult. English law allows the publication even of trivial information, stressing the freedom of the press, whereas in France (as well as in Italy) the protection of private life is given preference if there is no public interest involved. German law takes an intermediate position.
Nevertheless, there is an obvious convergence. Even English law has now recognized the private sphere as an object of protection. French courts, under the influence of ECHR adjudicate more leniently than before. German law has increased the protection of the private life of celebrities due to the von Hannover case, decided by the European Court of Human Rights (ECtHR) and ultimately inspired by French law (BGH 6 March 2007, BGHZ 171, 275; BVerfG 26 February 2008, GRUR 2008, 539). These developments are occurring although the ECHR formally does not have an influence comparable to that of EU law: according to Art 59(2) GG, for example, it does not enjoy a higher status than German national law.
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