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Case:
BVerfG 1 BvR 565/06
Date:
13 June 2006
Translated by:
Raymond Youngs
Copyright:
Professor Sir Basil Markesinis

Reasons:

1
The constitutional complaint relates to questions of protection of the personality against the reporting of a traffic infringement which included a photo of the person concerned.

I.

2
1. The defendant, in a daily paper which it published, included the announcement that the complainant had been given a fine and a driving ban of a month by a French court because he had substantially exceeded the speed limit imposed on French motorways. A picture of the complainant, which was neutral as to its context, was added to the report.

3
The complainant’s claim for an injunction, which was successful at first instance, was rejected by the judgment of the Kammergericht (reference omitted). This was confirmed by the Bundesgerichtshof in its judgment on the appeal in law (reference omitted). A report about regulatory offences (Ordnungswidrigkeiten) or crimes of a minor or medium nature identifying the perpetrator by naming or giving a picture of him was not simply excluded. It could be considered when the type of act, or the person and position of the perpetrator, gave grounds for special interest in the information. Such an interest arose here from the complainant’s act. The subject-matter of the report was a substantial exceeding of the speed limit on a motorway, and therefore a blatant disregard for existing rules, which had also had substantial potential for causing danger. The press were entitled to inform the public about such irresponsible forms of behaviour. The appeal court had also correctly taken into account the complainant’s origin and status, and the fact that he had attracted substantial interest because of his past behaviour in public. The appeal court has established on this subject that the complainant had already become a focus for reporting in the media on a number of occasions because of his activities and other aberrant behaviour. He had also, in his capacity as a distinguished member of an important aristocratic family, made a sensational claim to restitution of confiscated assets in the territory of the former German Democratic Republic. In addition, the complainant’s prominent wife was continually in the glare of publicity. The public’s substantial interest in information which followed from this, which was for instance demonstrated by the fact that reaction to the incident had not been confined to the tabloid press, was not countered by any decisive interest on the part of complainant. The report was at worst troublesome or embarassing for him, but had not resulted in substantial distress, stigmatisation or exclusion.

4
In these circumstances there was also no objection to publication of a photograph of the complainant. The publication of a photo of the claimant (who was in any case widely known) which was neutral as to its context did not cause any harmful effect which was separate from a report which identified him.

5
Nor did consideration of the decision of the European Court of Human Rights (ECtHR) on the 24th June 2004 in the complaint proceedings 59320/00 [von Hannover v Germany] (reference omitted) lead to any decision more favourable to the complainant. According to this case law it was necessary to distinguish between perceptions of the function of the press as (a) reporting which makes a contribution to a discussion of general interest to society and (b) providing details of the private lives of individuals which only satisfies the public’s curiosity. By this standard a report about crimes or regulatory offences committed by an identified person could be entirely appropriate for stimulating a discussion about questions of general interest. It could also be the subject-matter of a discussion here in a democratic society that a person known to the public had ignored rules in a blatant way.

6
2. The complainant objects primarily to a violation of his general right of personality under Art 2 para 1 in combination with Art 1 para 1 of the Basic Law by the decisions under challenge. The mention of a name, a picture or other identification of the perpetrator in a report about crimes ought, except in the case of serious and sensational acts, at the most only to be considered where the perpetrator had a special relationship to the subject-matter of the criminal charge, for instance because of his professional activities. It does not satisfy the standards established in the case law of the European Court of Human Rights for the interpretation of the guarantees in Arts 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) to justify a report about an event in the complainant’s private life by reference to the complainant’s fame despite the fact that he had never sought media publicity on his own initiative.

II.

7
The complaint has no fundamental signficance in the sense of ¿¿ 93 a para 2 letter a of the Federal Constitutional Court Act (BVerfGG). Nor is acceptance of the complaint indicated by ¿¿ 93 a para 2 letter b of the Federal Constitutional Court Act. The complaint in the matter has no prospect of success.

8
The decisions under challenge do not violate the complainant’s right of personality guaranteed by Art 2 para 1 in combination with Art 1 para 1 of the Basic Law.

9
The rejection of the claim to an injunction is based on an application of ordinary law by the specialist courts. This is only examined by the Federal Constitutional Court to see whether the courts have determined the meaning and scope of the basic rights affected by their decision incorrectly or incompletely, or assessed their importance inaccurately (references omitted). Accordingly there is no objection to the decisions under challenge.

10
1. The courts have considered that a report about a crime or regulatory offence giving a name, picture or description of the perpetrator can represent a substantial infringement of the perpetrator’s right of personality because his aberrant behaviour is made known publicly and he is denigrated in the eyes of the public (reference omitted). The claim to protection of the right of personality in respect of a report about the imposition on the person affected of a punishment or fine does not only apply where the report has stigmatising effects and threatens that person with social isolation. Even a report about lesser misdemeanours is apt to reduce the social standing of the person affected and can therefore infringe his right of personality.

11
2. However, in carrying out the balancing exercise between the interest in information in a report about crimes or similar misdemeanours and the interests covered by protection of the personality, the interest in information in general deserves priority for current reporting (reference omitted). Any infringement of the right of personality must admittedly have a reasonable relationship to the seriousness of the aberrant behaviour and its significance in other respects for the public. There is no objection in constitutional law to the specialist courts assuming that an interest which is in itself trivial on the part of the public in information about slight misdemeanours can be offset by special features of, for instance, the perpetrator’s personality or the course of events (reference omitted). For the weighting it can also be significant here whether the subject-matter of the report is investigatory proceedings which are still current, so that the presumption of innocence which operates in favour of the person affected, and which follows from the principle of the constitutional state and is recognised in Art 6 para 2 of the ECHR, must be considered (reference omitted). The claim of the person affected to be spared from reliving his misdemeanour gains in importance as the distance in time from the crime and the criminal proceedings grows (reference omitted; see also ECtHR, decision of the 25 May 2004, App no 57597/00, ¿¿sterreichischer Rundfunk v Austria). It must also be borne in mind that it does not follow from the mere fact of the prominence or public fame of the person affected that the public has an interest worthy of normative protection in comprehensive information about his behaviour (reference omitted). An important issue for the balancing exercise will also be the extent to which a report only satisfies the curiosity of the public or to which it also makes a contribution to questions which are of substantial concern to the public with regard to forming public opinion which is important for democracy (reference omitted).

12
The decisions under challenge are not open to objection in constitutional law according to these standards. Their subject-matter was a current report about a conviction of the complainant. Neither the presumption of innocence nor the complainant’s claim to protection from reliving a misdemeanour from the distant past is affected. There is equally no objection in constitutional law to the fact that the courts have attached an intrinsic information value for the public to the complainant’s conviction by a French court for a substantial road traffic misdemeanour. The courts were permitted here to reach the assessment that an especially blatant road traffic violation had occurred, and to include in the balancing exercise the fact that such behaviour caused danger to others in the abstract sense. The courts have, on the basis of considerations to which there is no objection, concluded that mention can be made of the complainant’s name essentially from the fact that the complainant had already on several occasions attracted media publicity by his own aberrant conduct. There is also no objection on constitutional law grounds to taking into account the fact that the complainant occupies a prominent position in society because he belongs to an important aristocratic family. It is therefore equally understandable that the Bundesgerichtshof has seen in the content of the report under attack, regardless of its external presentation as something more in the nature of entertainment, a tangible contribution to the discussion of questions of importance to the public. It is not in any sense a remote consideration that an objective debate, for instance about questions of traffic safety or reasonable behaviour in road traffic, can be stimulated by a report which deals with a serious traffic violation of a person known to the public.

13
Having regard to the complainant’s fame, there is also no objection here to the fact that the courts have deduced no further significant violation from the addition of a photograph of the complainant. Whether a report, or the pictorial report accompanying it, causes serious invasions of the right of personality is a question for assessment on the basis of the individual case (reference omitted). If, by use of a photograph, which is neutral as to its context, of a personality from public life whose appearance is widely known already, this person is merely brought to the public’s attention again, this is of significantly less weight than publication of photographs which for instance give additional information about the behaviour or habits of the person affected or have been taken out of their context (reference omitted).

14
No decision is necessary as to the prerequisites subject to and the manner in which a complainant can claim in constitutional complaint proceedings that the domestic courts have deviated from case law of the European Court of Human Rights (ECtHR) on the interpretation of the guarantees in the ECHR (reference omitted). There is no evidence of such a deviation. The decision of the ECtHR of the 24th June 2004 (App no 59320/00, von Hannover v Germany — reference omitted) related to publication of the details of the private life of a prominent person by the mass media. In the view of the ECtHR no contribution of any kind to a public discussion about a question of general interest arose from it (see ibid at no 60).

15
As has already been shown in the judgment of the Bundesgerichtshof on the appeal in law which is under challenge, the function of the press as a ¿¿¿public watchdog¿¿¿, which is important according to the case law of the ECtHR (see ECtHR, 17th December 2004, App no 49017/99, Pedersen and Baardsgaard v Denmark, at no 71; ECtHR 24th February 1997, App no 19983/92, De Haes and Gijsels v Belgium, at no 37), can also be affected because the report is about a misdemeanour without any closer relationship to political life (see most recently ECtHR, 25th April 2006, App no 77551/01, Dammann v Switzerland, at no 54; ECtHR, 24th November 2005, App no 53886/00, Tourancheau and July v France, at no 66). The freedom guaranteed by Art 10 of the ECHR of passing on information can admittedly take second place when balancing it against the personality interest, if a report of a court hearing makes no contribution at all to an objective debate of general interest to the public (see ECtHR, 24th November 2005, App no 53886/00, Tourancheau and July v France, at no 74). However, if the Bundesgerichtshof here has seen a possible stimulus for such an objective debate in a report about the complainant’s misdemeanour which identifies him, it is not evident that it is based on defective considerations.

16
No further reasoning is given, in accordance with ¿¿ 93d para 1 sentence 3 of the Federal Constitutional Court Act.

17
The decision is unchallengeable.