The complainant, who is now 41, is no longer capable of earning, and still bears her maiden name. She alleged first to friends in 1973, and later in 1986 to doctors who were treating her for, amongst other things, compulsive gambling, that her father had sexually abused her. She first wrote to her father about this in March 1987, claiming he had driven her to addiction. She also told the Youth Welfare Department, in order to protect her niece who was sometimes looked after by him. In 1990 she wrote to her father to say she forgave him. But she spoke about the abuse in a television broadcast in January 1991 and in a later programme. She also offered to a magazine an article about claims for compensation for psychological harm consequent on sexual abuse. Her father demanded that she should stop accusing him to others of sexual abuse, but she refused to comply. He then started a claim for an injunction alleging he had never sexually abused her; and that the real reason for the accusations was his refusal to pay for her gambling debts. The Landgericht found that he had sexually abused her regularly from the age of eight onwards; and perhaps from the age of twelve onwards by having sexual intercourse with her. It rejected his claim, on the basis that injunctions could only be used to prevent statements injurious to honour if they were untrue. When he appealed, the Oberlandesgericht ordered her not to make statements, using his name or her name, to the effect that he had sexually abused her. It held that regardless of the truth of the statements, such an order could be made under §§ 1004 and 823 para 1 BGB because of the violation of his right of personality. He could not prevent her allegations to state or judicial authorities that he had sexually abused her where she had a justified interest in making these allegations. But he did not have to put up with being denounced by name in public.
The constitutional complaint by the complainant against this judgment was successful.
B. The constitutional complaint is well founded. The judgment of the Oberlandesgericht violates Art 5 (1) and Art 2 (1) in combination with Art 1 (1) GG.
I. These basic rights are affected by the decision which is being challenged.
1. The use of one's own name in connection with a statement comes within the protection of freedom of opinion.
The basic right of freedom of opinion protects statements of opinion of all kinds and assertions of fact as well as other forms of statement, at any rate if they are a prerequisite for the formation of opinions [references omitted]. The use of one's own name in connection with a statement is neither a form of independent statement nor a component of the statement in the narrow sense. Its content stands alone. But this does not mean that the giving of a name falls outside the protective area of the basic right. It is of substantial importance for the statement itself as well as for the individual and public process of opinion formation to which it contributes.
Freedom to state opinions is "the most direct expression of the human personality in society" (BVerfGE 7, 198 ). The name of the originator gives the connection between the person and the statement is made in a recognisable way. If the person making the statement adds his own name [to his statement], he shows that he wants to make the statement known as his personal opinion or description and is ready to vouch for it; and in the case of an assertion of facts, to be answerable personally for its truth. It is precisely in relation to those statements with which the speaker very fully identifies himself or which present his own story that the use of a name is one of the prerequisites of the communication of the sense of the statement.
Besides this the name of the person making the statement can contain messages which go beyond the simple content of the statement. Thus it is possible, for instance, that the personal description of oppressive experiences will encourage others affected to break their silence. Such a message could not be communicated in the same way without the use of one's own name and the associated disclosure of personal involvement. That applies especially if communication of certain events is subject to a taboo. Personal confession to the public can help in this case to break through the attribution of guilt often associated with social taboos.
However, the purpose of a statement is not fulfilled in making known personal views or communications. Statements are directed at others and as a rule are destined to have an effect on them in forming opinions or motivating to action. Art 5 (1) sentence 1 GG therefore does not only protect statements in the dimension of their dissemination but also in the dimension of their effect (see BVerfGE 7, 198 ). Freedom of opinion includes the right of the person making the statement to choose for his statement those forms and circumstances which ensure the greatest possible effect for it [reference omitted]. But the effect of a statement on third parties depends substantially on whether its originator is identifiable or not. Anonymous statements frequently lack that degree of authenticity and credibility that gives them the desired influence or causes a reaction.
Finally the effect of a statement is not limited to its reception and assimilation by third parties. Just as the statement will usually be connected with preceding communications, so it will in turn trigger further communications. In striving to guarantee free formation of opinions by the individual and the public Art 5 (1) GG is therefore not limited to protecting the individual statement. It also ensures the preconditions for the establishment and maintenance of the communication process in which every statement is embedded [reference omitted]. The use of a name is important for this likewise because it is only such use that makes it possible for participants in the communication process to refer to one another or make contact with each other.
2. The use of one's own name also falls into the protective area of the general right of personality arising from Art 2 (1) in combination with Art 1 (1) GG.
The name of a human being does not only have the function of creating order and differentiation. It is also the expression of identity and individuality. Therefore the individual can require the legal order to respect and protect his name. This protection has so far only become relevant in constitutional case law in relation to change of name on marriage as prescribed by the state [references omitted]. But it is also related to the wish not to use a name (which is not as such in dispute) in certain circumstances or to replace it by a pseudonym. As a name is an expression of identity and individuality it cannot be changed at will. It accompanies the life history of the person who bears it. This is recognisable as connected with [the concept of] a name. To give up the use of one's name does not therefore leave one's personality unaffected.
This also applies to the use of a name in connection with a statement. Statements do not fulfil their purpose in the passing on of a certain communication content. They are at the same time the expression of the personality of the person making the statement. By his statements he presents himself to third parties as a person. Other people identify him with them. On the basis of the use of a name third parties can not only attribute statements to their originator but also categorise him by the type of personality that they make him out to be. At the same time they get the opportunity to assess the person who stands behind the statement alongside its contents. If someone is obliged to refrain from using his name in connection with statements which he sees as personal and which he thinks it important to attribute to himself, such an obligation is to be measured against Art 2 (1) in combination with Art 1 (1) GG.
3. On the other hand, freedom of the press is not relevant. The question of the permissibility of a particular statement is to be judged in accordance with Art 5 (1) GG, independently of whether it is made or is to be made through a medium which enjoys the protection of press freedom. This will only come into play where it is something more than individual statements of opinion - where the press is important for the formation of individual and public opinion [references omitted]. That is lacking here.
4. Freedom of opinion and the right of personality have been limited by the complainant's obligation not to use her name when she speaks in public about sexual abuse by her father. The fact that the statement may incidentally be disseminated further in public does not change anything in view of the inclusion of the use of the name in the protective area of both basic rights.
II. The decision under challenge is not reconcilable with the basic right of freedom of opinion and the general right of personality.
1. Both basic rights are certainly subject to statutory limits. Freedom of opinion is, according to Art 5 (2) GG only guaranteed within the framework of the general laws, the statutory provisions for the protection of the young and the right to personal honour. Development of the personality is according to Art 2 (1) GG confined within the boundaries of the constitutional order. This is to be understood as including all legal norms that are formally and materially in harmony with the Basic Law [reference omitted]. That is the case with the provisions of §§ 823 and 1004 of the BGB on which the Oberlandesgericht based the judgment under challenge.
2. But their application does not comply with the requirements of the basic rights.
a) The interpretation and application of the civil law provisions are just as much a matter for the civil courts as the establishment of the facts and the assessment of the evidence. But if, during the course of the application of norms of civil law which are unobjectionable in constitutional law, positions protected by the basic rights are affected, the civil courts must take account of the importance and scope of the basic rights. This is to guarantee their importance in setting values at the level of application of the law as well (see BVerfGE 7, 198 [205 ff; constant case law). That requires as a rule a balancing operation, to be undertaken within the framework of the features of the statutory definition, between [two aspects of the matter]. On the one hand there is the significance in the actual case of the basic right which has been limited for the person entitled to it as well as the extent of the interference with it to which he has to submit. On the other hand there is the significance of the legal interest protected by the statute which is being applied and the severity of the interference with it by the exercise of the basic right. In this connection, the courts must have sufficient regard to both positions and bring them into a relationship that takes appropriate account of them.
There will, in particular, be a violation of a basic right which the Federal Constitutional Court has to correct if the civil court has not considered the influence of the basic right at all or has evaluated it inappropriately and the decision is based on a misunderstanding of the influence of the basic right [reference omitted].
b) In this connection, on the complainant's side it must above all be taken into account, from the point of view of freedom of opinion and the right of personality, that the statement in dispute has an accentuated relationship with the personality. The prohibition on giving of [the complainant's] name would to a large extent cause it to lose the effect hoped for in the process of communication.
This statement, which the complainant is only allowed to make in public if she does not use her name, does not relate to some subject with which she only has a distant connection, but concerns her highly personal life story. On the basis of the facts as established by the civil courts, from which the Federal Constitutional Court has to proceed, it relates to an extremely serious experience that had a decisive influence on her physical and emotional development. Every person has the freedom to decide whether he turns to others or to the public with experiences of this kind. If he decides to do so, the prohibition on describing a story of the most personal kind in a personalised form contains as a rule a drastic interference with opportunities for communication and with development of the personality.
Nothing is changed by the circumstance that the judgment under challenge does not prevent the complainant from speaking about the abuse under her own name in the context of private contacts or therapeutic treatment. This is because she is still prevented from widening the radius of those with whom she can communicate beyond the circle of her personal acquaintances or persons professionally concerned with the development of her personality. The complainant can no longer appear before the public as an identifiable person, vouch for her story with her own name and meet directly any reactions of third parties to it.
The effect of her story on persons in a similar situation or a public disturbed by the problem of sexual abuse of children is also reduced because there is a danger of the story failing to acquire the credibility and authenticity generally associated with the use of a name. The encouragement which public analysis of one's own story can have for people in a similar situation is also reduced. Likewise feedback to the complainant who wants a response is made more difficult by the prohibition on the use of her name. Furthermore she loses the opportunity to get over her past experiences with the help of third persons who have only become aware of her through the statement.
It is clear that this experience which has had a decisive effect on the complainant and which she wants to speak about publicly is indissolubly linked with the person of her father. This has to be considered; but it has to be borne in mind that the complainant is reporting about the plaintiff in the initial proceedings from the perspective of the victim of his actions. The statement cannot therefore be understood just as an exposure of the father. It must also be seen in context of overcoming her status of a victim. This victim status (which the courts have found to be a necessary starting point) would be further reinforced if the victim were to be prevented from giving an account in a personalised form. In this respect her interest in making a statement is to be rated more highly than that of third persons or of the media who want to name the persons involved when they make statements about these kinds of events.
c) On the side of the plaintiff in the initial proceedings weight must be given to his right of personality protected under the basic rights. §§ 823 and 1004 of the BGB give expression to this in civil law. It certainly does not give to the person entitled to it a claim only to be represented to the public in a manner which corresponds to his self-image or which is pleasant for him. It does however protect him against representations which distort or falsify as well as against representations which can substantially interfere with the development of his personality [reference omitted]. Personality interests must as a rule take second place to freedom of opinion if the disputed statement has as its subject facts which are to be regarded as true.
But this principle is not without exceptions. In particular true stories can injure the right of personality of the person affected if the consequences of the representation are serious for the development of the personality and the need for protection outweighs the interest in the [making the] statement. Thus the Federal Constitutional Court in the Lebach judgment (BVerfGE 35, 202 = NJW 1973, 1226) granted personality interests priority over broadcasting freedom, because the transmission of a docudrama about a sensational crime was at a point very close in time to the release of one of the perpetrators from imprisonment. The widespread impact and suggestive power of television would also have made the reintegration of the person affected into society substantially more difficult, if it did not entirely prevent it.
It is true that things are different here to the extent that it is a question not of a report by the media but by the victim. There is therefore no need to decide what the position would be if when the victim tells her story, the media expand this by their own reports from the perpetrator's background. Unlike the Lebach case, no independent danger for the plaintiff in the initial proceedings arises here from the point in time of the statement. Nor is it a question of documentation about his conduct identifying him, but merely of the possibility of a conclusion being drawn because he has the same name as the complainant.
Nevertheless, the consequences for the plaintiff in the initial proceedings are serious. This is associated with the accusation of sexual abuse of his own child, which is regarded as an especially abhorrent crime. Reports of conduct of this kind mostly lead to stigmatisation of the perpetrator. Stigmatisations [of this kind] can lead to withdrawal of social recognition and social isolation of and fundamental loss of assurance and self-devaluation by the person affected in numerous areas of his life. This is based on assessment and behaviour mechanisms which are social and therefore not solely attributable to the responsibility of the person affected. The free development of the personality is thereby permanently impeded; and this cannot be treated as due to the usual limits to development opportunities or the unfavourable reactions of others which one has to accept as the consequence of one's own decisions or forms of behaviour.
The protection which Art 2 (1) in combination with Art 1 (1) GG gives in this respect is not dependent on the statements about a person being untrue. It also applies if the statements are true and for this reason become a cause of a social exclusion and isolation. As the protection of the personality has as its goal the maintenance of the basic conditions of social relationships between the person entitled to the basic right and his environment [reference omitted] it is also independent of whether it is the victim himself or third persons who speak about the facts.
The protective effects of the general right of personality are not ruled out simply because the use of the complainant's name cannot from the outset, in her view, affect her father's rights. The protection of the personality does not only apply to the content of an assertion, but also to the consequences which the assertion has as information for others. Therefore it is a question of the information and the chances of identification which the addressees of the statement receive. The possibility that an assertion can be related to a certain person and that this person will be exposed to consequences from which the constitutional law right of personality grants protection does not therefore only exist if his name is mentioned but also if other details facilitate his identification.
On the other hand, the weight of the infringement of the basic right depends upon the breadth of the impact of the discriminatory consequences. This can work out differently according to the extent to which the person affected is known. It must further be considered whether the effects of the statement are limited because of the commonness of the name. If it is a widely used name, the effects of the statement only occur with those persons who know the speaker and his family and therefore can deduce the identity of the perpetrator from his public appearance under his own name. With a television appearance, the interference with the personality by the mention of the name decreases further, because in this case the conclusion is possible even without the mention of the name.
d) These points of view which are to be taken into account in the context of the basic rights did not sufficiently influence consideration of the matter in the Oberlandesgericht.
The Oberlandesgericht has, in harmony with the civil law case law, considered the complainant's statement to have the effect of "pillorying" the plaintiff in the initial proceedings. This would have serious consequences for the development of his personality and therefore must only be accepted if weighty reasons on the opposite side argue for the publication of the assertion in a form which permitted his identification. There is no objection to this from a constitutional point of view.
However, the Oberlandesgericht did not have sufficient regard to the reasons which argue in favour of publication using the complainant's name. Its decision raises doubt as to whether it was conscious of the fact that the use of the complainant's name in connection with her statement falls under the protection of freedom of opinion and the general right of personality. In any case the complainant's interests protected by these basic rights have not entered sufficiently into the balancing operation. The court merely touched on the subject with the comment that a denunciation of the plaintiff in the initial proceedings could not be justified by the argument that the complainant as a victim was looking after supposed general information interests about the abuse of children in society because the use of a name was not as a rule necessary for this.
In particular there is here no consideration (taking account of the requirements of Art 5 (1) GG) of the functions which use of one's name for one's statements can have and which mean that the name cannot simply be left out or replaced. Thus the court has not considered the question - which is relevant also from the point of view of the right of personality - of whether and to what extent the complainant wants to overcome the experiences of abuse by presenting them to the public as her own experiences and under her own name.
Further, it did not discuss to what extent the adding of a name is needed for statements about the abuse to acquire the character of an authentic communication for the complainant as well as for the recipient of the statement. It did not consider whether the use of a name is needed in the given situation to communicate the contents of the statement to the recipients in the desired fashion and so that they obtain the opportunity of establishing contact with the complainant. The point of view, relevant in the context of formation of public opinion, that personifying the experience of sexual abuse can help to counteract a social taboo and encourage others affected to speak and act themselves, was also left out of consideration.
The Oberlandesgericht did not carry out the necessary evaluation because it did not adequately concretise those interests which are important from the point of view of freedom of opinion and the right of personality. The court did not address the fact that the using of one's own name for one's own statements is the part of freedom of expression of opinion which is close to the personality and an obligation to refrain from doing so therefore represents an especially intensive interference. It also did not take into account that sexual abuse of children is a question substantially affecting the public so that the interest of society in being informed from the perspective of the victim about such acts and their consequences increases the weight to be given to freedom of opinion.
On the other hand the court did not address the question of how great the danger of identification was on the basis of the name in the actual case, to what extent the consequences of an identification would affect him and whether he would have any opportunity to avoid these. This is relevant to the severity of the interference with those interests of the plaintiff in the initial proceedings which are protected by the basic rights.
e) The judgment under challenge is founded on these defects. The Oberlandesgericht gave priority to protecting the plaintiff in the initial proceedings from social stigmatisation because it did not make a sufficient determination of the protected interests of the complainant and therefore did not adequately consider her basic right position. It cannot therefore be excluded that the court, if it had considered the requirements of the basic rights, would have made a decision which was more in the complainant's favour.
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).
This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.