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Case:
VI ZR 264/98 Federal Supreme Court, 6th Civil Senate
Date:
29 June 1999
Judges:
Professor Basil Markesinis, Always on the Same Path’ Essays on Foreign Law and Comparative Methodology, Hart Publishing 2001.
Copyright:
Raymond Youngs

Facts

The claimant, a representative of the House of Hannover and prince of Great Britain and Ireland, asks the defendant, a German publishing company, to refrain from publishing certain parts of a report about his divorce.

The marriage of the claimant was dissolved on the 10th September 1997 in public proceedings before the High Court of Justice in London. From the divorce papers which, according to English law, are usually available to the public and press, it appears that the claimant had admitted to having committed adultery with an unnamed woman. The English news agency Reuters reported on the divorce on the same day, giving the ground for the divorce. This news was published on the 11th September 1997 by the "Daily Mail" newspaper. On the 13th September 1997 a report about the divorce appeared in issue no 39/97 of the magazine "Das Neue" published by the defendant. The article, in which several meetings by the claimant with Princess Caroline of Monaco were mentioned and which included two photographs of these, stated (making reference to a press agency) that family judge A had given as a ground for the divorce that the German prince had committed adultery with an unnamed woman.

The claimant feels that his right of personality has been violated by the publication by the defendant of the ground for the divorce. He has applied for an order that the defendant refrain from disseminating the statement, making reference to a press agency, that he has committed adultery with an unnamed woman.

The Landgericht allowed the claim. The Oberlandesgericht rejected the defendant's appeal. In the appeal in law (which is admissible) the defendant seeks the rejection of the claim.Grounds

I.
The appeal court, applying the (German) law of the place of commission of the act, adjudges the part of the publication objected to by the claim to be unlawful and therefore, on appropriate application of §§ 823 para 1 and 1004 of the BGB, an interference by the defendant in the claimant's general right of personality from which the defendant must refrain. The mention of adultery as the ground for divorce would give the impression to the average reader that such adultery had actually taken place. This statement was highly prejudicial to the claimant. In the required balancing of the claimant's right of personality with the public's justified interest in information, the claimant's interest in the protection of his private sphere prevailed. The public's interest in the claimant, which arose in view of the fact that he was the great-grandson of the last German Kaiser (and in substance from the significance and position of his ancestors and relations) could not justify the giving of the ground for the divorce. The position did not have to be assessed differently either because of the association of the claimant with Princess Caroline of Monaco nor because the dissolution of the claimant's marriage took place at a public hearing, adultery was expressly named then as a ground for divorce, and the divorce papers could be seen by third parties under English law. (The latter point is inconsistent with the standards applying to German courts)…

II.

The judgment of the appeal court does not stand up to legal scrutiny.

1. The considerations which the appeal court uses with reference to the fundamentals of its decision are admittedly not open to objection.

a)…
b)…

c) The appeal court further thought it necessary to decide on the claim on the basis of balancing the claimant's general right of personality (protected in constitutional law in accordance with Art 2 para 1 in combination with Art 1 para 1 of the Basic Law) against the defendant's right to freedom of speech and freedom of the press (which likewise enjoys constitutional rank in accordance with Art 5 para 1 of the Basic Law) (on the requirement for such a balancing, see [references omitted]). There are no legal objections to this approach. Such a balancing cannot be dispensed with here on the ground that an interference by the defendant with the claimant's right of personality is lacking. It is true that, as stated above, a report had already lawfully been made by an English news agency and an English newspaper about the ground for the claimant's divorce. But this circumstance cannot remove from the publication of it by the defendant for the first time in Germany the character of an interference. A balancing of interests is therefore correctly considered by both parties to be required.

d) The approach of the appeal court is also to be taken as a starting point in relation to the circumstances to be included in the balancing exercise.

aa) First, the content of the statement in the defendant's news report as interpreted by the appeal court is not open to objection. Assessing the announcement that the English judge had given the claimant's adultery as the ground for the divorce as meaning that such adultery had in fact taken place, should therefore also be a basis for the appeal in law proceedings. But it is not necessary to examine the additional claim of the reply to the appeal in law that the photo accompanying the news report with the caption "Ernst August and Caroline kiss each other" had also amounted to an innuendo by the defendant that the claimant had committed adultery with Princess Caroline of Monaco. This is because the claimant does not ask the defendant to refrain from a statement to this effect.

bb) The appeal court, without any error of law, further proceeds on the basis that the claimant is affected in his private sphere by the defendant's publication. This categorisation which means that the claimant's intimate sphere (which as such would enjoy absolute protection) is not affected (references omitted) has its legal basis in the fact that the defendant's news report only announced the fact of the adultery but not details about it (references omitted).

2. However, the appeal court cannot to be followed in how it weights the circumstances to be included in the balancing exercise and in the priority it derives from this for the claimant's right of personality.

a) It was argued (to the defendant's disadvantage) that the announcement about the claimant's adultery had no actual interest for the public, even though he belonged to the German and British nobility and was the great-grandson of the last Kaiser. This is based on a legally incorrect view.

aa) In the context of this qualification, the appeal court failed to pay sufficient attention to the fact that it is not only "valuable" items of information given by the press which fall within the freedom of the press in Art 5 para 1 sentence 2 of the Basic Law. This freedom in principle also exists in favour of the tabloid and sensational press and thereby also for news which primarily satisfies the need of a more or less broad readership for superficial entertainment (references omitted).

bb) In the case in question, there is the additional fact that the claimant attracts the attention of a broad readership not only because of his ancestry but also as companion of Princess Caroline of Monaco, who is continually in the glare of publicity (reference omitted). Even if the interest of this readership may not be described as particularly valuable, contrary to the view of the appeal court the need for its satisfaction cannot be excluded from the protected area of press freedom (which is simply constitutive for the free democratic order (reference omitted)) as unjustified. Instead, it is precisely in the case of the press that the need for limiting the freedom of news reporting must be convincingly proved (reference omitted).

b) Further, much too little weight has, to the defendant's disadvantage, been given by the appeal court to the fact that the announcement about the claimant's adultery, even with the content which the court of appeal ascribes to it, involved the assertion of a true fact. Nor does the reply to the appeal in law question this. It is true that a balancing of the basic rights positions on both sides is still required in principle for a true statement (reference omitted); such a statement however must, even if it is disadvantageous for the person affected, be more readily accepted (references omitted). This is particularly the case when it does not represent an especially intensive interference with the right of personality, like the mere general announcement of a formal ground for divorce in the case in question.

c) Finally the appeal court did not sufficiently consider the fact that the news about the dissolution of the claimants' marriage, with the giving of adultery as the ground for the divorce, had been published already by the news agency Reuters and the "Daily Mail" newspaper before publication by the defendant. It had thereby become known already to a large number of persons, who could then pass it on to others. This further reduces the gravity of the defendant's interference with the claimant's private sphere to a considerable extent (reference omitted).

3. Following all this, the result of the balancing of the basic rights positions of the parties by the appeal court cannot be left to stand. As the facts to be assessed are established, a further elucidation of the matter is therefore not necessary and the senate can finally decide itself on the basis of its own balancing exercise. In this connection it reaches the conclusion, in the light of the lesser weight of the interference with the claimant's right of personality stated under no.2, as against the freedom of speech and freedom of the press claimed by the defendant, that the announcement by the defendant about the claimant's adultery as a ground for divorce does not appear to be unlawful and therefore must be accepted by the claimant. His claim must therefore be rejected.

Note: 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).

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