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Case:
NJW 1996, 1128 Federal Supreme Court, Sixth Civil Senate
Date:
19 December 1995
Judges:
Professor Basil Markesinis, Always on the Same Path’ Essays on Foreign Law and Comparative Methodology , Hart Publishing 2001.
Copyright:
Raymond Youngs

Facts

In these proceedings the plaintiff, Caroline of Monaco, is objecting to the publication of certain photographs distributed in Germany and France by the defendant, the publishers of the magazines F and B. In issue no. 30 of the F magazine, dated 22 July 1993, the defendant published a total of five so-called ‘paparazzi’ photographs which show the plaintiff with the actor Vincent Lindon in a garden restaurant in S. (France). On the front page, next to a large photograph of the plaintiff (the use of which is not impugned in these proceedings) is a photograph of her, accompanied by reference to an article entitled ‘The most tender photographs of her romance with Vincent’. The series of four photographs on pages 4 and 5 is entitled ‘These photos are proof of the most tender romance of our time’. In issue no. 32, dated 5 August 1993 of the illustrated magazine B, the defendant published on page 88 a photograph of the plaintiff on horseback and on page 89 a photograph of the plaintiff with her children P. and A.; these photographs belong to an article entitled ‘Caroline: I don’t think I am the ideal wife’. In issue no 34 of the B magazine, dated 19 August 1993, the defendant published an article with several photographs entitled ‘Simple happiness’, showing the plaintiff with her daughter in a paddling boat, going for a walk alone, carrying a wicker basket, riding a bicycle, together with Vincent Lindon in a pub, with Lindon and her son P., and, finally, with another woman in the market. After a lengthy dispute over the admissibility of these publications, the defendant brought an action against the claimant before the Landgericht of Munich requesting that the Court make a declaratory judgment to the effect that the defendant need not in future abstain from publishing these photographs. By these proceedings the plaintiff, who claims that the publication of these photographs infringes her right to personal privacy, requests under German and French law that the defendant in future abstain from any further publication of the photographs. The plaintiff claims that even as an ‘absolute person of contemporary history’ she does not have to put up with the publication of photographs of herself. All of these photographs had been taken from a great distance, without her knowledge, and are said to belong to her private life. The plaintiff is constantly followed by photographers leaving her in no peace outside of her home. Even for her, there must be a protected private area outside of her own home.The Landgericht found in favour of the plaintiff as far as the distribution within France is concerned but otherwise rejected the claim. The plaintiff appealed against this decision, and the defendant cross-appealed. The Oberlandesgericht has rejected the claim. The further appeal, in so far as it was accepted, is partially successful.Reasons

III.
The reasoning of the Appeal Court is, in legal terms, partly flawed. The further appeal rightly claims that the photographs which show the plaintiff in an outdoor restaurant with Vincent Lindon fall into the sphere of her private life. Their publication infringes her right to personal privacy and is thus prohibited. The other photographs are legally unobjectionable.

A.

B.

As far as distribution of the magazines in France is concerned, contrary to the plaintiff’s contentions in this further appeal, the Court need not decide whether or not the plaintiff’s claim would succeed if French law were applied.

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 (1977) 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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