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Case:
Bundesgerischtshof (Sixth Civil Division) BGHZ 128,1
Date:
15 November 1994
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mrs Irene Snook
Copyright:
University of Oxford, Institute of European and Comparative Law, and Professor B. S. Markesinis

[The defendant publishes widely distributed illustrated magazines. On the front page and inside of two of these magazines appeared a fictitious interview with the plaintiff, Princess Caroline of Monaco, along with an article containing false statements about her intentions to re-marry. The plaintiff requested that the defendant publish a full retraction and two clarifications, giving these items the same prominence as the original statements and articles. She also claimed monetary compensation for non-pecuniary damage to her right of personality. Both lower courts found in favour of the plaintiff. The defendant's further appeal was unsuccessful in principle, but the Federal Supreme Court (Bundesgerichtshof) quashed the Appeal Court's decision and referrred the case back for the following reasons]

II. The further appeals of both parties are admissible. The appeal court's decision contains no addendum restricting the admissibility of the further appeal. Nor do the reasons for the decision contain a restriction as to the further appeal's admissibility. In these reasons, the court states that the decision on the compensation for pain and suffering and the order to print certain matters on the front page of the magazine concern legal questions of fundamental importance. But this reference is not to be understood as a restriction to but rather as a reason for declaring the further appeal to be admissible. The appeal court did not pronounce as unequivocally as necessary that it intended to restrict the further appeal to the two legal questions referred to in its statement of reasons.

III. [Dealing with the defendant's further appeal]

The defendant's appeal is unsuccessful.

1. The defendant's arguments against the court order to print a retraction fail. By analogy to § 1004 of the BGB, the courts grant the person of whom untrue factual statements have been made a claim for retraction against the tortfeasor, in order to curtail a continued damage to the injured person's reputation and to end the unlawful intrusion (reference). The Court of Appeal correctly found that the plaintiff's claim satisfied these pre-requisites.

The Court of Appeal correctly held that the publication complained of continues to injure the plaintiff's person. Her right to determine her own image is impaired by fictitious statements. The untrue allegation, printed in the widely distributed magazine, according to which the plaintiff revealed to a reporter and intended for publication her reasons for refusing to give interviews, infringes her right to self-determination. In order to eradicate the continued intrusion into her personality, a retraction of the untrue statements is necessary. The defendant cannot rebut this demand with reference to the fact that more than two years have passed since publication. This time-scale is insufficient to eradicate the harmful effects for the plaintiff resulting from the false statements made in a magazine with a large circulation.

Publication only of a counter-statement from the plaintiff was insufficient to remove the intrusion. This follows from the limited protective function of such counter-statements, which aim to provide the injured party with a means of expressing her side of the story without anyone else checking the truth behind these statements. It makes no difference that the defendant added an apology to his counter-statement saying that he had made a mistake, since the statement and apology were printed in an obscure place, and in small type. The plaintiff can demand that the retraction be printed on the cover page and in the particular type size ordered by the Appeal Court.

The defendant's further appeal submits that this decision contravenes the principle of proportionality since the statements objected to appeared on the inside of the magazine. The decision also infringes the constitutionally guaranteed right to freedom of the press which allows the defendant, freely and uncensored by public authorities to decide on the make-up of cover-pages. This argument fails. The correction that the plaintiff had not, as printed, talked to the defendant's reporter serves no other purpose than - in a few factual words - to abolish, as far as still possible, the impairment to the plaintiff's personality originating in the false report.

Contrary to the arguments of the further appeal, the order to print the retraction on the front page, using a certain specified type size, is sound. It is true that the principle of proportionality requires the defendant's interests to be taken into account. By this order, he is restricted in his decision as to the outer appearance and thus the marketing of his magazine. The front page of a magazine fulfils a special function: it serves as the magazine's billboard, attracts the readers' interest, and highlights the main stories. This function of a front page should not unduly be reduced by the need to publish a retraction on it. There must be enough space left for notices on other editorial contents.

On the other hand, the publication of the retraction must be able, as far as possible, to remove the intrusion into the plaintiff's rights. Through its visual effect, the retraction must therefore be able to reach approximately the same readership as the initial statements. These readers not only comprise the purchasers of the magazines but also the "news-stand readers". The order as to the size of print must express the importance of the retraction, which must be capable of creating in the reader the same amount of interest as the false information which it countermands. This means that in all cases where an announcement illegally created a false impression on the front page, as a rule the retraction must also appear on the front page (references).

The decision appealed against follows these principles. The nucleus of the information injuring the plaintiff's legal right ... appeared on the front page so that the purpose of the retraction demands that it appear in that position, also. The Appeal Court's decision to reduce the required type size to be used for the text of the retraction, consisting only of three short sentences, leaves ample space for further headlines.

The defendant's reference to the guaranteed freedom of the press (Art. 5 (1) (2) of the Constitution - GG) must fail. The equally constitutionally guaranteed right of personality (Arts. 1 (1) and 2 (1) GG), to be safeguarded by the retraction, sets limits to the freedom of the press. In cases of conflict, both legal positions must be weighed against each other. Contrary to the opinion expressed in the defendant's further appeal, the order that the defendant publish the retraction in the manner stated does not deprive the defendant of his freedom to decide on the make-up of the front page. This freedom is only restricted in so far as this is necessary in order to protect the plaintiff's right to her personality.

[2. and 3. contain similar rebuttals of further appeal arguments in respect of another article misquoting the plaintiff and/or creating a wrong impression as to her future intentions.]

4. The further appeal also attacks the decision as to payment of compensation. This, too, must fail. According to the established case law of this court, the victim of a breach of the general right to one's personality is entitled to monetary compensation where the intrusion is grave and the impairment cannot otherwise adequately be compensated. Whether there is a grave infringement of the right of personality requiring payment of monetary compensation, depends in particular on the severity and extent of the intrusion, the occasion giving rise to the article, the infringer's motive and the degree of his culpability (references).

Infringements of the right of personality like the one before the court are grave intrusions of this kind. In full knowledge of the fact that the plaintiff refused to be interviewed, the defendant created a fictitious interview on problems in the plaintiff's private life and her psychological condition [further details]. In order to increase his circulation numbers and for commercial gain, the defendant exposed the plaintiff's private life to the curiosity and sensationalism of hundreds of thousands of readers. In respect of two of the publications in question this was done deliberately. In the case of the third publication there was at least negligence.

The claim for monetary compensation raised by the plaintiff is not barred by the fact that the defendant is also ordered to print the two corrections. Some legal authors are of the opinion that such retraction usually suffices to remove the breach of the right of personality (references). Others argue that a retraction does not in principle exclude monetary compensation, since it does not include an element of satisfaction, specially since it is the weakest means of protecting the general right of personality (references).

In the opinion of this Division, the facts of each case will determine the outcome. The decisive factor is whether or not the retraction provides a sufficient compensation for the interference with the plaintiff's rights. This can be negated where the attack is aimed at the very essence of one's personality (reference), or where the infringer refuses to print a requested retraction, so that the plaintiff can only obtain a corrective statement on the basis of a court order (reference). Thus, a retraction and correction will not exclude the plaintiff's right to monetary compensation. We are dealing here with injuries to the right of personality of a particularly grave nature given the contents of the publications, their distribution numbers, and the defendant's motives and degree of culpability. Moreover, the plaintiff had to fight for a retraction and correction by taking the defendant to court, fighting the case through all three instances before finally, and after long delays, obtaining relief.

IV. [Dealing with the plaintiff's further appeal]

The plaintiff's further appeal is unsuccessful in so far as she demands that the retraction and correction are printed in the size and type of lettering corresponding to the initial statements made on and in the magazines. But her claim for an improved monetary compensation is successful.

1. The plaintiff's further appeal alleges that the Court of Appeal, by ordering that the retraction and correction be printed in a somewhat smaller print than the initial publication, had violated the principle of "equal fighting chances". Based on her constitutionally guaranteed right of personality, the plaintiff could claim that the retraction and correction should be as noticeable to a cursory reader or passer-by as the initial article/headline.

The court cannot follow the argument that the type size must be equal to that of the original statements. As pointed out above, the decision on the placing and the size of lettering for the retraction and correction is made in view of the conflict between the general right of personality and that of press freedom. In her further appeal, the plaintiff fails to take into account the requirements of press freedom to which the defendant rightly refers.

These pre-requisites require that in order to design sales-promoting front and other pages on which he must include the retraction and correction, the defendant must still have sufficient room for other purposes. A high circulation of the magazine containing a correction or retraction on the front page is also in the interest of the plaintiff. Her interests in attracting the same degree of readers' attention for the retraction or correction as for the original untrue statements fought against by her court action can be satisfied by an announcement on the front page even when a smaller typeface is used.

2. But the plaintiff is entitled to more substantial monetary compensation than the one afforded by the Appeal Court. The plaintiff correctly argues that the Appeal Court's reasoning fails to do justice to the purpose of monetary compensation payable in the case of grave infringements of the general right to personality. In such cases, compensation is not really compensation for pain and suffering (Schmerzensgeld) under § 847 BGB but rather a legal form of redress which is based on the protective mandate enshrined in Arts. 1 and 2 (1) GG (reference).

Granting monetary compensation has its roots in the consideration that, without such a claim, impairments of a person's dignity and honour would often remain unpunished with the result that legal protection of one's personality starts to wither and decay. In contrast to compensation for pain and suffering, in cases of monetary compensation claimed for an infringement of the general right of personality, the aspect of the victim's satisfaction comes to the fore (reference). Despite doubts raised in legal literature (references), the court upholds this point of view. Moreover, this form of redress is meant also to serve a preventive purpose (references).

The Appeal Court's reasoning as to the amount of compensation due here fail to do justice to these specific purposes which relate to any claim for monetary compensation for infringment of the right of personality. According to the Appeal Court, the fact that the defendant infringed the plaintiff's right of personality for reasons of personal gain must, like the idea of prevention, be left out of consideration when the compensation due is calculated. This court, however, is of the opinion that for cases like the one before it the Appeal Court's view is too narrow.

The case is characterised by the fact that the defendant, by a deliberate tortious act, used the plaintiff's personality as means of increasing the circulation of his publications and of pursuing his own commercial interests. Without any monetary compensation that the defendant can actually feel [as unpleasant], the plaintiff would practicably be unprotected against such irresponsible compulsory commercialisation of her personality. Court orders to retract or correct will only provide an insufficient protection for the plaintiff since, as shown, they may only be ordered by taking into account the defendant's own rights arising from the guaranteed freedom of the press. An order to pay monetary compensation can only properly serve the purpose of prevention, required by the right of personality, where the amount of compensation due represents a correlation to the fact that, as here, the right of personality was infringed for reasons of personal gain.

This does not mean that in such cases of shameless commercialisation of a personality the court must resort to a "syphoning-off of profits". But the gain aimed at and reached by the tortious act should be included in the calculation when deciding on the amount of monetary compensation due. Where a famous personality is commercially exploited, the amount of monetary compensation due must act as a real deterrent. The intensity by which the right to one's own personality was injured can also be used in the calculation. In this context it must particularly be borne in mind that the publication of the fictitious exclusive interview weighs heavily against the defendant. On the other hand it must be remembered that monetary compensations due may not reach such a pinnacle that the freedom of the press in unduly restricted. This will, of course, not be the case where, as here, the press is stopped from ruthlessly and commercially exploiting a particular personality.

Since the decision on the actual amount of compensation payable to the plaintiff lies with the court dealing with the facts of the case (reference), the court quashed the Appeal Court's decision and referred the case back to the lower court.

Note:

This is one of four, recent ‘Caroline’ cases which form an important part of the developing law of privacy. The entire subject, an excellent illustration of private law developing under the influence of constitutional law, is fully discussed in B. S. Markesinis, The German Law of Obligations, vol II, The Law of Torts, 3rd ed. (1998) pp. 63 –68; 376-447; 998-1005.

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