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Case:
BGH NJW 1994, 124 VI. Civil Senate (VI ZR 23/93)
Date:
12 October 1993
Judges:
Professor Basil Markesinis
Copyright:
Raymond Youngs, Senior Research Fellow at the Institute of Global Law

Summary of facts:

The claimant is the chairman of the board of Hoechst AG. The defendant represents Greenpeace in Germany. Hoechst produces fully halogenated chlorofluorcarbons (CFCs), which apparently contribute significantly to reduction of the ozone layer and global warming. After discussions between Hoechst AG and the defendant, the claimant told the press that Hoechst AG would stop production of fully halogenated CFCs. It would reduce production by at least 25% by 1990, 50% by 1992/3 and completely by 1995. In May 1990 Hoechst AG and Kali Chemie AG agreed with the Federal Minister for the Environment, Nature Protection and Reactor Safety to reduce production of these CFCs by at least 30% in 1991, 50% in 1993, and entirely in 1995. In a statement to the media in June 1990, the defendant described the measures announced as "playing with names", because in the long term there would be equally destructive effects from the planned replacement materials (partly halogenated CFCs and fluorocarbons). He also announced a poster campaign. The large posters showed the chairmen of the boards of Hoechst AG and Kali Chemie AG, because it was "time that those personally responsible for the further destruction of the ozone layer and world climate as 'persons of contemporary history' step out of the shadow of their supervisory boards, boards of directors and firms' identities and come clean". The poster was designed by the graphic artist Klaus Staeck and showed pictures of the chairmen approximately 50 by 70 cm under the eyecatching caption "Everyone is talking about climate - we ruin it". Under the claimant's picture were the words "Prof Dr Wolfgang Hilger, Hoechst AG", and something similar under the picture of the chairman of the board of Kali Chemie. Underneath it says: "The absolute apex in destruction of ozone and the greenhouse effect: responsible for the German production of the ozone and climate killer CFC. Telephone: Hoechst AG 069/3050, Kali Chemie 0511/8570". Underneath this it says: "Information from Greenpeace".

The claimant considered that his right to his own picture and his personality right were violated by the defendant's posters. He claimed an injunction to stop publication of the poster insofar as it showed his picture and name. The defendant claimed to be contributing to the debate on environmental policy, which was justified by his right to free expression of opinion in Art 5 para 1 of the Basic Law and the poster was a typical example of political art falling Art 5 para 3 of the Basic Law. The Landgericht rejected the claim but the Oberlandesgericht upheld it. The defendant's appeal in law was successful.

Grounds:...

II. These considerations do not stand up to examination in the end result.

1. Admittedly the starting point of the appeal court's legal considerations is correct.

a) In so far as the claimant opposes the publication of his picture, his request is based on § 22 of the Art Authorship Act (Kunsturheber Gesetz: KUG) according to which portraits may only be disseminated or publicly displayed with the consent of the person portrayed. The right guaranteed there to one's own picture is a special manifestation of the general right of personality (references omitted), the violation of which can amongst other things trigger a claim to an injunction under §§ 823 and 1004 of the BGB. It is, however, limited according to § 23 (1) no. 1 of the KUG for persons of contemporary history. The appeal court, without erring in law, considers the claimant to be such a person. This limitation is displaced, however, according to § 23 (2) of the KUG amongst other things if a justified interest of the person portrayed is violated by the dissemination of the picture. Whether this is the case is determined by a balancing exercise in which it has to be decided whether the status of the general right of personality of the person portrayed, which includes the rights under §§ 22f. of the KUG, deserves priority against the legal position claimed for the picture (reference omitted). Also, in so far as the claimant objects to the mention of his name his wishes find support in the general right of personality guaranteed in constitutional law by Art 2 para 1 in combination with Art 1 para 1 of the Basic Law and in §§ 823 (1) and 1004 (1) of the BGB. Whether a violation of this right is present is likewise to be established on the basis of the individual case, on the grounds of a balancing of rights and interests. This is because, due to the peculiar nature of the right of personality as a framework right, its scope is not absolutely fixed, but must in principle first be determined by a balancing of interests with the interests worthy of protection on the other side (constant case law, most recently [reference omitted]). Therefore, from both the legal points of view on which the claimant bases his claim to an injunction, it is a question of whether greater weight is to be attached to the claimant's general right of personality than to the legal grounds which the defendant can claim for his poster campaign.

b) The defendant refers primarily to the freedom of expression of opinion under Art 5 para 1 sentence 1 of the Basic Law for his poster campaign. The courts have to take into account the importance of this basic right in the interpretation and application of the provisions of private law (references omitted). The appeal court has followed this. It proceeds on the basis that the defendant is the holder of this basic right and that the poster shares in the protection of Art 5 para 1 sentence 1 of the Basic Law. The Senate shares this view.

aa) The text of the poster is covered in its totality by the freedom of expression of opinion. The reply to the appeal in law unsuccessfully claims that the totality of the statement in the text and picture in the poster proves to be an assertion of facts which, being untrue, was not protected by Art 5 para 1 of the Basic Law. Admittedly it has to be conceded in favour of the reply to the appeal in law that the text of the poster contains a series of assertions of facts, namely the assertion that Hoechst AG, together with Kali Chemie AG, is primarily responsible for the German production of CFCs, that the claimant represents Hoechst AG in the context of this responsibility and that the production of CFCs contributes to the destruction of the ozone layer and to the greenhouse effect. These are however true facts. The truth content of these statements is not put in question by the fact that the text does not mention that Hoechst AG has committed itself to abandoning the production of CFCs, and has bound itself to reduce this production in stages until complete cessation of production in 1995. It does not need to be decided whether the defendant had a duty to refer to an imminent cessation of production. As Hoechst AG nevertheless, according to its own declaration, is continuing the production of fully halogenated CFCs until 1995, admittedly reducing in stages, but still significant worldwide, there was no cause for the defendant to add to his assertion that Hoechst AG was still a leading producer of CFCs ("absolute apex")] a reference to the further production plans. This was all the more so as the partly halogenated replacement material which was under consideration, according to the uncontradicted statement of the defendant, was likewise damaging to the climate as it at least contributed to the so-called greenhouse effect. The judgements which give the total statement its special character rest on this factual basis. In the expression "We ruin it" there is an accusation of an entrepreneurial decision assessed as disastrous for climate. The reference to being "Responsible for German production" contains over and above the factual content, the accusation that the production of CFCs by Hoechst AG should be attributed to the claimant as the representative of Hoechst AG and a decision maker for its production. The invitation "Telephone:..." expresses the idea that influence by the public on both undertakings producing CFCs was required in order to halt the destruction of the climate.

The text analysis makes it clear that it is a question here of a combination of factual assertions and judgements. The text is therefore covered in its totality by the protective effect of Art 5 para 1 sentence 1 of the Basic Law. Even factual assertions are protected by the basic right of freedom of opinion because (and in so far as) they are prerequisites for formation of opinions which Art 5 para 1 of the Basic Law guarantees. Insofar as a statement in which facts and opinions are mixed bears the imprint of the elements of taking a position, of propounding a view and of thinking, it is protected as opinion by the basic right. That applies especially when a division of the evaluating and the factual content would nullify or falsify the sense of the statement (reference omitted). That is the situation here. The poster fulfills its obvious purpose for the average observer, namely criticism by Greenpeace of environmental policy in relation to CFC production, only if it is considered as a whole.

bb) The rest of the formulation of the poster also falls within the protected area of freedom of expression of opinion. That applies especially for the copying of the picture of the claimant and the giving of his name, which are parts of the poster's total statement. The picture is meant to intensify the effect of the text by making Hoechst AG visible for the observer in the person of the claimant. The giving of his name pursues the same purpose. It is meant to make clear that persons are responsible for the entrepreneurial policy even of such large business undertakings as Hoechst AG. This personalisation of the attack aims to achieve an intensification of the effect of the statement of opinion which is covered by the protection of the basic right in Art 5 para 1 sentence 1 of the Basic Law. Likewise the satirical form of expression in the caption ("Everyone is talking about climate. We ruin it") as well as the sarcasm at the start of the first sentence ("The absolute apex ...") are forms of expression of opinion which are intended to heighten its effect.

2. The defendant's right to free expression of opinion is, as stated above, opposed to the claimant's general right of personality here primarily in two respects. The legal positions of both parties are therefore to be balanced against each other. This balancing takes place on the basis of a general consideration of the status of the basic right positions affected as well as by having regard to the intensity of the violation of the basic right in the actual case (references omitted). The weighing up which this requires of the extent to which the basic right is affected on both sides has led the appeal court to the conclusion that in the case in dispute the defendant's freedom of expression of opinion must take second place to the violation of the claimant's general right of personality which is associated with the publication of his picture and the giving of his name on the poster. That cannot be endorsed by the Senate.

a) The Federal Constitutional Court (BVerfG) and the Bundesgerichtshof (BGH) have in numerous decisions developed principles for the resolution of a confrontation between the general right of personality and the freedom of expression of opinion. According to these, the following applies: as the purpose of every public statement contributing to the formation of opinion is to arouse attention, in the light of the overstimulation of today all kinds of easily remembered and even strong formulations have to be accepted (reference omitted). That also applies for statements which consist of sharp and derogatory criticism, are expressed with exaggerated polemic or are formulated in an ironic way (reference omitted). The critic may even in principle express his opinion when others consider it to be "false" or "incorrect" (reference omitted). Even the form of expression of opinion is subject to the right, protected by Art 5 para 1 of the Basic Law, of self-determination of the person making it (reference omitted). If the person making the statement is not pursuing selfish aims, but his contribution promotes the intellectual conflict of opinions in a question substantially affecting the public, there is a presumption in favour of the permissibility of the statement. An interpretation of statutes limiting freedom of opinion which places excessive requirements on the permissibility of public criticism is not reconcilable with Art 5 para 1 of the Basic Law (references omitted). Further, the assessment of the scope of the basic right protection under Art 5 para 1 of the Basic Law depends considerably on whether and to what extent the person affected by the statements has himself taken part in the process of formation of public opinion protected by Art 5 para 1 of the Basic Law; and whether he has therefore subjected himself by his own decision to the conditions of the conflict of opinions and by such conduct foregone a part of his private sphere which deserves protection (reference omitted). It is only when disparagement of a person rather than discussion of the case which is in the foreground in respect of a statement, that the statement must be classified as abuse and, as a rule, take second place to the right of personality of the person affected, even if it concerns a question substantially affecting the public (references omitted).

b) According to these principles of assessment, the claimant must accept the publication of the poster. The defendant is not pursuing selfish aims with the poster campaign but is instead dealing with a subject which, because of its fundamental importance, invites committed expressions of opinion. The damage to the climate by CFCs is a pressing problem of our time. The defendant's poster campaign therefore represents a contribution to the intellectual conflict of opinions in a question substantially affecting the public. The presumption of legal permissibility therefore applies in its favour, according to the case law of the BVerfG. The fact that the claimant has, of his own accord, already stepped into the public arena in relation to this subject leads in the same direction. On the 25th October 1989 he expressed his view in extensive remarks in a press release on the question of why Hoechst AG is not (yet) stopping the production of CFCs. This amounted to an intervention in the public formation of opinion on this subject, before the defendant's poster campaign, not only by the undertaking led by him but by the claimant personally as its representative. According to the communication by Greenpeace of the 6th June 1990 declarations by the German CFC producers have amongst other things created for the defendant, who was especially committed to environmental protection, the impression of "playing with names", and this caused the poster campaign in the first place.

The Senate does not share the view of the appeal court that the poster campaign amounted to an impermissible pillorying of the claimant personally, or that it was abuse which had to take second place to his right of personality. The publication of a picture of the claimant and the giving of his name are, as has been mentioned, meant to intensify the effect of the statements in the poster on the observer and heighten the challenge to the claimant. But, in this connection, the attacks are not directed against the claimant as a private person, but as the person who represents one of the two German CFC producers as its responsible decision maker. It is only CFC production and its consequences which are the subjects of the poster. The person of the claimant only plays a role here in so far as he, in the defendant's view, is responsible as decision maker for production by the undertaking led by him. This also follows from the text of the poster itself, in which the defendant has added to the claimant's name the name of the undertaking led by him, and has thereby expressed the idea that the claimant is the target of the attack in his capacity as the person responsible in his undertaking. The appeal court also proceeded on this basis. Because of these obvious connections, which were moreover made clear by the text of the poster, the Senate cannot identify any pillorying of the claimant as a private person. That does not mean that the poster campaign is devoid of untoward consequences for the claimant's private sphere. The reference in the reply to the appeal in law to possible acts of aggression against him which could be provoked by the action is definitely relevant for the weighing up of interests and rights. But in this case such fears cannot justify a ban on the poster campaign. In the end they originate less in the defendant's action than in the actual state of affairs which, because of its significance for everyone's existence, can lead to such confrontations. They must be accepted within limits, if freedom of opinion is to apply also - and especially - in the intellectual debate about such questions relating to our existence. So far as they concern the claimant here, he is disadvantaged in his capacity as the person responsible in his undertaking. For the camp especially committed to protection of the environment, this undertaking because of its production of CFCs which is important not only in Germany but also worldwide, represents the opposite camp. According to the view of the Senate, Art 5 para 1 sentence 1 of the Basic Law permits, under these special circumstances, criticism in public debate of the person regarded as responsible in respect of an entrepreneurial decision, which has - at any rate according to the defendant's ideas - the extensive consequences for the general public mentioned in the poster. This applies in the same way as for far reaching political decisions. The importance of the basic right of freedom of opinion for a free and open political process (reference omitted) does not permit a person who, because of his position, must have decisions attributed to him which are as extensive as those for discussion here, to be granted the possibility of stopping such criticism by appealing to his private sphere. That is even more so if - as here - the person attacked had already, of his own accord, taken intensive part in the process of formation of public opinion conducted on this subject.

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