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Case:
OLG Oldenburg 6 U 107/82
Date:
13 January 1983
Judges:
Professor B.S. Markesinis
Copyright:
Raymond Youngs

Facts:

The claimant, both of whose kidneys had failed about five years previously, had received a kidney transplant from her brother in 1977. X Illustrated, whose publisher is the first defendant, reported on the story of the claimant's illness in a 1978 edition, after the claimant - as also her brother - had agreed the publication with the editor U of the first defendant. In the summer of 1981, the editor intended to produce a new version of the story of the claimant's illness, this time for the Illustrated X Revue which was also run by the first defendant, whose chief editor is the second defendant. For this reason, the editor U contacted the claimant's mother by telephone. A new article then appeared in the editorial part of the X Revue about the history of the claimant’s illness under the headline “Her brother’s kidney saved her life”.

The claimant demands payment of compensation for distress from the defendants for the publication of this article.

The Landgericht has rejected the claim.

The claimant has lodged an appeal against this judgment.

Reasons:

The appeal is admissible, but not materially justified, because the Landgericht has correctly found that the prerequisites under which, in the case of an unlawful and culpable violation of the right of personality, the victim can demand compensation for distress are absent.

Admittedly, it is possible to see the further report in the X Revue about the history of the claimant’s illness as an invasion into the claimant's intimate sphere, and therefore a violation of her right of personality. This is because a human being’s state of health (which was partly the theme of the report in the article in the X Revue in 1981 of which the claimant disapproved) is part of that person’s intimate sphere, and therefore enjoys the absolute protection of the personality (reference omitted).

The defendants cannot claim not to have invaded the claimant's right of personality by their further report on the ground that the release of part of her intimate sphere by her consent to the 1978 report continued to have an effect at least until 1981. For this, the claimant would needed to state her agreement at the time not only to a one-off report but to every further publication, however formulated, with concrete reference to herself and the story of her illness at whatever point in time in the future. An express declaration of this scope by the claimant (or at least conduct by the claimant in 1978 which could be taken to amount to a implied declaration of an approval framed as widely as this) is not however apparent from the material circumstances as a whole. Nor can it be derived from the witness statement of the editor U.

Suppose it were argued that revelation of this part of the intimate sphere occurring three years earlier as a result of the report then on the transplant, together with the accompanying circumstances, continued to have some effect of its own. It is not however possible to deny that the report in the summer of 1981 constituted an invasion of the claimant's intimate sphere by using this argument to claim that in this respect in June 1981 an intimate sphere for the claimant had not existed at all. It should instead be assumed that in principle when the intimate sphere of a human being has been revealed to the public by publications in the press over a certain period, it closes up again after a certain time. A new consent by the person affected to its revelation is therefore necessary, in so far as a consent “for all the future” has not been given. It seems necessary to look at the matter in this way because of the continuing development of the destiny, personality and experiences of all human beings, who are subject in principle to changes in views and opinions, resulting from the passage of time. The period of three years between the two publications by the defendants could represent a period, which is sufficient in itself for a restoration of the intimate sphere.

The invasion of the claimant’s right of personality associated with the report in June 1981 was also unlawful.

A personality of contemporary history would in this respect have to place his interest in the protection of his intimate sphere second to a priority need for information by the public. But the claimant had not become such a personality, either by her kidney transplant or by the appearance of the report about it in 1977 and 1978. The successful transplant itself may be an event of contemporary history, as an extremely rare operation on a human being even today, and much more then. The claimant’s personal destiny which was affected by this, and the very personal circumstances of her life preceding the operation and resulting from it, dominated the report even in the summer of 1981. They ranked at least equally with the transplant as such, if not in priority to it. But they do not justify regarding the claimant as a person of contemporary history. This is because the transplant in itself was not inevitably linked to the identity of the claimant and the personal circumstances of her life affected by it. Any justified need on the part of the general public for information about the technical medical status of kidney transplants and the chances of success with such operations could have been satisfied anonymously - without the actual inclusion of the claimant’s identity and the story of her life. Therefore there is no need to consider in any more detail the question of whether publication of the story of the claimant’s illness was not under her control at all because she was to be regarded as a person of contemporary history. The claimant’s consent was consequently necessary to justify the invasion of the sphere of her personality arising from the June 1981 publication. The claimant would have had to give this consent again, in view of the absence of any continuing effect for the consent given in 1978 to the publication then.

But no such further consent by the claimant herself can be derived from the content given in evidence by the editor U of his telephone conversation with the claimant's mother. Besides this, the telephone contact which the editor made with the mother was even in the editor's personal opinion - as he has testified - certainly not to obtain a further consent to publication. It was only to acquire further information about developments in the claimant's state of health and that of her brother in the meantime.

Whether the invasion of the claimant’s right of personality, which is therefore unlawful because it occurred without the claimant’s consent, is also to be treated as culpable on the defendants’ part is nevertheless doubtful. It depends on whether the editor U who was responsible here (and whose possible culpability should be attributed to the defendants) would, on careful examination of all the angles in press law to be considered here, need to and be able to recognise that a further publication in 1981 would no longer be covered by the claimant’s permission given three years earlier for a report of corresponding content.

This however does not need a final decision, because even an unlawful and culpable violation of the sphere of the personality by a press publication cannot on its own found a claim by the victim to payment of compensation for distress. For this, there must also be a grave violation of the personality. But a violation of such seriousness cannot be established.

Whether an invasion of a human being’s right of personality has occurred with a seriousness which requires the granting of monetary compensation for satisfaction of the non-material damage can only be decided on the basis of all the circumstances of each individual case. In particular, it is necessary to consider here the type of damage inflicted and the level of culpability, as well as the cause and motive for the editorial action (reference omitted).

The type of damage which has occurred here does not justify assessing the invasion of the claimant's right of personality as grave. On this point, the claimant in her appeal claims that the article to which she objects reports on a physical deformity which she has. This is objectively correct, but is not connected with any discrimination against the claimant, because the claimant is neither wounded in her sense of honour, nor belittled in her self-esteem by the report. A generally restrained report about a human being’s illness which does not reproduce details affecting the intimate human sphere, does not on its own induce a sense of shame. Besides this, the main focus of the article in the X Revue did not consist in the report about the claimant's illness. The main topic of the article was “the life threatening sacrifice of a man for his fatally ill sister” and therefore the personality of the claimant's brother. Finally, the fact that the publication in the summer of 1981 had not been the first of its kind, but merely a repetition of the report of 1978 which was essentially the same in content - and sanctioned by the claimant at that time into the bargain - also militates against assessing the publication as a grave invasion of the claimant’s right of personality.

Culpability cannot be found in negligence of a graver nature. This is because the accusation against the defendants about their editor U could have been merely that he made the avoidable mistake that the claimant had given her consent in 1978 not only for a single publication but also for later reports on the part of the defendants.

There is no motive forming the basis of the article in the X Revue which should be condemned as one-sidedly commercial or even as reprehensible in press law. The motive assigned in the statement of the editor U does not permit the finding that the fresh publication was exclusively dominated by editorial endeavours “to sell” a human story which would impress the readership of the magazine and would be presented with public appeal. The editor U has said in his witness statement that the purpose of his call to the claimant’s mother had been to obtain further information, in particular about the present state of health of the claimant and her brother. The editor was therefore satisfying a perfectly serious need for information on the part of sections of the magazine’s readership. This might justifiably be supposed to have consisted in discovering whether the success of the transplant, which in 1978 could only be assessed provisionally, now - three years later - might begin to emerge as a permanent success. Besides this, the claimant herself has stated that she had only given her consent in 1978 to a report about the story of her illness because she had believed that she could help other similarly sick people by an appeal for kidney donation in a prominent position in an appropriate article. The positive statement about the state of health of an organ recipient contained in the article of the 4th June 1981, which was made without reservation, is entirely appropriate to promote a positive attitude to the problem of organ donation.

In view of all this, it is not possible to attribute to the invasion of the claimant’s right of personality in the publication of the 4th June 1981, even though unlawful and possibly also culpable, a gravity which would irrefutably require the awarding of monetary compensation for its satisfaction. The claimant’s appeal is therefore demonstrated to be unfounded.

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