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Case:
BGHZ 73 ,120 Bundesgerichtshof Federal Supreme Court, Sixth Civil Senate
Date:
19 December 1978
Judges:
Professor Basil Markesinis, Always on the Same Path’ Essays on Foreign Law and Comparative Methodology , Hart Publishing 2001.
Copyright:
Raymond Youngs

On the 3rd of October 1974, the first claimant, the chairman of the CDU [the Christian Democratic Union], had had a telephone conversation with the then general secretary of that party, the second claimant, which without the knowledge of either of them was "bugged" by an unknown person and recorded or taken down in shorthand. A written record of the conversation was received, with an anonymous letter posted in Kaiserlautern on the 2nd June 1975, at the editorial office of "stern" Illustrated produced in the publishing house of the first defendants, whose editor-in-chief is the second defendant. The second claimant was told about this at an interview with two editors of "stern". As the editor-in-chief (who was the second defendant) would not give to the claimants the confirmation they requested that publication would not take place, they obtained an interim injunction prohibiting the printing of the telephone conversation. But in the meantime an article about the "bugging affair" had already been printed (with the co-operation of an editor who was the third defendant) with the full content of the conversation and almost completely delivered, so that the claimants could no longer prevent its appearance.

In their claim they ask for the defendants to be prevented from publishing the telephone conversation between them, the claimants, in whole or in part, or otherwise passing it on to third parties.

The Landgericht and the Oberlandesgericht allowed the claim. The defendants' appeal in law, which is admissible, was unsuccessful.

Reasons:

1. By publishing the telephone conversation, for which the first defendant as publisher and the second and third defendants as editors are indisputably responsible, the claimants' personalities have been affected in two overlapping protected areas.

a) Firstly, the publication interferes with the interest of the claimants in not allowing the content of their conversation to reach the public.

Their interest in keeping it secret arose simply because the subject matter of the conversation made it part of their personal sphere. Two friends in the party [the CDU], both in prominent positions within it, were discussing the emergence of the first claimant as a candidate for chancellorship in the face of attacks against him in this context, in particular by "stern" Illustrated. Their critical concern was the attitude of the leadership and the grass roots of the party to this candidature. They were talking about indiscretions which had resulted in internal party matters reaching the press, and about measures to combat these. Quite personal things were spoken about, even though they referred to the claimants' work in the public sphere. In the conversation, thoughts and feelings were expressed, which a person would only make so frankly to a confidant whose discretion can be trusted, and which he would not let the public hear in that form, even if he had no adverse consequences to fear for himself on this account.

The claimants have also left the defendants in no doubt about their wish for the maintenance of secrecy.

b) The extent of the interference which the claimants have suffered to their personalities by the publication is not, however, limited to their interest in keeping the content of their conversation secret. Their personalities were adversely affected more strongly than by an indiscretion, because of the area of the personality exposed by the publication of the transcript of the telephone conversation. The individual is especially reliant on this area being protected from the public in order to safeguard and develop his individuality.

Everyone, even a politician appearing in the public arena and seeking publicity, has in principle a claim protected by Arts 1 and 2 of the Basic Law to the safeguarding of his private sphere, to which others only have access insofar as he allows them to see it. In this private sphere he must be safe from control and censorship by the public, otherwise the basis on which his personality can be realised and develop would be endangered. All the events and expressions of life of this personal sphere are in principle protected by the right of the personality to self-determination in this way. This is above all true of a private conversation like the telephone call between the claimants, which did not lose its private character through the political aspect of the conversation. This is because what is said and how it is said depends a great deal on who is taking part in the conversation; a person can only participate uninhibitedly if he has control over the participants or at any rate knows them. This protection is removed if such a confidential conversation is secretly recorded and embodied in a transcript which is made available to the public. In a publication of this kind, therefore, the personality of the person affected is more strongly assailed than if merely something about the content of the conversation gets out; the reason is that it brings the personal sphere in all its complexity into the public eye. The recording does not only fix the content of the statements but also the expressions which the persons themselves have used in the conversation. Moreover, expressions acquire an importance of their own through a recording. All that was associated with the transitory nature of words in conversation and its own "dynamics" is, by being fixed in the transcript, transposed into a "static" condition, which can be accessed and repeated at any time for a completely different circle and a different situation, with a claim to authenticity. It is obvious that the personality in its intrinsic value is, even for that reason, considerably more strongly affected by such objectification, than by a mere indiscretion about a confidential conversation.

In order to protect the personality from such exposure and objectification of its sphere, everyone has the right guaranteed by virtue of the Constitution (and now actually extensively protected in criminal law (§ 201 of the StGB)) that in particular private conversations cannot in principle be recorded on a sound recording system nor played from this and transmitted by third parties without his consent (references omitted). It is also recognised on the same ground that recordings of a confidential character may in principle be published only with the agreement of the author and only in a manner approved by him (references omitted). The case law on the protection of the personality from publication of pictures without approval rests in the end on this basis as well (references omitted).

In the case in dispute it is admittedly not a question of a secret tape recording or the use of it; however, the personality must be protected to the same extent against publication of a written record of a telephone conversation. This is because the personal nature of such a record is scarcely less significant than for a tape recording. It makes the same claim to authentic recording of the individual sphere of the persons participating in the conversation, even though it does not reproduce the sound of the voice. At the same time, the fact that the reader is limited to what he sees carries with it the danger that the transcript acquires an importance of its own which is alien to the personality, and in which sharpening and weakening effects which are only expressed through speech are lost. Therefore, because of this special personal connection, the person affected must in principle keep control over who obtains insight by means of the transcript into his individual sphere and thereby the power of disposition over it.

2. Admittedly the personality is not absolutely protected either against indiscretions about confidential private conversations nor from exposure of its private sphere by an unauthorised record of a conversation, insofar as it is not a question of the inviolable area of the intimate sphere, which is not affected here. In particular, in relation to a press publication, the right of personality guaranteed by the Constitution comes into tension with freedom of the press, which is guaranteed with equal status by the Basic Law (Art 5 para 1 sentence 2 of the Basic Law). The scope of protection of the personality is therefore to be determined as against that freedom on the basis of a balancing of rights and interests. This has to be orientated to the personal interests of the claimants which are affected and those interests of the press in publishing of the conversation which are worthy of protection, and it must take into account all the circumstances of the actual case (references omitted).

In the end result, the appeal court correctly gave priority to the claimants here over the interest of the defendants in publication. Its statements need clarification, however, in order to avoid misunderstandings.

a) An absolute ban on use which prevented the press publishing any information from their conversation without regard to its value for the public, because of the claimant's interest in keeping their conversation secret, was not imposed on the defendants. This was not even to be the case if their informant himself had obtained the recording by a sound recording system or a bugging device in a criminal manner. Indisputably, the defendants did not participate in this invasion of the sphere of confidentiality, even though they reaped the benefits of the breach of confidentiality. As the appeal court correctly recognised, their action was therefore not even open to a criminal law conviction; the criminal law protection of § 201 of the StGB did not cover their conduct (references omitted). It is admittedly beyond question that the claimants do not have to accept it simply on that account. Yet the gap which the criminal law creates here indicates that the interest in keeping secret the content of the conversation is not to be simply equated with the interest in the preservation of the confidentiality of the spoken word, as the appeal court possibly thought. The right of personality cannot give absolute protection from indiscretions by the press either. It is true that such limitation may not be required by the mere fact that protection of this kind would scarcely be realisable because the diverse secret areas are of very different structure and the varied ways in which secrets get out can frequently not be investigated. But the need for such limitation follows from the fact that inalienable free communication would be burdened more heavily than in case of indiscretions if it were to be subject to a comprehensive legal control. In this respect the appeal in law refers pertinently to the fact that the constitutional guarantee of a free press would be limited to a questionable extent if publication of information which originates from invasion of the sphere of confidentiality was simply forbidden. It must, especially in questions which must interest the general public, also be allowed to report on events worthy of publicity which are not released for publication by the persons affected, even if they come from private areas which are not automatically accessible to the public.

Even for information which, like the telephone transcript sent to the "stern", has been obtained by invasion of the sphere of confidentiality which is especially protected in constitutional law by the secrecy of telecommunications (Art 10, para 1 of the Basic Law), there can in principle be no difference, insofar as the press does not itself participate in this invasion. It can be left undecided here in what way and to what extent the special value which the Basic Law attributes to the inviolability of this area of secrecy has an effect on the legal relationships between private individuals (reference omitted). At any rate, assessment of the question of whether such information is barred from the press because of the constitutional law guarantee of the secrecy of telecommunications must take into consideration the tension with the constitutional guarantee of press freedom. Communication takes place largely in areas which are protected by secrecy of letters, post and telecommunications. To exclude in a quite general or absolute way news from such occurrences from publication in the press would be to reduce the contribution of the press to the formation of opinion (which freedom of the press is to guarantee) to an extent which would not correspond to the status of this basic right. The constitutional law guarantee for the citizen "to inform himself unrestrictedly from generally accessible sources" (Art 5 para 1 sentence 1) likewise does not put such limits on the press (references omitted). The citizen's freedom of information does not, of course, coincide in subject matter and content with the right to information guaranteed by press freedom (references omitted). It is intended to protect the formation of the citizen's opinion from state limitations, but not to limit the sources of information of the press to "generally accessible" ones. The obtaining of information from not generally accessible sources as well - even if it is by exploiting a breach of confidence by its informant in which it did not itself take part - is not simply "unsuitable" for the press (reference omitted) so long as it keeps itself in this connection within the limits which are drawn for it under Art 2 of the Basic Law.

b) On the other hand, the knowledge that the information published by the press has been obtained, even if without its help, by invasion of the sphere of confidentiality requires a special degree of consideration towards the person affected.

aa) As has already been stated, the sphere of confidentiality not only underlines the private character which the statement has according to its content, but this is also to be respected by the public as a part of the personal sphere. The press must take also into account the interest which exists in being able to withdraw oneself from the public eye and which is worthy of protection. The fact that it did not force its way into the sphere of confidentiality itself does not free it from this responsibility. Publications from this area document and deepen the invasion; they also put the person's individual sphere in question. And not least the press must keep in mind that by taking up such information it can encourage third parties to invade that individual sphere.

In balancing the competing interests it is therefore in such cases not only necessary to look at the content of the information (references omitted). The way in which their informant has obtained the information can also limit the right and duty of the press to publish. That does not, however, mean that information obtained illegally may only be published if the general public has a fundamental interest in being informed, as the appeal court seems to assume (references omitted). There is likewise no room for parallels which can be drawn in this connection from the relationship of state power to the citizen, for instance on the limitations on the secrecy of telecommunications by the statute of the 13th August 1968 based on Article 10 of the Basic Law (reference omitted), because here it is a question of the tension between the basic freedoms of the personality and the press, which assumes a different form. As already explained, the press cannot simply be barred from taking up information illegally obtained if it would thereby contribute to formation of opinion in a question which interests the public. Respect for the area of confidentiality from which the information comes, however, requires a limitation of the publication interest to information with a "publicity value" which exceeds the interests worthy of protection in the personal sphere, the preservation of which must matter not only for the person affected but also all citizens. This is especially so if a third party has made an unauthorised invasion of this area and the publication must therefore inevitably strengthen the effects of this illegal invasion. The stronger the private character of the information, the closer the link to it of personal interests in maintaining secrecy and the greater the disadvantages which the person affected has to fear from a publication, the more permanent must its "publicity value" be, if the press wants to disregard his wish not to let it reach the public.

The judge must admittedly take into account the right of the press, likewise guaranteed with press freedom, not to expose its informant insofar as he, in this balancing operation which the judge has to undertake, is required, in favour of the person affected, to investigate the ways in which the information from his sphere of confidentiality reached the press. If the claimant refers to an invasion of his sphere of confidentiality, the proof which he has to provide of this cannot be made easier or even waived just because the defendant is not prepared to substantiate his opposition to such a claim (§ 138 of the Civil Procedure Code). Nor can the judge lay the press open in some other way to the necessity of exposing its information source, in order to protect itself from disadvantages. Otherwise the work of the press, which enjoys the protection of Art 5 para 1 of the Basic Law in the procuring of information, would be exposed to burdens which come into conflict with the freedom of the press guaranteed by virtue of the Constitution.

bb) In the case in dispute, the personal interests of the claimants are, as in particular the Landgericht has correctly emphasised, primarily affected by the fact that their personal sphere has been exposed to the public with special intensity by the printing of the record of the conversation. Such exposure is as a rule not offset by the desire of the press to report about the statements of leading politicians as comprehensively as possible. Consideration of the special value which the Constitution attributes to the non-disposability of the personality, requires, as has been explained, that only a very serious need for information on the part of the public can justify assailing a person in this way. But the defendants have not demonstrated such an interest in the publication of the telephone transcript.

They themselves say that the telephone call was even rather boring for a outsider from the point of view of its content. They wanted to publish it in order to show what language the first claimant, as a candidate for the chancellorship, used when he was not standing in front of a microphone; next, to reduce speculation about the "bugging affair" to a factual basis; and finally because of passages in which the other party to the conversation had criticised "stern" Illustrated. These are not however prevailing grounds justifying the exposure of the individual sphere in this way. The actual personality of a leading politician in the centre of the public interest is affected by throwing open his private conversation for discussion, against his will, by means of a transcript of the conversation, to such an extent that it needs more to justify such an action than a certainly widely held interest in getting to know him in his private surroundings as well. Also the fact that politicians are discussing political and social questions in their private sphere does not of itself give the public access to this area; otherwise there would be no protected private sphere for politician and this should be undeniable for them also (reference omitted). The same applies for the claimants' criticism of "stern". Such private opinions are quite common. Thus here also they were not so capable of making an impact in characterising political views and intentions of the critic which were of possible interest to the public that they therefore deserved the status, in public debate, of defining his position. There is also the fact that the defendants could get a public discussion going about the claimants' statements regarding "stern" (if it had to be recognised that they had interests worthy of protection in the matter in this respect) even without printing the telephone transcript, especially as this issue only formed a proportionately small part of the conversation. Their objection, that they could by means of the transcript describe the facts in the greatest detail, is not acceptable; that does not justify them in exposing the personalities of the claimants in their private dealings with each other to such a wide extent. The fact that the telephone conversation in this respect revealed personal relationships and necessarily gave insights into the claimants' personalities could not be overlooked by the defendants; they have themselves admitted that this had been one of the grounds for their decision to publish the conversation.

The fact that the confidentiality of the conversation has since been removed, after it was published, does not prevent a ban on publication or other transmission of the telephone transcript. This is because it emerges from the above considerations that the defendants do not have to enforce the interests of the claimants in keeping the content of the telephone conversation secret but their right that the individual sphere of their personality embodied in the telephone transcript should only be dealt with with their agreement. Every unauthorised further use of the recording by the defendants violates this right. The finding of the appeal court that there is in this respect a danger of repetition is likewise not open to objection under the law to be applied in the appeal in law.

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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This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.