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Case:
BGHZ 35, 363 = NJW 1961, 2059 Bundesgerichtshof (Sixth Civil Senate) (with approving notes by W. Rötelmann = NJW 1962, 736 and H. Hubmann = VersR 1962, 350, 562)
Date:
19 September 1961
Judges:
Professor B. S. Markesinis
Copyright:
F. H. Lawson and B. S. Markesinis

The plaintiff is a professor in the law faculty of the University of G at which he holds a chair of international and ecclesiastical law. From a stay in Korea he had brought with him a ginseng root, which he placed at the disposal of his friend Professor H, a pharmacologist, for research. The latter mentioned in a scientific article on ginseng roots that he had come into possession of genuine Korean ginseng roots ‘through the kind assistance’ of the plaintiff. This led to the plaintiff being described in a popular scientific article, which appeared in the year 1957 in the H and W journal, along with Professor H and other scientists, as one of the best-known ginseng researchers of Europe.

The defendant company dealt in a tonic containing ginseng. In its advertisement for this tonic the plaintiff was referred to as an important scientist expressing an opinion on its value, and in an editorial note, printed in immediate connection with an advertisement in another journal, allusion was made to its use as an aphrodisiac. Both the advertisement and the journal were very widely distributed.

The plaintiff claimed that he had suffered an unauthorized attack on his personality right; and that the advertisement gave rise to the impression that he had, for payment, issued an opinion on a controversial topic in a department of knowledge not his own, and unprofessionally lent his name to advertising a doubtful product. He had suffered damage to his reputation as a learned man and been made an object of ridicule to the public and above all to his students. In reliance on BGHZ 26, 349 (Herrenreiter) he claimed DM 10,000 as satisfaction for the harm done to him.

The Landgericht awarded him DM 8000 as damages for pain and suffering. The appeals to both the Court of Appeal and the Bundesgerichtshof were unsuccessful for these

Reasons:

1. By invoking the plaintiff’s scientific authority in its advertising to encourage belief in the effectiveness of its preparation for the mentioned purposes, the defendant company unlawfully disparaged his personality right (§ 823 I BGB).

The reference to researches by the plaintiff, which lacked any objective foundation, was in the circumstances calculated to make him an object of ridicule in society and lessen his scholarly reputation. Moreover, he was bound to feel outraged by the way his name was used in advertising a preparation recommended as a sexual stimulant. The defendant company’s conduct was also blameworthy. Before using the plaintiff’s name for its advertisement it ought to have sought his agreement or at least to have ascertained whether and where he had stated what was asserted in its advertisement. The information in a popular article in the H and W journal ought in no way to have been adopted unseen; it was moreover substantially altered. The Court of Appeal rightly characterized the defendant’s conduct as irresponsible. Likewise approval must also be given to the Court of Appeal’s finding that the defendant company was also responsible for the note in the M journal which adopted in somewhat modified form the contents of the advertisement. Even if it was the advertising agency employed by the defendant company that caused the note to appear, the information contained in it depended on material supplied by the defendant company. At the very least, the defendant company had not supervised the advertising agency as was necessary.

2. The senate also agrees with the Court of Appeal’s view that the plaintiff has a claim to compensation for immaterial damage. The case is, in its main lines, very similar to those decided by the Bundesgerichtshof and reported in BGHZ 26, 349 (Herrenreiter) and 30, 7. In both cases the way a product was advertised attacked the protected sphere of the personality right of persons who claimed compensation for the unlawful injury. In both the conditions for compensation for material damage were absent or at any rate not proved. If, in the circumstances, no permission to use a name or portrait for advertising purposes is in question, it is not possible to estimate pecuniary compensation on the lines of a licence fee according to the principles governing so-called unilateral acquisition without permission. The First Civil Senate awarded damages for pain and suffering to the plaintiff in the case decided by it and reported in BGHZ 26, 349 and also regarded an award of so-called ‘immaterial damages’, with its function of satisfaction, as the adequate compensation that the law must afford to a plaintiff for the violation of his personality right. From the decision reported in BGHZ 30, 7 it must be taken that the standpoint of the Fourth Civil Senate is at least not at variance with that of the First Civil Senate.

This Senate agrees with the First Civil Senate that satisfaction may be awarded to a person affected by the blameworthy infringement of his personality right. It is indeed stated in § 253 BGB that money compensation can be claimed for non-pecuniary damage only in cases expressly designated by the law. When the BGB established that enumeration principle, the high value of the protection of human personality and its special sphere had not received the recognition that it enjoys according to Arts. 1 and 2 I of the Constitution. From the standpoint of the BGB, the protection of property interests always stood in the foreground, whereas the personal worth of a human being received only insufficient and fragmentary protection. In recognizing a general personality right of mankind and granting it the protection of § 823 I BGB, the courts drew for civil law purposes the consequences resulting from the rank the Constitution assigned to the worth of human personality and the protection of its free development. That protection, however, would be incomplete and full of loopholes if an infringement of the personality right did not give rise to a sanction adequate to the violation. Just as the restriction of protection by the law of delict to specific legal interests of a human being has proved too narrow to afford the protection of personality required by the Constitution, so a narrowing of immaterial damages, for immaterial loss to cover only injury to specifically mentioned legal interests, no longer conforms to the value-system of the Constitution. For Art. 1 declares it to be an urgent obligation on the public power to protect the sacred dignity of the human being. Article 2 I puts the right of a human being to free development of his personality at the head of the fundamental rights. If the law of delict, in protecting the personality right in the non-material realm, retreated completely to a position where it merely protected the particular personality interests mentioned in Art. 2 II, which are emanations from the personality right, the civil law would not be paying attention to the value-decision of the Constitution. The elimination of damages for immaterial loss from the protection of personality would mean that injury to the dignity and honour of a human being would remain without any sanction of the civil law, which deals with the disturbance of essential values and makes the doer of injury owe satisfaction to the victim for the wrong done to him. The law would then renounce the strongest and often only instrument calculated to ensure respect for the personal worth of the individual.

3. That does not mean that the legal consequences of injuries to body, health, and freedom on the one hand and the violation of the personality sphere on the other hand must be exactly the same or at least largely correspond to each other. A need for differentiation is already indicated by the fact that the factual aspect of an injury to a general personality right is much less specific than where body, health, or freedom is injured. That means that there are many marginal cases where the question is whether the case is one included in the generalized description of violation of the personality and whether, if it does, the unlawfulness is not excluded by the competing rights of the ‘offender’, among which the right to free expression of opinion deserves particular attention. It is precisely where a so-called balancing of interest must take place that the limits of what is allowed are not always easy to fix. If for every overstepping of the limits, however petty, compensation for immaterial loss were to be awarded to the person affected, there would be a danger that unimportant injuries would be used inappropriately to make a gain. The purpose of awarding satisfaction would then be stultified. It must further be observed that it is more difficult to apply the general criterion of monetary value to measure immaterial injuries to the personality right than the consequences of bodily injuries. In injuries to the general personality right the satisfaction function of damages for pain and suffering advances into the foreground as that of compensation recedes. Hence it will always be necessary to look at the kind of injury to the personality right to see if the person affected, whose injury cannot otherwise be redressed, should be granted satisfaction for the wrong he has suffered. That will in general only be the case when the doer of damage is blamed for a serious fault or when an injury to a personality right is objectively significant. Only when such disturbances are serious may the civil law, taking seriously the protection of personality and its value as such, react against the injury by granting satisfaction to the person affected. Insignificant injuries do not call for satisfaction. Having regard to the special character of an injury to a personality right Swiss law, which has devoted greater attention than the BGB to legal protection of the personality (cf. Art. 49 I of the Swiss Code of Obligations) also restricts damages for immaterial loss to serious cases.

4. The conditions for an award of immaterial damages especially occur when—as in a present case—there is a wanton attack on the personality right of another person out of a desire to increase the force of one’s commercial publicity. Such an unfair attempt to succeed can be effectively countered only if it is burdened with the risk of an appreciable loss, and on the other hand, anyone who seeks to make money out of an unfair invasion of the sphere of another’s personality must not feel hurt if he is forced to pay a money compensation. For the plaintiff the outrage inflicted—in particular since the object was recommended for specific purposes—was not at all insignificant, the more so because he ran the risk of readers assuming that he had lent his name for a money consideration. The award of a money compensation by way of satisfaction was justified by the seriousness of the attack as well as by the seriousness of the fault.

The amount of satisfaction to be given was for the judge of fact to assess. It could be attacked on appeal only if it rested on an incorrect finding of the applicable law or if the judge of fact overlooked essential points of view. No such defects, however, are here apparent. The Court of Appeal did right in attaching importance to the spread of publicity, which extended to Austria and Switzerland. It was also an essential factor in fixing the amount of the satisfaction that the defendant company continued the advertising complained of even after being warned by the plaintiff, thus displaying an especially reckless attitude. On the other hand, the Court of Appeal observed in the defendant company’s favour that the mention of the name in the advertisement was not especially prominent, so that it might not have been noticed by the cursory reader.

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).

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