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Case:
BGHZ 26, 349 = NJW 58, 827 (with a partially approving and partially critical note by Larenz = JZ 1958, 571 and an approving article by H. Coing in JZ 1958, 558)
Date:
14 February 1958
Judges:
Professor B. S. Markesinis
Copyright:
F. H. Lawson and B. S. Markesinis

The plaintiff is co-owner of a brewery in X. He is active as a gentleman┬┐ show-jumper (‘Herrenreiter’). The defendant Limited Partnership is the manufacturer of a pharmaceutical preparation which is widely reputed as being able to increase sexual potency. To advertise this preparation in the Federal Republic, and in particular in K, it disseminated a poster with the picture of a show-jumper. Its basis was an original photograph of the plaintiff, which had been taken by a press agency at a show-jumping competition. The plaintiff had notgiven permission for the use of his portrait.

The plaintiff claimed damages from the defendant for the damage which he suffered as a result of the dissemination of the poster. He alleged that in the given circumstances he could only claim as damages what he would have obtained if he had allowed the defendant to use his portrait. As his professional and social position did not allow him, and his financial means did not compel him, to dispose of his portrait for advertising purposes, and in particular for the defendant’s preparation, he would have done this, if at all, only for a fair price, at a rough estimate DM 15,000 at the veryleast.

The plaintiff applied for an order that the defendant pay by way of damages a fair sum to be fixed by thecourt.

The defendant denied any fault and pleaded that, after touching up, the plaintiff’s features were not recognizable in the poster; and that it had not itself designed or produced the poster nor obtained the portrait from S, but had ordered it from the H advertising agency, which it had trusted as a respectable, competent, and reliable firm, not to injure the rights of third persons. The defendant could not have known that the poster had been designed on the basis of a photograph, or that the photograph showed a ‘gentleman’ rider. Only as the case developed did it discover that it really concerned a portrait of the plaintiff. Thereupon it prohibited without delay any further use of theadvertisement.

The Landgericht ordered the defendant to pay DM 1000 to the plaintiff by way of damages. The Oberlandesgericht ordered the defendant to pay DM 10,000 to the plaintiff. The defendant’s further appeal was unsuccessfulfor these

Reasons:

I. The Court of Appeal, in agreement with the Landgericht, found that the depiction of the rider in the poster allowed the plaintiff’s person to be recognized despite the retouching. It rightly concluded that the dissemination of the poster without the plaintiff’s permission injured his personality rights, namely his right to deal with his portrait, and that the defendant must compensate him under § 823 II BGB in combination with § 2 of the Act on Artistic Creations, if it was found to blame (cf. RG JW 1929, 2257, BGHZ 20, 345, 347 ff.). The Court of Appeal came to that conclusion seeing that the defendant had not observed the care required in the circumstances, since it had obtained in the course of its business the poster prepared by the H advertising agency without making certain that the person depicted had agreed to the intended use ofhis portrait.

The appellant’s attacks on these findings mustfail [further discussion not reproduced].

II.

In awarding compensation to the plaintiff the Court of Appeal had in mind the licence fee which he could have demanded if a suitable contract had been arrived at between the parties. It held that it was justified in applying a method of assessing damages developed for breaches of copyright, because it was hard for the plaintiff to show whether and to what degree there had been any pecuniary loss. In contrast to the Landgericht, which had thought DM 1000 to be sufficient, the Court of Appeal decided that DM 10,000 was the more appropriatefigure.

Although the appeal is unsuccessful in the result, it must be conceded that the Court of Appeal’s reasoning is not entirely appropriate to the peculiar facts ofthe case.

1. The appellant does not dispute that, even where there is an injury to the personality right to one’s portrait, the damage can be estimated according to the payment that would presumably have been arranged if there had been a contract. Nevertheless the appellant argued that this method of assessing damages, which the Senate in its judgment of 8 May 1956 (BGHZ 20, 345 ff.—Dahlke) declared admissible for the unauthorized publication of a portrait, could not be used if it was established that the person portrayed would, for special reasons, never have allowed his portrait to be usedfor advertising purposes.

If in the case under appeal pecuniary damage had actually been in question, this attack would not have been well founded. For according to settled case-law and academic opinion, where a claim to an appropriate compensation, is recognized, it is not a question of applying the general provisions of the law of damages but of its customary supplementation to make good injury to valuable exclusive rights, based on the equitable consideration that the defendant should not be better off that he would have been if his application for permission had been granted. The claim to appropriate compensation is therefore granted in all cases of unpermitted invasion of exclusive rights where permission is usually made dependent on payment and where, having regard to the kind of the right which has been violated, the invasion is habitually allowed according to the customs of daily life only—if at all—against compensation (BGHZ 20, 345, 353 ff.). It is not at all necessary for a contract actually to have come into existence if the invader’s conduct was otherwise unobjectionable.

2. It must, however, be agreed that the Court of Appeal, by the method of assessment it chose, did not really try to work out the economic loss to the plaintiff, but rather to adjust the satisfaction due to him to his non-material disparagement. In particular the reasoning by which it arrived at the amount of the damage to the plaintiff shows that according to its opinion also he did not suffer any tangible pecuniary loss. In truth he claims not compensation for a non-existent pecuniary loss but an appreciable satisfaction for an unlawful attack on his personality protected by § 22 of the Act on Artistic Creations and Arts. 1 and 2 of the Constitution. He demands satisfaction for the fact that a widely disseminated poster, by making him, one might almost say, ‘ride’ for the purpose of advertising the defendant’s tonic—and a sexual one at that—humiliated him and made him an object of ridicule. In such a situation it is absurd to award damages on the basis of a fictitious licence agreement. This way of estimating damage is appropriate only if one can start with the doing of some kind of pecuniary damage and all that is left is to alleviate the often difficult task of proving its amount. It fails if no pecuniary prejudice at all is in question. It fails also in the present case because it would assume that the plaintiff had done something that not only he, but all others of the same professional and social standing, must consider harmful and as a continuing degradation of his personality. It must convey an imputation that the plaintiff would, after all, voluntarily and for a large sum of money place himself in the unworthy position against whichhe is defending himself.

The plaintiff’s claim therefore cannot be supported by the Court of Appeal’s chosen method of assessment,helped out by the fiction of a loss of licence fee.

3. Moreover, basing the claim on unjustified enrichment is precluded because the plaintiff did not experience any pecuniary disadvantage and there is thus no pecuniary shift of the kind envisaged by §§ 812 ff. BGB.

4. If, therefore, the kind of assessment adopted by the Court of Appeal fails, and it is shown that the plaintiff in truth suffered no pecuniary damage, the decisive question comes to be whether he can demand compensation for the immaterial damage which he has suffered as a result of the invasion of his personality following the appearance of his picture in the advertisement. On the facts before it the Senate answers that question in the affirmative.

This Senate has already said in its decision in BGHZ 13, 334, 338 that the sacredness of human dignity and the right to free development of the personality protected by Art. 1 of the Constitution are also to be recognized as a civil right to be respected by everyone in daily life, in so far as that right does not impinge upon the rights of others and is not repugnant to constitutional order or the moral law. This so-called general right to one’s personality also possesses legal validity within the framework of the civil law and enjoys the protection of § 823 I BGB under the designation of ‘other right’ (cf. also BGHZ 24, 12 ff.).

Articles 1 and 2 of the Constitution protect—and indeed must be applied by the courts in the administration of justice—what is called the concept of human personality; they recognize in it one of the supra-legal basic values of the law. Thereby they are directly concerned with the protection of the inner realm of the personality which, in principle, only affords a basis for the free and responsible self-determination of the individual and an infringement of which produces primarily so-called immaterial damage, damage expressed in a degradation of the personality. To respect this inner realm and to refrain from invading it without authorization is a legal command issuing from the Basic Law itself. And it follows from the Constitution that in cases of invasion of this sphere, protection must be given against damage characteristic of such an invasion.

On the limited field of portrait protection this was established in 1907 by the special rules contained in §§ 22 ff. of the Act on Artistic Creations, long before the Constitution came into force and at a time when the civil law did not as yet protect a general personality right. For the protection afforded by § 22, according to which portraits may be distributed or shown publicly only with the subject’s consent, rests in essence on the fundamental principle of a person’s freedom in his highly personal private life, in which the outward appearance of human being plays an essential part. The unauthorized publication of a portrait constitutes, as has long been recognized in legal literature, an attack on the freedom of self-determination and the free expression of the personality. The reason why a third person’s arbitrary publication of a portrait is not allowed is that the person portrayed is thereby deprived of his freedom to dispose by his own decision of this interest in his individual sphere.

Once the violation of the right to one’s picture is seen as affecting one’s personality it is possible to seek an answer to the question how to compensate immaterial damage in § 847 BGB. This allows an equitable compensation in money for non-pecuniary loss in cases of ‘deprivation of liberty’. It is true that deprivation of liberty is here understood to mean deprivation of freedom of bodily movement, as well as compulsion to act, by means of force or threats, whereas § 22 of the Act on Artistic Creations deals with deprivation of the free and responsible exercise of will. Already, however, before the Basic Law came into force, the opinion was often expressed that any attack on the undisturbed exercise of the will was to be regarded as an injury to freedom in the sense of § 847 BGB. Now that the Constitution guarantees a comprehensive protection to the personality and recognizes human dignity and the right to free development of the personality as a fundamental value, it has done away with the dogma held by the original draftsmen of the BGB that there can be no civil law protection of general personality right; and since a protection of ‘inner freedom’ without a right to compensation for immaterial damage would be in great part illusory, it would be intolerable to refuse compensation for that immaterial damage. Moreover, there is no obvious reason why § 847 BGB should not be extended by analogy to such attacks as injure the right to free exercise of the will, especially where that deprivation of intellectual liberty, just like deprivation of bodily freedom, renders natural restitution impossible. Where such blameworthy depreciations of the personality right are in question, the effective legal protection offered by the Constitution can, in the absence of any special legal provision, be attained only through its inclusion in the injuries mentioned in § 847 BGB, since their injurious consequences are of necessity primarily immaterial.

This view is not at variance with the sense of § 35 of the Act on Artistic Creations. Of course the injured party can claim under it a penalty for the injury to his right to his portrait, and with it to have his immaterial loss made good, only in criminal proceedings and on condition that the injury was intended; but that special provision shows only that as early as 1907 the legislator regarded an infringement of § 22 as so far-reaching and threatening that it was considered necessary to grant expressly to the injured party a claim to compensation for the disparagement. The restriction of the criminal law claim for a penalty to intentional injuries accords with the legislator’s limitation of the threat of punishment for an infringement of § 22 to intentional interference. However, that does not mean that the same must apply to the civil law claims to compensation that are not regulated in the Act on Artistic Creations. On the contrary, since the Constitution now recognizes the general personality right as significant for civil law and has afforded a general civil law protection appreciably exceeding the narrow regulation of § 35 of the Act on Artistic Creations, the special provision of § 35 can no longer be cited in opposition to a more extensive civil law protection of the right to one’s portrait. The general provisions of the BGB concerning delicts come into operation instead. That means that, at any rate since the Constitution came into force, by an analogous application of § 847 BGB, any blameworthy injury to the right to one’s own portrait involves a duty to make good immaterial damage also.

In so far as the Senate, following the case-law of the Reichsgericht, decided in the Dahlke case (BGHZ 20, 345, 352 ff.) that immaterial damage cannot give rise to a money claim in the absence of express legal provision, its opinion cannot be upheld in the light of the foregoing discussions. The statement was obiter, since the facts disclosed pecuniary damage, which could be estimated on the basis of the usual licence fee.

III.

The compensation to be paid to the plaintiff was fixed by the Court of Appeal at DM 10,000. Although starting from a possible assessment according to the satisfaction that might have been paid in a case of contract on the usual terms, the court’s arguments fully apply also to fixing the amount of an equitable compensation under § 847 BGB. They also show that the court really awarded the plaintiff compensation for the immaterial damage that had resulted.

As the Grosse Zivilsenat explained in its decision of 6 July 1955 (BGHZ 18, 149), the claim for damages for pain and suffering offers the injured party an appropriate compensation for the depreciation of life (or personality) which is not of a pecuniary kind. But it also takes account of the notion that the doer of damage owes the injured party satisfaction for what he has done to him. It was emphasized in the decision that ‘satisfaction’, which forms an integral part of the award for compensation for immaterial damage, must take into account all the relevant circumstances. This Senate adheres to this view in this present case. If one therefore moves on from that position, it follows that the Court of Appeal was not in error in taking all the relevant circumstances into account in fixing the amount of damages. In particular, that court explained that the fact that the plaintiff had never been ready to take part in any advertising must be a factor in deciding the amount to be paid. It considered it especially serious that the advertisement was for an aphrodisiac, and so was not to be compared with advertisements for other products. The court was right in taking the view that persons would be unlikely to allow their likeness to be used on a poster for this purpose and so run a risk of being recognized by a wider or narrower public, exposing themselves to the innuendos to which the defendant’s preparation would give rise. The Court of Appeal also took the plaintiff’s social and business position into account, pointing to the fact that he moved in a social circle the members of which were for the most part known to each other and where the risk of making oneself an object to ridicule was especially great. When, after considering and giving weight to all these special circumstances relevant to amount of damages for pain and suffering, the Court of Appeal regarded the sum of DM 10,000 as appropriate compensation (§ 287 ZPO), it cannot be found to have acted contrary to 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) 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.