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Case:
BGHZ 13, 334 = NJW 1954, 1404 = JZ 1954, 698
Date:
25 May 1954
Note:
(with an approving note by Helmut Coing)
Translated by:
F. H. Lawson and B. S. Markesinis
Copyright:
Professor Basil Markesinis

The D Company published on 29 June 1952 in its weekly journal … an article by K. B. with the title ‘Dr H.S. & Co.’ and the sub-title ‘Political considerations concerning the foundation of a new bank’. The article contained a comment concerning the new Bank for Foreign Trade founded by Dr S in H, and expressed itself in that connection in opposition to Dr S’s political activity during the national-socialist regime and the years after the war.

On the instructions of Dr S the plaintiff, an attorney, sent to the defendant company a letter of 4 July 1952, saying, inter alia:
I represent the interests of Dr S. In terms of § 11 of the Press Act I hereby require the following correction of the above-mentioned article in your issue of Sunday the 6th instant:
1. It is incorrect that …
2. …

This claim for correction is made under the Press Act, in combination with the BGB, and also the law of copyright.

I ask you to inform me by telephone or in writing on or before midday Saturday 5 July 1952, of your confirmation of the unrestricted execution of the required correction, failing which legal proceedings will be taken.

The defendant company gave the plaintiff no answer. But in the issue of 6 July it published, along with sundry expressions of opinion by readers on K. B.’s article, the following under the heading ‘Letters from Readers’.

Dr H.S. & Co.

To the … [name of journal]

I represent the interests of Dr H.S.

1. It is incorrect …

2. …

Dr M, Attorney

In the contents of 1 there was no reproduction of or extracts from the appropriate Nuremburg judgment concerning Dr S which the plaintiff had introduced in his letter of 4 July 1952. Otherwise they were unaltered.

The plaintiff sees in this kind of publication an injury to his right of personality. The publication of his letter, written in his capacity of attorney for Dr S, under the heading ‘Letters from Readers’ and with its contents falsified by the omissions and the choice of title, constitutes a deliberate misleading of the public. The incorrect impression was thus created that this was a mere expression of opinion by a reader on the previous article on Dr S, as was the case with other readers’ letters printed under the same rubric. The plaintiff, however, had kept clear of taking any political attitude and had acted only as an attorney within the scope of his instructions. From a professional standpoint alone the conduct of the defendant company was intolerable. An attorney must be able to ensure that demands for correction made in his client’s name must not be circulated in a misleading manner.

The plaintiff demanded that the defendant company be ordered to recall in its next issue under ‘Letters from Readers’ its statement that the plaintiff had sent a reader’s letter to the defendant company in the matter of ‘Dr H.S. & Co.’

The defendant company takes the view that it was not bound to agree to the plaintiff’s demand for a correction, because his letter did not conform to the requirements set out in § 11 of the Press Act. It lay therefore within its discretion whether and at what place in its journal to print the communication. The Landgericht granted the claim under § 823 II BGB, in combination with §§ 186, 187 StGB. The Oberlandesgericht rejected the claim. According to the Court of Appeal’s opinion there was, in the abbreviated publication of the plaintiff’s letter under the rubric ‘Letters from Readers’, no lawful disparagement of the plaintiff. The method of this publication certainly contained an incorrect statement of fact. The incorrect statement that the plaintiff had sent a reader’s letter to the defendant company was, however, not apt to injure his credit, nor to bring him into contempt or lower his dignity in public opinion.

The appeal led to a restoration of the Landgericht’s judgment for these

Reasons:

The Court of Appeal was in error in failing to examine whether the plaintiff’s claim was justified on the basis of a disparagement of his personality rights. It dismissed the action only because it did not consider as proved the objective presuppositions (elements) of a delict in the sense of §§ 823 II, 824 BGB in combination with §§ 186, 187 StGB. This objection is rightly made in the appeal.

It can be left undecided whether the plaintiff’s letter of 4 July 1952 was a written work in the sense of § 1 of the Copyright Act and hence fell within the protection of copyright. The Reichsgericht has, indeed, constantly made the protection of correspondence to depend on whether it showed the individual form required for the protection of copyright (RGZ 41, 43 [48]; 69, 401 [403]). On the other hand it has been rightly pointed out in the academic literature that a need for the recognition of a personality right in respect of the use of one’s own notes exists equally even when that protection cannot be derived from the personality right of the author, on the ground that they do not possess the form given by an individual intellectual activity … The Reichsgericht believed that it must deny such a protection of personality independent of copyright to publications of correspondence because the German law then in force contained no positive statutory provisions on a general personality right (RGZ 79, 397 [398]; 82, 333 [334]; 94, 1; 102, 134; 107, 277 [281]; 113, 414; 123, 312 [320]). It has indeed, in many decisions on § 823 BGB, approved of the protection of personality rights (RGZ 72, 175; 85, 343; 115, 416; 162, 7), but in principle it has recognized personality rights with an absolute power of exclusion only for certain specified personality interests. In the literature, Gierke and Kohler had already pleaded for the recognition of a comprehensive personality right …

Moreover, now that the Basic Law [Constitution of 1949] has recognized the right of a human being to have his dignity respected (Art. 1), and also the right to free development of his personality as a private right, to be universally respected in so far as it does not infringe another person’s right or is not in conflict with the constitutional order or morality (Art. 2), the general personality right must be regarded as a constitutionally guaranteed fundamental right.

No further discussion is needed here of whether and how far the protection of this general personality right, the limitation of which requires a balancing of interests, is restricted in particular cases by justified private or public needs, which outweigh the interest in the inviolability of the exclusive sphere of personality; for in this present case it is not evident that the defendant company has any interests worth protecting, which it could use to justify the conduct objected to by the plaintiff. On the contrary, by the defendant company’s choice of a way of publishing the request for correction, omitting essential parts of the letter, interests of the plaintiff in the nature of personality rights have been infringed.

Every verbal expression of a definite thought is an emanation from the author’s personality, even when the protection of copyright cannot be attributed to its form. It follows that in principle only the author is entitled to decide whether and in what form his notes are communicated to the public; for every publication of the notes of a living person under his name is rightly regarded by the public as proceeding from a corresponding direction of his will. The nature of the notes and the method of their communication is subject to the criticism and valuation of public opinion, which draws conclusions from those circumstances about the author’s personality. While an unauthorized publication of private notes constitutes—as a rule—an inadmissible attack on every human being’s protected sphere of secrecy, a modified reproduction infringes the personality rights of the author because such unauthorized alterations can spread a false picture of his personality. In general, not only unauthorized omissions of essential parts of the author’s notes are inadmissible, but also additions through which his notes presented for publication only for certain purposes acquire a different colour or tendency from what he expressed in the form chosen by him and the kind of publication he had allowed.

In so far as they concern works protected by copyright, those legal principles have long been inferred by the courts from the creator’s enjoyment of the personality right of an author, which is only a particular phenomenon of the general personality right (RGZ 69, 242 [244]; 79, 397 [399]; 151, 50). As regards the protection of personality the interest of the author in notes which are protected by copyright is essentially the same.

In the present case the plaintiff had unambiguously sent to the defendant company only a demand for correction and, indeed, in his character as attorney for Dr S. Thereby the defendant company was only empowered by the plaintiff either to publish the text in an unshortened form or, restricting itself to the required correction, to make clear that there had been a demand for correction. Since the plaintiff does not ask for his original desire for correction to be carried out, it is unnecessary for the purpose of this decision to consider whether his letter of 4 July 1952 conformed to the conditions of the Press Act. If, in agreement with the Court of Appeal, this had to be denied, the only consequence would be that the defendant company had a right to refuse altogether to publish the letter. But it was not entitled to publish it under the rubric ‘Letters from Readers’ and, moreover with the omission of the passages that would clearly show that the plaintiff was not putting forward his personal opinion in favour of Dr S but wished to obtain a correction under the Press law.

The Landgericht’s decision is to be approved, that this mode of publication—and also the placing of the correction side by side with five other letters on the article on Dr S published by the defendant company—was bound to produce the impression on an impartial reader that the plaintiff’s letter gave his personal attitude to the controversy about Dr S. That misleading impression was also not dispelled by the literal reproduction of the plaintiff’s introductory sentence; for that sentence, in its generally accepted character, told the reader only that the sender was Dr S’s attorney. It did not make sufficiently clear that the content also of the letter in question referred to his instructions as attorney and that it had been composed by him not as a private person but in the exercise of his profession.

Accordingly the Court of Appeal was not in error in holding that the publication of the letter of corrections in shortened form under the rubric ‘Letters from Readers’ contained an untrue statement of facts. This also means that through the mode of publishing it, the letter acquired a meaning not in conformity with its original composition and that this form of publication did not correspond to what the plaintiff had alone given permission for, namely broadcasting to the public the letter of correction in the form he had chosen.

The Landgericht was right in regarding the publication complained of, which according to its findings had become known to an extraordinarily wide circle of persons, as a continuing disparagement and therefore that the demand for revocation was justified.

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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