Human Rights and the Protection of Privacy in Tort Law

A Comparison between English and German Law

Hans-Joachim Cremer

• Publisher: Taylor & Francis
• Year: 2010
• Print ISBN: 9780415477048
• eBook ISBN: 9781136913952
• Edition: 1
• Topic: Droit
• Subtopic: Droits civiques en droit

In its case law, the European Court of Human Rights has acknowledged that national courts are bound to give effect to Article 8 of the European Convention of Human Rights (ECHR) which sets out the right to private and family life, when they rule on controversies between private individuals. Article 8 of the ECHR has thus been accorded mittelbare Drittwirkung or indirect 'third-party' effect in private law relationships.

The German law of privacy, centring on the "allgemeines Persönlichkeitsrecht", has quite a long history, and the influence of the European Court of Human Rights' interpretation of the ECHR has led to a strengthening of privacy protection in the German law. This book considers how English courts could possibly use and adapt structures adopted by the German legal order in response to rulings from the European Court of Human Rights, to strengthen the protection of privacy in the private sphere.

Chapter 1:
Aspects of comparison and the European Convention on Human Rights in the context of German law

1.1 Intrusions, disturbances, unwelcome publications

Privacy matters. The need for privacy protection is evident. This is so not only with a view to state authorities’ activities – which can deeply invade the private sphere as two cases before the Bundesverfassungsgericht, the German Federal Constitutional Court, show. One of these concerns the powers of the Verfassungsschutzbehörde, the authority for protection of the constitution, of the German constituent state of North-Rhine Westfalia to collect data by secretly infiltrating computers (‘online searches’). ¹ In the other case the Bundesverfassungsgericht declared certain new provisions of the Federal Telecommunications Act (Telekommunikationsgesetz – TKG) nul and void. These require suppliers of telecommunications services to store, for a period of six months, specific traffic and locations data. These data are created when mobile and landline telephones, email and internet are used so that they may be retrieved for the purposes of criminal prosecution, the warding off of substantial dangers to public security and the performance of intelligence tasks. ²

The individual is also in need of protection when other individuals or private parties invade their private sphere. A surprising example comes from the book Chronicles, in which Bob Dylan writes about his experiences during the time when he lived in Woodstock with his family at the end of the 1960s. Their house apparently was under a constant siege not only by newspaper, television and radio reporters, but also by political enthusiasts and fans of his music, all of whom trespassed on his land. ³

This episode alone might suffice to show the relevance of privacy protection for celebrities. Yet if we look at judgments by German courts, the cases brought by Princess Caroline of Monaco, now Princess Caroline von

1 Bundesverfassungsgericht, judgment of 27 February 2008–1 BvR 370, 595/07–, BVerfGE 120, 274.

2 Bundesverfassungsgericht, judgment of 2 March 2010–1 BvR 256/08, 263/08, 586/08.

3 Dylan (2005), 116–118.

Hannover, against magazine publishers are the most prominent. The Princess in these cases sought to have the publication of pictures showing her and members of her family prohibited. ⁴ Another victim of paparazzi photographers has been Sabine Christiansen, a television news anchor woman and talk show host, who successfully filed suit against the republication of a photograph showing her going shopping in Puerto Andratx on the island of Mallorca. ⁵ Quite similarly, Heide Simonis, after losing her office as Prime Minister of the Land of Schleswig-Holstein, was pursued, observed and photographed by reporters and photographers of a prominent tabloid in situations, some of which the courts judged to have nothing to do with her official functions or her political career, but strictly to belong to the sphere of her private life. ⁶ Ms Christiansen also suffered intrusions of yet another quality when aerial photographs of the finca where she spends her holidays and which, due to its location in a nature reserve, is not easily accessible, were published in a television guide together with a description of the route leading to the estate. Although details of the normative legal background of such cases will be given later, the German courts have interestingly conceded that the publication of images showing the outer walls of private premises has the potential to violate the personality right. But in this specific case, in balancing the general personality right and the freedom of the press, they found Ms Christiansen only to have a right to demand the precise description of the route leading to the finca not to be published; the photographs as such were thus allowed to circulate. ⁷

Privacy seems to be a scarce commodity. In the age of the Internet it is waning even more. Gossip sites are alarmingly fast in presenting the latest ‘news’ on the private life of celebrities. Internet culture itself seems to seduce even ordinary people to disclose personal information and images of themselves. ⁸ The media’s money-driven appetite for private information on politicians, music or movie stars and other famous people appears insatiable and ever growing. ⁹ We need only to remember the case of the news reports on an alleged sex scandal

4 See only Bundesgerichtshof, judgment of 19 December 1995 –VI ZR 15/95–, 1996 Neue Juristische Wochenschrift 1128 = BGHZ 131, 332; Bundesverfassungsgericht, judgment of 15 December 1999–1 BvR 653/96–, BVerfGE 101, 361 – Caroline von Monaco II. Also see European Court of Human Rights, Von Hannover v. Germany, no. 59320/00, judgment of 24 June 2004, ECHR 2004-VI.

5 See Bundesgerichtshof, judgment of 1 July 2008 –VI ZR 243/06–, 2008 Neue Juristische Wochenschrift, 3138.

6 See Bundesgerichtshof, judgment of 24 June 2008 –VI ZR 156/06–, 2008 Neue Juristische Wochenschrift 3134.

7 Bundesgerichtshof, judgment of 9 December 2003 –VI ZR 373/02–, 2004 Neue Juristische Wochenschrift 762 (also quoting the Kammergericht’s judgment).

8 Cf. Adorján (2008), who gives the example that hardly more than an hour after Heath Ledger was found dead in his New York apartment on Tuesday, 22 January 2008, TMZ.com, a celebrity-gossip site, had the news.

9 Cf. Stadler (2008).

of the former President of the Fédération Internationale de l’Automobile (‘FIA’), Max Mosley, who successfully sued the News Group Newspapers Limited for damages for infringement of privacy before the High Court. ¹⁰

But it is not only the media, envisaged as reporters and journalists, probing into the private sphere. Pressure to disclose facts of one’s personal life may also come from other sources generating a public interest. This could, for example, be seen when a group of American physicians, in full-page newspaper advertisements, demanded that John McCain, who at the time was running for US President as the Republican candidate, make documents on his health condition and on the history of his illness available to the public. ¹¹ On the other hand, politicians appear more and more tempted to exploit their own private lives in order to make use of the media for their political purposes, which has especially been discussed with a view to French President Nicolas Sarkozy. ¹² There are worries that the loss of the private sphere, whether suffered or surrendered, is deeply changing society, especially by opening large spaces of the public sphere to ‘waves of moralisation, ’ tabloid journalism and political populism. In ancient Athens, privacy was said to have been preserved and protected within the oikos while the public debates in the agora, admittedly in a somewhat idealised view, were conducted without looking into a speaker’s private sphere seeing only the better argument prevail. Today, however, emotions count – whether we look at readers, viewers, Internet users, or voters. With persons becoming more important than substantive policies, political success is linked to personal reputation, and confidence in a person can be won or lost by disclosing how someone acts or behaves in private matters. ¹³ In this perspective privacy protection might be seen to gain not only societal, but political importance. ¹⁴ Perhaps privacy protection must even be accorded constitutional weight in the meaning of relevance for the functioning of democracy.

It is true that celebrities are those who seem to have the most substantial interest in privacy protection, if not for reasons of really wanting to preserve a personal sphere of liberty, then, as sometimes emphasised, but for reasons of selling glimpses of their private lives as dearly as possible. This is an attitude which privacy protection through tort law may well inspire and promote. However, as Bob Dylan rightly points out, ‘privacy is something you can sell, but you can’t buy it back.’ ¹⁵

10 [2008] EWHC 1777 (QB).

11 Gerste (2008).

12 See Zitzmann (2008a); Zitzmann (2008b).

13 See the article by the professor of sociology and the science of the media, Imhof (2008). Cf. also Barendt (2005), 231–2.

14 Cf. Fenwick Phillipson (2006), 809; Habermas (1994), 445–6, 449. An interesting aspect of unveiling the personal thoughts of individual kept private is highlighted by the publication of the diaries of Claretta Petacci, the lover of Benitto Mussolini, the comments on which however not always seem to have been written with seriousness. See Woller (2010).

15 Dylan (2005), 118.

All of these considerations, however, should not let us forget the importance of privacy protection for ordinary people. With progressing knowledge and technology in the field of genetic analysis, privacy matters for the workers of car factories whose employer demands them to undergo a blood test before hiring them, and for customers seeking health or life insurance should the insurer demand their genes to be screened in order to assess the probability of having to make payments.

Let us turn to tort-law ¹⁶ protection of privacy, and especially consider the protection against the publication of images, upon which this book will very much concentrate not only because it is, in a twofold meaning of the word, illustrative, but also because it is of quite practical relevance. And this is so not only for the rich and the beautiful, as can be shown by cases decided by courts in Germany where privacy protection under the heading of Schutz des allgemeinen Persönlichkeitsrechts (protection of the general personality right) reaches back into the middle of the twentieth century. ¹⁷

In some instances people who are close to celebrities can indirectly benefit from the famous person’s right to demand a magazine not to publish pictures of him. For instance, when Oliver Kahn won his suit against the publisher of the magazine Frau im Spiegel, his new girlfriend was de facto also protected against the publication of the photograph which showed her with the soccer star during their holiday in St Tropez. ¹⁸

Similarly, Princess Caroline’s children share in the protection afforded to their mother by Article 2(1) in combination with Article 1(1) of the Grundgesetz ¹⁹ : The Bundesverfassungsgericht extends the protection of a parent’s personality right, as guaranteed by constitutional law, to include parental care for children. The reason given for this is that Article 6(1) and (2) of the Grundgesetz, protecting the family and acknowledging the parents’ ‘natural right’ to raise and educate their children, reinforces the par...

Table of contents

• The University of Texas at Austin Studies in Foreign and Transnational Law
• Contents
• Table of cases
• Table of legislation
• Foreword
• Preface
• Abbreviations
• Chapter 1: Aspects of comparison and the European Convention on Human Rights in the context of German law
• Chapter 2: The European Court of Human Rights’ Caroline von Hannover judgment and its reverberations
• Chapter 3: Drittwirkung under the ECHR: Human rights obligation of state authorities and their influence on judicial decisions in private law disputes
• Chapter 4: Drittwirkung of constitutionally guaranteed basic rights in the German legal order
• Addendum
• Bibliography
• Index