Bundesverfassungsgericht (First Division) 5 June 1973
BVerfGE 35, 202.
This case is first published in the German Law Archive courtesy of:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Copyright: Professor B S Markesinis
Translated by F H Lawson and B S Markesinis
The petitioner had participated in an armed robbery of an arsenal of the German armed forces in the course of which several soldiers on guard duty were killed or severely wounded. The culprits were arrested after a prolonged search and were convicted. The petitioner was convicted as an accessory and sentenced to six years’ imprisonment. A German television station commissioned a documentary play based on the crime, its planning, and detection and the background of the culprits, including the petitioner whose homosexual tendencies were stressed. The play showed a likeness of the petitioner and mentioned him frequently by name. The petitioner who had served two-thirds of his sentence and was soon to be released sought an injunction prohibiting the television company from broadcasting the play pending a decision on the merits of his claim that the play violated his right of personality.
The District Court of Mainz dismissed the action for an injunction on the grounds that the petitioner was ‘relatively a personality of contemporary history’ and could therefore not rely on the right to the protection of his personality. The Court of Appeal of Koblenz [reference] affirmed this decision by weighing the respective interests of an individual to be protected against the unauthorised publication of his likeness in accordance with §§ 22 and 23 of the Act on the Protection of the Copyright in Works of Art and Photographs (henceforth cited as KUG) as a projection of the right to his personality covered by Arts. I and 2 I, of the Constitution on the one hand and the need for objective pictorial information concerning persons in public life, which is recognised in § 23 KUG and must be interpreted in the freedom to express opinions and the liberty of broadcasting stations to provide information, protected by Art. 5 I of the Constitution on the other hand. The Court of Appeal held that in this conflict the right to provide information must prevail, especially since the trial had been concluded. The petitioner was ‘relatively a personality of contemporary history’; his interest in social reintegration had to give way to the interest of the public in general to receive a truthful account of the facts and the persons involved …
The German Federal Constitutional Court quashed the decisions of the two courts below on the ground that Art. 2 I in conjunction with Art. I I of the Constitution had been violated and issued a temporary injunction prohibiting the broadcasting of the play in question to the extent that it mentioned the petitioner by name and reproduced a likeness of him.
11. For the present case the Court of Appeal has held correctly that several fundamental rights affect the application of private law and that they lead in opposite directions. The right to one’s personality guaranteed by Art. 2 1 in conjunction with Art. I I of the Constitution conflicts with the freedom of broadcasting stations to provide information, in accordance with Art. 5 I, sentence 2 of the Constitution.
I. On the one hand, a televised broadcast of the kind in issue here concerning the origins, execution, and detection of a crime which mentions the name of the criminal and contains a representation of his likeness necessarily touches the area of his fundamental rights guaranteed by Art. 2 1 in conjunction with Art. I I of the Constitution. The right to the free development of one’s personality and human dignity safeguard for everyone the sphere of autonomy in which to shape his private life by developing and protecting his individuality. This includes the right ‘to remain alone’, ‘to be oneself’ within this sphere [reference], to exclude the intrusion of or the inspection by others [reference]. This includes the right to one’s likeness and to one’s utterances [reference] and even more to the right to dispose of pictures of oneself. Everyone has the right in principle to determine himself alone whether and to what extent others may represent in public an account of his life or of certain incidents thereof.
However, according to the constant practice of the Federal Constitutional Court, not the entire sphere of private life enjoys the absolute protection of the above-mentioned fundamental rights [references]. If an individual in his capacity as a citizen living within a community enters into relations with others, influences others by his existence or activity, and thereby impinges upon the personal sphere of other people or upon the interests of communal life, his exclusive right to be master of his own private sphere may become subject to restrictions, unless his sacrosanct innermost sphere of life is concerned. Any such social involvement, if sufficiently strong may, in particular, justify measures of public authorities in the interest of the public as a whole – such as the publication of pictures of a suspect person in order to facilitate a criminal investigation (§ 24 KUG). However, neither the interest of the State to clear up crimes nor any public interest always justifies an infringement of the personal sphere [reference]. Instead, the pre-eminent importance of the right to the free development and respect of personality which follows from its close connection with the supreme value enshrined in the Constitution, i.e. human dignity, demands that any intrusion of the right of personality which may appear necessary to protect such interest, must always be balanced against the protective rule laid down in Art. 2 1 in conjunction with Art. I I of the Constitution. Accordingly, it must be determined in the individual case by weighing the particular interests whether the pursuit of the public interest merits precedence generally and having regard to the features of the individual case, whether the proposed intrusion of the private sphere is required by this interest in this form and extent, and whether it is commensurate with the importance of the case [references].
These principles, which were developed by the courts in respect of measures taken by public authorities, must be observed equally when the courts have to determine conflicting interests on the basis of private law. In the course of such a determination the courts are not precluded from taking into account the special position accorded to the media represented by broadcasting and television by virtue of their organisation regulated by public law and their public functions.
2. In this respect the consideration is decisive, as the Court of Appeal has pointed out correctly, that the broadcast in dispute serves a function, the free exercise of which on its part is directly protected by a provision in the Constitution. Freedom of information by broadcasts in accordance with Art. 5 I, second sentence of the Constitution (freedom to broadcast), like the freedom of the press, of expression and information is a basic constituent element of a liberal-democratic order [references] …
Only when the exercise of the freedom to broadcast conflicts with other protected legal interests, the purpose of the individual broadcast, the manner of its presentation, and its actual foreseeable effect may become relevant. The Constitution has regulated possible conflicts between the freedom to broadcast and the interests of individual citizens, of groups and of the community as a whole, by referring to the legal system as a whole; according to Art. 5 II of the Constitution the emission of broadcasts is subject to the restrictions imposed by the general law. According to the constant practice of the Federal Constitutional Court the need expressed by this provision to take other protected legal interests into account must not render the freedom to broadcast a relative one; instead the laws which restrict the freedom to broadcast must in turn be interpreted in the light of the constitutional guarantee and must, if necessary, be equally restricted in order to ensure that the freedom of broadcasting is safeguarded adequately [reference]. Consequently the opposing protected legal interests must be balanced against each other in each individual case in the light of general and specific considerations.
III. I. The general laws referred to by Art. 5 II of the Constitution include also the provisions Of §§ 22, 23 of the Act on the Copyright in Works of Plastic Art and Photography of 9 January 1907 (RGBI. 1907) maintained by § 141 no. 5 of the Copyright Act of 9 September 1956 (BGBI. 1 1273). which formed the basis of the judgment in issue before this court. These provisions, the wording and the original purpose of which related originally to the right to one’s own likeness, have for a long time been interpreted by the courts and by writers to apply also to reproductions of one’s likeness. whether accompanied by the person’s name or not, as well as to the representation of a person by an actor on a stage [references]. The general approached these provisions has changed since the Constitution came into force to the effect that the right to one’s likeness is regarded as an aspect, as a special feature of the general right of personality which was derived from Arts. I and 2 of the Constitution [references].
These provisions are in accordance with constitutional law; their somewhat flexible character gives sufficient scope for applying them in keeping with the Constitution and it has been shown in practice that it is possible, in balancing the interest, as required by § 23 KUG, to take sufficient account of the reflex effect of the relevant fundamental rights. In this context. it is irrelevant from the point of view of constitutional law which factual element of § 23 KUG serves as the balancing factor [references,],.
2. In cases of conflict, such as the present, the general principle applies, on the one hand, that in applying §§ 22 and 23 KUG to televised broadcasts the freedom to broadcast must not be restricted excessively. On the other hand, as distinct from other general laws in the meaning of Art. 5 II of the Constitution, it is a special feature of the present case that the restriction of the freedom to broadcast serves in turn to protect an important concern of the Constitution; the interest of the person affected to prohibit the publication of his likeness or any representation of his person, which must be protected with the framework of § 23 KUG, is directly enhanced by the constitutional guarantee of the protection of personality. In solving this conflict it must be remembered that according to the intention of the Constitution both constitutional concerns are essential aspects of the liberal-democratic order of the Constitution with the result that neither can claim precedence in principle. The view of humanity taken by the Constitution and the corresponding structure of the community within the State require both the respect for the independence of individual personality and the guarantee of a liberal social atmosphere; the latter cannot be realised at the present time unless communications are unimpeded. In case of conflict both concerns of the Constitution must be adjusted, if possible; if this cannot be achieved it must be determined which interest must be postponed having regard to the nature of the case and to any special circumstances. For this purpose, both concerns of the Constitution, centred as they are on human dignity, must be regarded as the nucleus of the system of constitutional concerns. Accordingly, the freedom to broadcast may have the effect of restricting any claims based on the right of personality; however, the damage to ‘personality’ resulting from a public representation must not be out of proportion to the importance of the publication upholding the freedom of communication [reference]. Furthermore it follows from these guiding principles that the required weighting of interests must take into account the intensity of the infringement of the personal sphere by the broadcast on the one hand; on the other hand, the specific interest which is being sensed by the broadcast and is capable of being thus served, must be assessed and examined as to whether and to what extent it can be satisfied even without any interference – or a less far-reaching interference – with the protection of personality.
IV. I. In the light of these general principles the following criteria are relevant from the point of view of constitutional law in assessing televised broadcasts of the kind in issue here.
(a) A public report of a crime in which the name, a likeness, or a representation of the culprit is provided will always constitute a severe intrusion of his personal sphere, seeing that it publicises his misdeeds and gives from the outset a negative slant to his person in the eyes of those to whom the report is addressed. It may be different if the report is designed to create sympathy for the culprit, as for instance in order to achieve a new trial, a pardon, or some other assistance …
(b) Disregarding the possibility of an additional infringement by the manner of the representation (polemics, falsification), even a report which seeks to be objective and factual, if televised constitutes normally a much greater invasion of the private sphere than an oral or written report published in the press or over the radio. This is so, in the first place, because the visual impression and the combination of a picture and word is much stronger, but mainly because television commands a much greater audience than the cinema and the theatre, resulting in a special position. Consequently there is a special reason ‘for watching over the observation of the limits established by the law and to prevent an abuse [sic] of the right of personality which had become more vulnerable. In this respect the law must not give way to technical developments’ [reference].
(c) If for the above-mentioned reasons alone a special need exists for protection against violations of the right of personality by televised broadcasts reaching such a wide audience, it must be remembered that the broadcast performance of a documentary play entails specific dangers …
In conclusion it can be stated that television broadcasts reporting on a crime naming, depicting, or representing the culprit, especially in the form of a documentary play, will normally constitute a serious invasion of his sphere of personality.
2. On the other hand weighty considerations suggest that the public should be fully informed of the commission of crimes-including the person of the culprit, and of the facts which led to them. Crimes, too, are part of contemporary history, the presentation of which is altogether the task of the media. Moreover the violation of the general legal order, the infringement of protective legal interests of the citizens involved or of the community, sympathy with the victims and their relatives, fear of the repetition of such crimes, and the desire to prevent them create a fully justified interest in receiving detailed information concerning the deed and the criminal. This interest will be all the greater the more the criminal act is unusual having regard to the special features of the object of the attack, the manner in which it was carried out, or the severity of the consequences. Where serious crimes of violence are involved, such as that represented in the play in issue, the interest to receive information is based riot only on general curiosity and sensationalism but on serious reasons for asking who were the perpetrators, what were their motives, what was done to detect and to punish them, and for preventing similar crimes. For this purpose the desire to know only the facts will be predominant, but as time passes the interest increases to receive a more searching interpretation of the deed, its background, and its social setting. Not least is the legitimate democratic desire in determining to control the organs of the State and public authorities responsible for security and order, the prosecution and the criminal courts …
3. In balancing generally the interest in receiving information as circumscribed above by televised reporting within these limits against the invasion of the sphere of personality of the culprit which must follow inevitably, the interest in receiving information must generally prevail in so far as current reporting of crimes is concerned. He who breaks the peace established by law, attacks or violates by his act and its consequences his fellow citizens or legally protected interests of the community, must not only suffer the criminal punishment provided by the law. He must also accept, as a matter of principle, that the public interest in information caused by himself by his own deed is being satisfied in the usual manner in a community which observes the principle of freedom of communication. Moreover, the control of the prosecution and of the criminal proceedings which is assured thereby also benefits the culprit. However, the interest to receive information does not prevail absolutely. The importance of the right to personality, which is a corner-stone of the Constitution, requires not only that account must be taken of the sacrosanct innermost personal sphere [reference] but also a strict regard for the principle of proportionality. The invasion of the personal sphere is limited to the need to satisfy adequately the interest to receive information, and the disadvantages suffered by the culprit must be proportional to the seriousness of the offence or to its importance otherwise for the public. Consequently, it is not always admissible to provide the name, a picture, or any other means of identifying the perpetrator.
It is obvious that the right of personality is only postponed if the reporting is objective and if the interpretation is serious; it is different if the account seeks to be sensational, is intentionally one-sided or misleading. On the other hand, objective reporting of a serious crime justifies not only the publication of the name or of a likeness of the perpetrator; it also includes his personal life in so far as it is directly connected with the act, provides clues about his motive or the setting, and seems relevant for assessing the guilt of the perpetrator in the light of modern criminal law. The actual question as to where the limits are to be drawn in fact seeing that in principle the interest to receive information by reports of contemporary events must prevail, can only be answered having regard to the circumstances of the individual case.
4. The reflex effect of the constitutional guarantee of personality does not, however, allow the media of communication, apart from contemporary reporting, to deal indefinitely with the person of the criminal and his private sphere. Instead, when the interest in receiving information has been satisfied, his right ‘to be left alone’ gains increasing importance in principle and limits the desire of the mass media and the wish of the public to make the individual sphere of his life the object of discussion or even of entertainment. Even a culprit, who attracted public attention by his serious crime and has gained general disapproval, remains a member of this community and retains his constitutional right to the protection of his individuality. If with the prosecution and conviction by a criminal court the act attracting the public interest has met with the just reaction, of the community demanded by the public interest, any additional continued or repeated invasions of the personal sphere of the culprit cannot normally be justified.
5. (a) The time-limit when the reporting of current events which is admissible in principle becomes subsequently an inadmissible account or discussion cannot be stated generally; certainly it cannot be stated in months and ears so as to cover all cases. The decisive criterion is whether the report concerned is likely to cause the culprit considerable new or additional harm, compared with the information which is already available.
(b) In order to determine the time-limit more clearly, the interest in reintegrating the criminal into society and to restore his social position may be treated as the decisive point of reference.
(c) Altogether a repeated televised report concerning a serious crime which is no longer justified by the interest to receive information about current events is undoubtedly inadmissible if it endangers the social rehabilitation of the culprit. The vital chance necessary for the existence of the culprit and the interest of the community to restore his social position must prevail in principle over the interest in a discussion of the crime. Whether and to what extent any exceptions are conceivable such as in the case of an overriding historical interest, of scholarly or other broadcasts which are addressed to a limited range of viewers need not be examined here.
V. I. Examined in the light of the criteria of constitutional law, the decisions appealed against cannot be maintained. The district court has sought to balance the interests of the petitioner and the broadcasting station exclusively by reference to §§ 22, 23 KUG without taking notice of the reflex effect of the fundamental rights contained in Art. 2 I in conjunction with Arts. I and 5 I of the Constitution.
The Court of Appeal did realise that a conflict exists between the freedom to broadcast by virtue of Art. 5 1 of the Constitution and the guarantee of personality by virtue of Art. 2 I and Art. I of the Constitution; in balancing, having regard to § 23 KUG, between the right to one’s likeness and the interest of the public to receive information it did take the reflex effect of these fundamental rights into consideration. In solving this conflict it did not, however, apply correctly the criteria which are to be derived from the existing constitutional provisions for the determination of cases such as the present, but have not been formulated hitherto by the Constitutional Court; above all, it did not attribute to the interest in rehabilitation the importance which it deserves from the point of view of constitutional law.
2. If sufficient account is taken of the effect of the provisions of the Constitution which are relevant in the present case upon the general law the conclusion must be reached that the petition of the complainant must succeed …
©1999 Professor B S Markesinis. HTML edition by Lawrence Schäfer and © 1999 Gerhard Dannemann.