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German personality rights in 2012

In Germany, courts have developed a "general right of personality" (allgemeines Personlichkeitsrecht). This right guarantees the protection of human dignity as well as the right to freely develop one's personality.

February 2013

Brief introduction to German rights of personality

In practice, the "general right of personality" is a bundle of rights that protects different aspects of an individual's personality from unauthorised public exposure. German courts have built a system of different "spheres" of the "general right of personality":

  • The "core" private sphere catches all aspects of an individual's intimate private life. If content affects the "core" private sphere, German law does not balance the interest against other factors (such as freedom of expression). Instead, it finds an infringement because the "core" area of private life is subject to absolute protection.
  • The "private" sphere covers all other aspects of an individual's private life (e.g. family life). If content affects the private sphere, court will have to balance all interests involved.
  • The "social" sphere includes social and business life; this sphere is also protected but to a lesser degree.

newspaper article

In considering whether the "general right of personality" has been infringed, for example, by a newspaper article, the court will start by examining whether the author is stating a fact or giving an opinion:

  • If the author is stating a fact, publishing will only be lawful if the author can prove the fact is true;
  • If the author is stating an opinion, publishing is likely to be lawful. An exception is made when a statement of opinion is not part of a debate, but instead is meant to defame another person.

Interesting German case law in 2012

There have been some interesting decisions on the right in 2012, including:

  • Higher Regional Court of Hamburg: Admissibility of reader reviews on websites
    On 18 January 2012, the Higher Regional Court of Hamburg (5 U 51/11) decided that the general right of personality could not be used to prevent a website operator from publishing/operating a readers’ rating system for hotels on its website. A hotel operator saw his business attacked by reviews and demanded that his hotel no longer be reviewed on the site. The Court decided that such a general prohibition of reviews could not be justified. The public had a legitimate interest to be informed by these sorts of sites. The Court stated that owners of businesses that are affected by negative evaluations on these sorts of sites were not devoid of all rights. They could demand deletion of individual false or defamatory statements.
  • Higher Regional Court of Cologne: Autocomplete feature in search engines
    search enginesSo far, autocomplete results have never been classified as an infringement of personality rights. Autocomplete is a functionality offered by some search engines whereby, as you type within the search box, the search engine predicts what you are going to type on the basis of searches by other users. In May 2012, the Higher Regional Court of Cologne (15 U 199/11) confirmed that autocomplete results are not an infringement. The Court decided that they do not have the character of independent statements made by the search engine or its operator.
  • District Court of Berlin: infringement of personality rights by a reality TV show
    The District Court of Berlin had to decide whether a person who agreed to take part in a reality TV show could claim a violation her "general right of personality" (July 26, 2012, 27 O 14/12). The show was the German equivalent of “Wife Swap”. The production was based on a contract for footage for a “television documentary”. However, the footage was subsequently edited (e.g. by adding graphical elements, music, and a voice-over). According to the Court, these elements made the applicant look ridiculous. In particular, the additions were not harmless ironic comments. Therefore, the Court decided that this kind of editing was an infringement. Despite finding infringement and ordering the production company to prevent further broadcast, the Court did not award damages on the basis that there was no particularly serious violation of the "general right of personality" and human dignity (which is a condition for damages claims under German law).
  • Federal Constitutional Court: Lawyer described as being “radically right-wing”
    freedom of speechOn 17 September 2012, the Federal Constitutional Court ruled that describing a lawyer as being “radically right wing” was protected by freedom of speech (1 BvR 2979/10). Prior to the proceedings, an internet debate had taken place in which the claimant lawyer made various comments including, “the super-wealthy families in England, France and Holland - mostly Khazarian, so non-Semitic Jews - determine the world economic events”. The Federal Constitutional Court ruled that to describe this person as being “radically right wing” was a statement of opinion rather than fact and was not an infringement of the general personality right insofar as the opinion was supported by a factual reference.

Outlook for 2013

We can expect more interesting decisions from the German courts on questions of personality rights during the course of 2013. For example, there has been huge media interest in the fact that the former German first lady, Bettina Wulff, is suing Google in the District Court of Hamburg over autocomplete results that pair her name with terms like "prostitute".

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German personality rights
Miriam Mundhenk


Miriam Mundhenk looks at the right of personality in Germany and how this right has been interpreted over the last 12 months.

"So far, autocomplete results have never been classified as an infringement of personality rights. Autocomplete is a functionality offered by some search engines whereby, as you type within the search box, the search engine predicts what you are going to type on the basis of searches by other users."