CASE OF ERNST AUGUST VON HANNOVER v. GERMANY
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
6. The applicant was born in 1954 and lives in Monaco. 7. In 1998 the applicant was involved in an altercation with a cameraman outside his property, “Gut Calenberg”, during which he struck the cameraman with an umbrella. In January 2000 the press reported on another scuffle between the applicant and the manager of a discotheque on Lamu Island off the Kenyan coast, as a result of which the applicant was convicted of assault. 8. On 27 March 2000 the company British American Tobacco (Germany) GmbH (“the company”) launched a ten-day advertising campaign with full-page advertisements in magazines and on posters at bus stops and other busy locations showing, on the lower half, a crumpled packet of Lucky Strike cigarettes lying on its side. The top half read, in large lettering: “Was it Ernst? Or August?” At the bottom of the advertisement was the phrase “Lucky Strike. Nothing else.” (“Lucky Strike. Sonst nichts.”) The campaign covered eighteen towns and cities and 6,364 billboards, which meant that it had a potential reach of approximately 2.97 million people. It was also reported in the media. 9. The applicant asked the company that had commissioned the advertisement and the advertising agency that had designed it to discontinue the campaign. The agency agreed to do so in writing, but the company refused. The applicant then made an urgent application to the Hamburg Regional Court. 10. On 31 March 2000 the Regional Court granted an interim injunction against any further distribution of the advertisement at issue, and confirmed the injunction on 14 April 2000. The company subsequently announced that it was discontinuing the advertisement, but refused to reimburse the costs incurred by the applicant for the official notice served on it. 11. On 8 March 2001 the applicant asked the company to pay him damages of 250,000 euros (EUR). The company did not respond to that request. 12. On 23 December 2003 the applicant applied to the Hamburg Regional Court for an order requiring the company and the advertising agency that had designed the advertisement to pay him EUR 100,000 for a “notional licence” (fiktive Lizenz) and at least EUR 500 in compensation for infringing his right to protection of personality rights, and also to reimburse the costs incurred in serving the official notice. 13. On 21 January 2005 the Regional Court allowed the applicant’s application as regards the notional licence and costs, and dismissed it as regards compensation. It pointed out that although everyone had the right to decide whether or not to allow his or her name to be used for advertising purposes, the general right to protection of personality rights (allgemeines Persönlichkeitsrecht) protected a person against the unlawful use by third parties of his or her name, including in the context of advertising. The Regional Court went on to observe that although the forenames “Ernst” and “August” were fairly common, the combination of the two was not. Moreover, since entering into a relationship with Princess Caroline of Monaco the applicant had become well known and the crumpled cigarette packet was a clear allusion to his scuffles. The Regional Court explained that advertising was also protected by freedom of expression in so far as it contributed to shaping public opinion; this applied, in its view, to the impugned advertisement. It further pointed out that both the right to freedom of expression and the right to protection of personality rights were protected under the Basic Law and that, in principle, they deserved equal respect. Where a person was used for advertising purposes without his or her consent, the right to protection of personality rights prevailed as a general rule. The Regional Court added that the company’s argument that as a result of his scuffles, the applicant had himself caused the event to which the advertisement referred did not deprive him of protection but it did affect the degree of the interference and the level of protection of freedom of expression. In conclusion, the Regional Court held that when balancing the competing interests, more weight was to be attached to the protection of the applicant’s personality rights than to the company’s right to freedom of expression regarding an advertisement which was essentially humorous in nature and pursued commercial aims. 14. As regards the pecuniary damage sustained, the Regional Court pointed out that the aim of a “notional licence” was to ensure that anyone using someone else’s personality without permission would not be in a more advantageous position than if he or she had obtained the person’s consent. It explained that the cost of such a licence was determined on the basis of the amount of a fee that would have been reasonable (angemessen). Having regard in particular to the applicant’s high profile, the billboards and advertising media used, and the fact that the advertisement had only used the applicant’s forenames, the Regional Court assessed the pecuniary damage at EUR 60,000. It also awarded the applicant the costs incurred in serving the official notice because they had resulted from the actions of the company and the agency. 15. On the other hand, the Regional Court did not award the applicant compensation in respect of non-pecuniary damage on the ground that there had been no serious interference with the protection of his personality rights. It emphasised that the applicant had struck the cameraman in public and that the advertisement had simply referred back to that event. Furthermore, the fact that the advertisement was merely derisive meant that there was no unavoidable need (unabwendbares Bedürfnis) to award pecuniary compensation, and the award of a notional licence should be deemed sufficient redress. 16. On 15 May 2007 the Hamburg Court of Appeal upheld most of the Regional Court’s judgment, varying it solely as regards the order for the company to reimburse the costs incurred in serving the official notice. 17. The Court of Appeal observed that the company and the agency had interfered with the applicant’s right to his own name without his permission. In that context, it pointed out that even though the advertisement had only used the applicant’s forenames, those names were well known to the general public because of the relationship between the applicant and the daughter of Prince Rainier III of Monaco and the repeated press reports on the applicant’s altercations in 1998 and 2000. It further noted that the company had derived a pecuniary advantage from using the applicant’s forenames. In cases such as the present one, where the impugned advertisement was designed to enhance the recognition and sales of a brand of cigarettes, freedom of expression generally took second place to the protection of personality rights. The Court of Appeal considered that the impugned advertisement had made very little contribution, if any, to shaping public opinion, that the applicant’s scuffles had been neither a political nor a societal event, and that the incidents had only been exploited for the purpose of entertaining a general public curious about the behaviour of famous people. 18. The Court of Appeal further pointed out that the impugned advertisement had infringed the pecuniary aspect of the right to protection of personality rights by depriving the applicant of his right to make his own choice as to whether and how his name could be used for advertising purposes. Clearly, the advertisement had not given the impression that the applicant identified with the product advertised or that he recommended it, nor was it offensive or degrading in nature, but with the sole aim of increasing sales of a brand of cigarettes it publicly mocked the applicant by suggesting that he even crumpled up cigarette packets. 19. As regards the cost of the notional licence, the Court of Appeal pointed out that the unauthorised use of a person’s name for commercial purposes was tantamount to unlawfully using a person’s image and infringed the pecuniary aspect of the right to protection of personality rights. It held that in using the applicant’s name without his consent the company and the agency had shown that they had attached economic importance to that name. The company and the agency were therefore under an obligation to pay the applicant the amount corresponding to the use of his name, and this obligation existed irrespective of whether the person in question would have been prepared to consent or not. 20. The Court of Appeal further stated that the cost of the notional licence had to be freely determined on the basis of all the relevant circumstances. It noted that the particular feature of the impugned advertisement was that it mocked the applicant, which made it unlikely that the applicant would have authorised it. However, it considered that the amount of the fees agreed between advertising companies and famous people who consented to the use their names might provide an indication for determining the cost of the notional licence. It noted in that connection that the company was one of the largest tobacco companies in Germany and that the impugned advertisement had been part of a very successful advertising campaign which the company had launched in 1989. The advertisement in question had taken up a full page in several national magazines and also, from 27 March 2000 onwards, in the form of posters at bus stops and other busy locations. Lastly, emphasising that the applicant was a well-known figure, it found that the advertising campaign had indeed attracted extensive public attention, thus justifying the award made by the Regional Court. 21. The Court of Appeal granted leave to appeal on points of law, on the grounds that the question whether the use of a famous person’s name for advertising purposes was justified where the advertisement referred to an event in contemporary history which was of no, or virtually no, interest except from an entertainment perspective had not yet been determined by the case-law of the Federal Court of Justice, and that a decision was required from that court in order to develop and maintain a standard line of authority. 22. In a judgment of 5 June 2008 (no. I ZR 96/07) the Federal Court of Justice quashed the Court of Appeal’s judgment. It held that the applicant’s claims were ill-founded because the company and the agency had not unlawfully interfered with his right to protection of personality rights or his right to his name, given that the use of his name in the impugned advertisement was covered by the right to freedom of expression as guaranteed by Article 5 § 1 of the Basic Law (see “Relevant domestic law and practice”). While upholding the findings of the Court of Appeal as regards the existence of an interference and the possibility of granting a notional licence in accordance with the principle of unjust enrichment, the Federal Court of Justice held that the Court of Appeal had not had sufficient regard to the fact that the pecuniary components of the right to protection of personality rights and the right to one’s name were only protected by ordinary law, whereas freedom of expression enjoyed protection under constitutional law. 23. The Federal Court of Justice explained at the outset that the case before it related solely to interference with the pecuniary components of the rights relied upon, since the applicant’s contention that the advertisement had also infringed the non-pecuniary components of his rights had already been dismissed by the Regional Court. It pointed out that the rights to protection of personality rights were among the fundamental rights safeguarded by the Basic Law to the extent that they protected non-pecuniary interests, but that the pecuniary components were only protected by civil law and therefore did not prevail over freedom of expression. The Federal Court also observed that the protection conferred by Article 5 § 1 of the Basic Law also covered advertising whose content contributed to shaping public opinion, while specifying that that was not only the case where the advertisement referred to a political or historical event, but also where it dealt with questions of general interest. Furthermore, reports with an entertainment purpose could also play a role in shaping public opinion, or indeed, in certain circumstances, could stimulate or influence the shaping of public opinion more effectively than strictly factual information. 24. The Federal Court of Justice noted that the impugned advertisement provided a satirical, derisive slant on the applicant’s scuffles outside his “Gut Calenberg” property and on Lamu Island. The media had reported on these events, mentioning the applicant’s name and publishing photographs of him, because there was a particular public interest in information about the incidents on account of the applicant’s relationship with the daughter of Prince Rainier III of Monaco. The Federal Court of Justice considered that even though the company had merely alluded to the applicant’s scuffles as part of its advertising campaign, it could still rely on the specific protection of freedom of expression. It held that the fact that the advertisement – by using the applicant’s forenames and alluding to his propensity for picking fights – had been mainly intended to increase sales of the cigarette brand by capturing the attention of the general public did not mean, as the Court of Appeal had maintained, that the right to protection of personality rights prevailed in general. 25. The Federal Court of Justice continued as follows: “In weighing up the competing interests the Court of Appeal failed to take adequate account of the fact that the only issue at stake in this case was the protection of the pecuniary components of the right to protection of personality rights, such protection being based solely on civil law and not constitutional law. In the case of interference with the pecuniary components of the right to protection of personality rights because a well-known person’s name has been used in an advertisement without his consent, it cannot simply (ohne weiteres) be maintained that the person’s right to protection of his personality rights will always prevail over the advertiser’s right to freedom of expression. On the contrary, it might be appropriate to tolerate an interference with protection of personality rights resulting from reference to a person’s name if, on the one hand, the advertisement alludes in a derisive, satirical manner to an event involving the person and forming the subject of public debate and if, on the other hand, it does not exploit the person’s brand image (Imagewert) or advertising value (Werbewert) by using his name, and if it does not give the impression that the person identifies with the product advertised or advocates its use (reference to the Federal Court of Justice judgment of 26 October 2006, no. I ZR 182/04).” 26. The Federal Court of Justice held that the impugned advertisement had not given such an impression. It had merely served as a reminder of the applicant’s scuffles for anyone who already knew about them, while anyone who had never heard of those events would have been unable to understand the play on words, especially since the incidents had not been actually mentioned but had been hinted at in a particularly clever (pfiffig) way. The Federal Court of Justice therefore took the view that the advertisement had been part of the public debate on the applicant’s aggressive attitude. Above and beyond the derisive, satirical allusion to the events already known to the public, it had been devoid of any offensive or seriously degrading content in relation to the applicant. Given the absence of any suggestion that the applicant identified in any way with the product advertised, there were no grounds for considering that the advertisement was disparaging towards him simply because it was promoting cigarettes. The Federal Court of Justice concluded that the applicant’s interest in not being mentioned in the advertisement without his consent carried less weight than the tobacco company’s freedom of expression, and that in the absence of a violation of the pecuniary or non-pecuniary components of his right to protection of his personality rights, the applicant could not claim an entitlement to a notional licence or to reimbursement of the costs incurred in serving the official notice. 27. On 6 April 2009 the Federal Constitutional Court declined to accept for adjudication a constitutional complaint by the applicant (no. 1 BvR 3141/08). It provided no reasons for its decision. ...