CASE OF BOHLEN v. GERMANY
Remainder inadmissible;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 Rosengarten. He is a musician and an artistic producer. 7. In autumn 2003 the applicant published a book entitled “Backstage” (Hinter den Kulissen). A number of passages in the book had to be redacted because of a series of urgent judicial proceedings which had been brought against him. 8. On 27 October 2003 a tobacco company, British American Tobacco (Germany) GmbH (“the company”), launched an advertisement showing two packets of Lucky Strike cigarettes in the foreground. There was a lit cigarette on top of one of the packets, with a thick black marker pen leaning against the other packet. The following text appeared at the top of the advertisement in large lettering: “Look, dear Dieter, how easy it is to write super books.” (“Schau mal, lieber Dieter, so einfach schreibt man super Bücher.”) The words “dear” (“lieber”), “easy” (“einfach”) and “super” (“super”) were blacked out but were still legible. At the bottom of the advertisement was the phrase “Lucky Strike. Nothing else.” (“Lucky Strike. Sonst nichts.”) 9. The full-page advertisement was published in the 17 October 2003 issues of the weekly magazine Der Spiegel and the popular national daily newspaper Bild, with a circulation of 1.42 million and 4.67 million respectively. It was part of an advertising campaign run by the company for the Lucky Strike brand; the campaign, launched in 1989, ran until September 2004 with more than 500 variants, showing one or more packets of cigarettes with a humorous slogan which often referred to a current event and the individual involved in that event. 10. At the applicant’s request the company gave a written undertaking to refrain from further publication of the advertisement in question with its heading referring to him, but refused to pay him the sum of 70,000 euros (EUR) which he had demanded for a “notional licence” (fiktive Lizenz). 11. The applicant applied to the Hamburg Regional Court for an order requiring the company to pay him EUR 100,000 for a notional licence. 12. On 3 September 2004 the Regional Court allowed the applicant’s application. It first of all noted that the use of the forename Dieter in the impugned advertisement was clearly a reference to the applicant’s name. It further noted that although the forename Dieter was very common and several well-known public figures shared it, the advertisement was obviously referring to the applicant in view of its other component elements. The Regional Court observed that the company’s advertising campaign regularly alluded to current events and the persons involved in them. It noted that there was no indication that at the time the advertisement had been published, another individual also called Dieter, like the applicant, had published a book that had had certain passages censored following court injunctions, or that any other book had prompted as much public debate upon publication as the applicant’s book had. 13. The Regional Court added that the company was entitled to rely on the right to freedom of expression as safeguarded by Article 5 § 1 of the Basic Law (see “Relevant domestic law and practice” below), a right that also extended to commercial advertising provided that its content contributed to shaping public opinion. In the court’s view, that applied to the impugned advertisement, which had commented humorously on the publication of the applicant’s book and had apparently advised him on how to write “super books” by striking through certain passages before publication. Given that the company had in this way called for the contents of a book to be properly checked prior to publication, the advertisement had, in the Regional Court’s view, raised a matter of public interest. 14. The Regional Court then 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. As everyone had the right to decide whether or not to allow his or her name to be used for advertising purposes, personality rights protected individuals against the unlawful use by third parties of their names in the context of advertising. Inasmuch as the company had argued that the applicant had himself caused the event to which the advertisement referred, that fact was not capable of depriving the applicant of protection, but it could result in a lesser degree of interference and a higher level of protection of freedom of expression. 15. The Regional Court held that when balancing the competing interests in the case, 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. It noted in particular that the advertisement had primarily pursued commercial aims, that is to say increasing the sales of a cigarette brand, and that it had above all been intended to entertain the public, without providing any real contribution to shaping public opinion. Lastly, it noted that neither the content of the advertisement (Aussagegehalt) nor the applicant himself had any direct link with the product advertised. It concluded that the applicant was entitled to claim compensation for exploitation of his fame for commercial purposes, having regard, inter alia, to the judicial decisions given in cases concerning a tennis player (Boris Becker) and a politician (Oskar Lafontaine). 16. The Regional Court further held that the damage suffered by the applicant corresponded to what the company and the applicant would reasonably have agreed on as the cost of the licence if a contract had been signed. The purpose 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. The Regional Court explained that the cost of such a licence should be freely determined on the basis of all the relevant circumstances, including the following criteria: the person’s fame and brand image (Imagewert), the attention attracted by the advertisement, the extent of its distribution and the role assigned to the person in the advertisement. Applying those criteria and taking account of the amounts awarded in similar cases concerning persons as well known as the applicant had been at the time of publication of the advertisement relating to them (see paragraph 14 above), the Regional Court considered it appropriate to award the applicant EUR 100,000. To that end it took into consideration the fact that the advertisement mocking the applicant had taken up a full page in publications such as Der Spiegel magazine, and had been seen by more than six million readers. However, it also had regard to the fact that the advertisement had included neither a picture of the applicant nor his surname, so that a number of people would have been unable to make a connection between the advertisement and the applicant. 17. On 29 November 2005 the Hamburg Court of Appeal upheld the findings of the Regional Court as to the existence of unlawful interference and the outcome of the balancing exercise between the competing rights, while pointing out that the fact that the company had used the applicant’s forename for commercial purposes, in order to increase sales of its cigarettes, meant that the protection of the applicant’s personality rights prevailed from the outset. However, it reduced the fee to be paid for the notional licence in accordance with the principle of unjust enrichment to EUR 35,000. The advertisement had not been designed to debase the applicant and, on account of its humorous approach had not had any negative impact on him. Moreover, in publishing his book the applicant had deliberately sought the limelight. The Court of Appeal concluded that there had been an unlawful interference with the applicant’s right to protection of his personality rights, adding that no other conclusion could be reached from the standpoint of the right to freedom of expression in artistic matters, on which the company had relied. 18. As regards pecuniary damage, the Court of Appeal noted that the peculiar aspect of the case was that the impugned advertisement had, in a humorous manner, used only part of the applicant’s name without his consent, and that it had only been published once in two periodicals. Endorsing the findings of the expert whom it had commissioned to assess the damage suffered by the applicant, it deemed it appropriate to set the amount of damages at EUR 35,000. 19. The Court of Appeal did not grant leave to appeal on points of law, holding that the case was not of fundamental importance, given that a decision was not required from the Federal Court of Justice in the interests of either the development of the law or consistency in its application. 20. The company applied for leave to appeal on points of law. On 26 October 2006 the Federal Court of Justice granted the application. 21. In a judgment of 5 June 2008 (no. I ZR 223/05) the Federal Court of Justice quashed the Court of Appeal’s judgment. It held that the applicant’s claim was ill-founded because the company 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 freedom of expression as guaranteed by Article 5 § 1 of the Basic Law. 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. 22. 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 no infringement of the non-pecuniary components of those rights had been alleged. 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. 23. The Federal Court of Justice noted that the impugned advertisement referred humorously to the fact that the applicant had published a book. It considered that even though the company had merely referred to that event as part of an advertising campaign, it could still rely upon the specific protection of freedom of expression. It held that the fact that the advertisement – by using the applicant’s forename and alluding to the book which he had published – had been mainly intended to increase sales of a 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. 24. 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).” 25. The Federal Court of Justice held that the impugned advertisement had not given such an impression. It had concerned a subject of public interest in so far as it referred in a humorous fashion to the events surrounding the publication of the applicant’s book, shortly after that event and in the context of the ensuing debate in the media. The advertisement had therefore been part of the ongoing public debate on the circumstances surrounding the applicant’s publication of his book. The Federal Court of Justice emphasised that above and beyond the derisive, satirical allusion to that event, which was already known to the public, the advertisement had been devoid of any degrading or negative content in relation to the applicant. Furthermore, 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 the applicant simply because it was promoting a brand of cigarettes. 26. The Federal Court of Justice agreed, moreover, with the Court of Appeal that the applicant had sought public attention for his own publicity needs. It found 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. There were therefore no grounds for examining whether the company could also have relied on the right to freedom of expression in the artistic field. 27. The Federal Court of Justice concluded that in the absence of a violation of the pecuniary components of his right to protection of his personality rights, the applicant could not claim an entitlement to a notional licence. 28. On 7 April 2009 the Federal Constitutional Court declined to accept for adjudication a constitutional appeal by the applicant (no. 1 BvR 3143/08), adding that no reasons would be given for its decision. The applicant received the decision on 24 April 2009. ...