Privacy and Personality, Politicians and Stars


Article by Rohan Massey and Kathrin Tauber

One could be forgiven for thinking that the sanctity of marriage is one of the few things chancellor Gerhard Schrˆder of Germany and the Hollywood A-list couple Michael Douglas and Catherine Zeta-Jones have in common, however, the recent cases that they have brought in Germany and the UK, respectively, highlight the approaches being taken in Europe towards the individual's right to protect their privacy from unwanted media attention.

Germany and the UK have historically taken different paths on the development legal rights to protect individuals. Germany has followed the US approach of adopting a statutory personality right. The UK, on the other hand, has not legislated on privacy or personality instead it has seen the judicial development of the laws of confidence and data protection.

The current legal dilemma surrounding the issue of privacy in Europe has arisen because actions being brought in the courts of EU member states must be considered in light of the European Convention on Human Rights. In actions regarding an individual's privacy there is often a need to balance Article 8 of the European Convention on Human Rights, which grants the right to respect for private and family life, and Article 10, which grants the right to freedom of expression.

Personality Right?

In Germany the personality right is a statutory right granted in section 1 para. 1 and section 2 para. 1 of the German Constitution (Grundgesetz). The German right is a broad one, granting the individual the right to control the development and exploitation of his own personality, with different levels of protection being given to the individual, private and intimate aspects of a person's life. Any illegal interference with the personality right entitles the individual to seek compensation and, where necessary, an injunction according to sections 823 and 1004 of the German Civil Code (B¸rgerliches Gesetzbuch).

For a claim of infringement of the personality right to be successful there has to be comprehensive consideration of the parties' affected interests. This is achieved by comparing the constitutionally guaranteed freedom of speech and the personality right of the offended. This balance is weighed on the facts of the case. It should be noted that the balance is subjective with the German courts generally lowering the threshold of protection from media intrusion granted to individuals in the public eye. This subjective...

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