Headwind from Europe: The New Position of the German Courts on Personality Rights after the Judgment of the European Court of Human Rights

Abstract

In Germany, as in the U.S., the relationship between protection of privacy and freedom of expression has been subject of many decisions. In the U.S. a right of privacy was famously conjured out of common law precedents by Warren and Brandeis. Over the course of a century, it developed into a right of publicity, which gave celebrities the power to prevent the commercial use of their names, endorsements, images, voices, and other attributes of personality by unauthorized third parties. In defining such a right, much attention has been focused on separating what is commercially unacceptable from what is desirable free speech under the First Amendment of the U.S. Constitution. It has also been important to settle the duration of such rights. Publicity rights as a commercial value of a person's identity are therefore well established in the U.S., although state laws vary widely as to the extent of protection. In Germany, due to the constitutional background of the personality right, the balance between public and private interests still operates differently. After the European Court of Human Rights (ECHR) in 2004 convicted the German Federal Republic of violating the Convention for the Protection of Human Rights Fundamental Freedoms, the German Federal Court (Bundesgerichtshof—BGH) took the opportunity to think over its previous position about image rights. Three judgments were examined by the German Constitutional Court (Bundesverfassungsgericht—BVerfG) and one of them was reversed.

The Right to Be Forgotten in the European Perspective

“…The discussion about the difference in perception of the right to be forgotten in the EU and USA is largely due to a different understanding of the relationship between privacy and freedom of expression (see Werro, 2009;Coors, 2010;Rosen, 2012;Rustad & Kulevska, 2015;Neville, 2017). There are also many doubts about the possibility of considering the right to be forgotten as global, starting from the peculiarities of perceiving it in non- European legal doctrines, continuing to harmonize points of view on the scope of this right (Bennett, 2012) and ending with the technical ability to provide protection of the law distributed from the EU (Shim, 2019).…”