Personal rights (Germany)

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The right of personality is a basic right that serves to protect a person's personality from encroachment on their sphere of life and freedom. The right of personality as such is not expressly regulated in German law . Initially, only individual special personal rights such as the right to respect for one's honor , the right to a name or the right to one's own picture were expressly regulated by law. Increasingly, however, it became apparent that this did not provide comprehensive protection against the increasing impairment of personal life and freedom.

Since the 1950s, the general right of personality (APR) with comprehensive protection of personality has been derived from Article 2, Paragraph 1 of the Basic Law ( free development of personality ) in conjunction with Article 1, Paragraph 1 of the Basic Law ( human dignity ) in judicial training since the 1950s . It was further elaborated and concretized in a plethora of judgments and is nowadays generally recognized under customary law.

A distinction must be made between individual personal rights regulated by special law, such as moral rights, from general personal rights .

Constitutional foundations

The Basic Law does not expressly guarantee the general right of personality like the Paulskirche constitution of 1849 and the Weimar constitution of 1919. For civil law, however, the Reichsgericht recognized the general right of personality as an independent legal position as early as 1898. This was noticed, for example, in a decision to publish Richard Wagner's letters . The Federal Court of Justice took up this case law . Shortly after the Basic Law came into force in 1949, he based the right of personality on the right to free development of the personality ( Art. 2 Paragraph 1 GG) and the protection of human dignity ( Art. 1 Paragraph 1 GG).

The Federal Constitutional Court took up the development of civil jurisprudence and recognized the right of personality as a constitutionally guaranteed fundamental right . It emphasized the importance of the general right of personality in its Lebach judgment of 1973. The Federal Constitutional Court sees it as a task of the general right of personality,

“To guarantee the narrower personal sphere of life and the preservation of their basic conditions in the sense of the supreme constitutional principle of 'dignity of the human being' (Article 1, Paragraph 1 of the Basic Law), which cannot be conclusively captured by the traditional, concrete guarantees of freedom; This need exists in particular with a view to modern developments and the associated new threats to the protection of human personality. "

- BVerfG

As a fundamental right, the general right of personality primarily serves to ward off sovereign interference in the legal sphere of private individuals. As constitutional law, however, it also affects subordinate norms, such as civil law . This indirect third-party effect is of great practical importance , for example in the area of reporting . The admissibility of reporting without or against the will of the person concerned is largely judged on the basis of a weighing up of constitutional assets, which include in particular the right to privacy and freedom of opinion and the press ( Art. 5 Paragraph 1 GG).

Protection area

The general right of personality protects private individuals from interfering with their personal sphere. To this end, the fundamental right guarantees a sphere of freedom that sovereigns may only intervene under certain conditions. This sphere is called the protection area . If the sovereign intervenes in this and this is not constitutionally justified, the general right of personality is violated.

Jurisprudence differentiates between the personal and factual areas of protection. The personal protection area determines who is protected by the fundamental right. The objective area of ​​protection determines which freedoms are protected by the fundamental right.

Personally

Neither Art. 2 GG nor Art. 1 GG restrict the group of fundamental rights holders, so that the general right of personality protects everyone. The protection area thus covers living natural persons . The protection of the privacy of the dead takes place through the post-mortem right of personality , which is an expression of human dignity alone.

Whether and to what extent associations of persons , in particular legal persons under private law, can be carriers of general personality rights is a matter of dispute in jurisprudence. According to Article 19, Paragraph 3 of the Basic Law, fundamental rights apply to associations of persons insofar as they are essentially applicable to them. Due to the extraordinarily broad objective scope of protection of personality rights, this cannot generally be affirmed or denied. Rather, the capacity for fundamental rights is assessed individually for the individual guarantees of personal rights. The decisive factor here is whether the respective guarantee is linked to human dignity to which only natural persons can be entitled. The essential applicability in the case law, for example for the right to speak, was affirmed. On the other hand, the applicability for protection against the coercion of self-infliction was denied.

Factual

The objective scope of protection of the general right of personality is extremely broad. The Federal Constitutional Court describes it as an autonomous area of ​​private life for the development of one's own individuality. According to jurisprudence, it has in particular a gap-closing function: it is intended to protect those freedoms that are not adequately protected by more specific freedoms. It should also make it possible to ward off new types of dangers to the personality for which the legislature has not created any regulations. Therefore, the objective area of ​​protection of personal rights is constantly being developed through case law.

Legal studies have developed different methods to systematize the case groups of personality rights. A common form of representation distinguishes between self-determination, self-preservation and self-expression.

Self-determination

The right to self-determination protects the right to decide on essential aspects of personality development. This includes, for example, the right to choose your own name.

The right to informational self-determination , which was developed by the Federal Constitutional Court in the census ruling of 1983, is also protected . This protects the right to determine the disclosure and use of data that allow conclusions to be drawn about yourself. The court created this right to prevent the systematic collection of personal data from preventing citizens from exercising their freedoms. The right to informational self-determination is therefore the basis of German data protection law .

In its ruling on the online search in North Rhine-Westphalia of 2008, the Federal Constitutional Court continued to create the basic right to guarantee the confidentiality and integrity of information technology systems . This is a further development of the right to informational self-determination. It protects data that is stored in an information technology system and enables conclusions to be drawn about a person from being accessed by third parties. In particular, the basic right is directed against the secret infiltration and spying of electronic systems, for example by a Trojan . This is provided, for example, in Section 49 of the Federal Criminal Police Office Act and Section 100b of the Code of Criminal Procedure . The court saw a protection gap in the previous protection of fundamental rights: the inviolability of the home ( Art. 13 GG) only develops protection if the system is located within a home. The secrecy of telecommunications ( Art. 10 GG) protects only the submission process, not, however, such data already stored on a medium. After all, informational self-determination primarily protects individual personal data and therefore cannot prevent a personal image from being created from a large number of data that are in themselves not very meaningful. In jurisprudence, the court's endeavors to protect is welcomed, but mostly disputed that the right to informational self-determination does not offer adequate protection.

Furthermore, the right to self-determination leads to a right to knowledge of one's own parentage . It also guarantees offenders the right to rehabilitation . It also guarantees sexual self-determination. Finally, in order to protect his development, a minor is entitled to a debt-free age of majority .

Self-preservation

Self-preservation includes the protection of private life. With regard to spatial privacy, this is already done through the protection of the home according to Art. 13 GG. The right to self-preservation complements its protection. For example, it protects the confidentiality of diary entries and medical records .

Self-presentation

The right to self-expression ensures that individuals can determine how they present themselves in public. It therefore protects him from unwanted, falsified or dishonorable presentation by third parties.

To protect self-portrayal, for example, the right to one's own image , which is defined in more detail in the Art Copyright Act , is one. According to this, the individual can determine whether and in what way his portraits are published.

The right to one's own word is also protected. This prohibits, for example, statements from being made by someone else without the will of the person concerned. It also protects the confidentiality of the conversation.

Furthermore, the right to self-portrayal also gives rise to the right to decide on the publication or publicly effective mentioning of one's own name.

Finally, the right to self-expression guarantees the protection of personal honor. For example, it protects against insults ( Section 185 of the Criminal Code ) and other dishonorable acts.

Furthermore, the general right of personality in connection with the principle of good faith ( Section 242 of the Civil Code) gives rise to a right to continued employment in the employment relationship .

Fundamental rights competitions

If the area of ​​protection of several fundamental rights is affected in one issue, these are in competition with one another. The general freedom of action (Art. 2 Paragraph 1 GG) is superseded by the general right of personality as lex generalis . The general right of personality can be superseded by rights of freedom that protect parts of the personality in a special way. This applies in particular to the protection of the home (Art. 13 GG). Other freedoms stand alongside the general right of personality.

Intervention

An encroachment occurs when the guarantee content of a basic right is shortened by sovereign action. This can be done, for example, through government surveillance measures or through honorable statements by sovereigns. In the context of civil law court proceedings, judgments have the quality of intervention if they impose the obligation on the person responsible for the personality to tolerate a personality authorization by third parties, such as reporting.

The quality of the intervention does not apply if the person concerned consents to the impairment . This is the case, for example, if a person starts a telephone call knowing that they are being eavesdropped by a third party.

Furthermore, according to the case law, measures which only affect the legal sphere of the citizen for a very short period of time have no quality of interference. This was assumed, for example, when data was immediately compared with a database after its automated collection and then deleted.

Justification of an Intervention

If there is a sovereign interference with the general right of personality, this is lawful if it is constitutionally justified. Whether and under what conditions an intervention can be justified depends on the type of intervention.

Since the right to personality is partly rooted in inviolable human dignity, an interference that affects the core area of ​​private life cannot be justified. This intimate area is withdrawn from official access, which is why an intervention is always illegal. If, on the other hand, this area is not affected, the right of personality may be encroached upon in accordance with the barriers set out in Art. According to this, the protection of the right of personality finds its limit in the protection of the rights of others, the constitutional order and the moral law. The restriction of personal rights through laws in the formal sense is of particular practical importance .

The question of whether the interference respects the principle of proportionality is of great importance for assessing the legality of an interference with fundamental rights . According to this, the goal pursued by the intervention must be in an adequate relationship to the impairment of the person concerned. This results in particular as a result of a weighing of interests. This assumes that the conflicting interests are weighted. In order to systematize the weighting process in relation to the general right of personality, case law has developed the theory of spheres. According to this, the protective dimensions of personal rights can be divided into areas to be protected to different degrees:

The public sphere is the area in which the individual consciously turns to the public, for example when he consciously comes out and expresses himself publicly. This sphere enjoys the weakest protection.

The social sphere is the area in which the human being as a "social being" is in exchange with other people. This particularly includes professional, political or voluntary work. This sphere is - e.g. B. against publications - relatively weakly protected, so that encroachments are generally permitted, unless there are exceptional circumstances that outweigh the protection of privacy.

On the one hand, privacy is defined spatially (life at home, in the family, private life), but on the other hand it is also objective (facts that typically remain private). Interventions in this sphere are generally inadmissible unless, in exceptional cases, circumstances arise that make the opposing interests outweigh the interests (e.g. in the case of press releases from the private life of politicians, if there is an overriding public interest in information).

Civil law protection of personal rights

Injunction

A violation of the general personal right, in particular through reporting in the media or in the case of defamatory criticism , can result in a claim for damages ( Section 823 (1) BGB in connection with the general personal right as "other right") or an injunction or right to rectification ( § 1004 BGB). The right to compensation for non-pecuniary damage is only granted by case law in the event of particularly serious violations of personal rights. The sums of compensation for pain and suffering have now reached considerable heights for reasons of deterrence. In 1996 the Hanseatic Higher Regional Court in Hamburg awarded DM 200,000 in  compensation for pain and suffering for a fictitious interview.

Compensation for damages ("compensation for pain and suffering")

In the event of a serious APR violation, the claim for damages may include monetary compensation for non-pecuniary damage. This claim for damages arises from § 823  I BGB “other law” in connection with Art. 1 Abs. 1 GG, Art. 2 Abs. 1 GG.

Individual areas of personal rights are particularly protected by law, for example personal honor in § 185  ff. StGB , the name ( § 12 BGB), the right to one's own image ( § 22  ff. KunstUrhG ) or copyright ( UrhG ). These are special personal rights . A violation of these protective laws can lead to a claim for damages under § 823  II BGB in connection with the respective violated protective law.

Mention of parties involved in legal proceedings on the Internet

The public announcement of court judgments on the Internet with the names and addresses of those involved in the proceedings does not necessarily constitute an unlawful violation of the personal rights of those affected. However, the names of the lawyers may not be denounced. The names and addresses of the parties and other parties involved in the proceedings therefore do not have to be anonymized (blackened or deleted) in publications.

Right of personality after death

Even after the death of a person, human honor and dignity remain protected. The Federal Constitutional Court derived the post-mortem right of personality in its Mephisto decision from Article 1, Paragraph 1 of the Basic Law.

Corporate personality law

Whether companies, i.e. legal entities and partnerships, also have personal rights is a matter of great dispute within German law. The Federal Court of Justice also grants companies such a "corporate personality right". According to the court, this is intended as “other law” within the meaning of Section 823 (1) of the German Civil Code (BGB) to protect companies' claim to social validity and respect. The Federal Constitutional Court, on the other hand, has expressly left the question of whether a company can have its own personal right open.

The fact that companies can also have a right of personality is primarily disputed because the general right of personality is derived from Article 1, Paragraph 1 of the Basic Law - human dignity - in conjunction with Article 2, Paragraph 1 of the Basic Law. Legal persons cannot benefit from human dignity, however, because the fundamental rights of the Basic Law protect legal persons according to Article 19.3 of the Basic Law only to the extent that the respective fundamental right is essentially applicable to legal persons. The unanimous opinion is that the applicability of human dignity to legal persons is rejected.

Proponents of corporate personality law, on the other hand, argue that legal persons and partnerships are also capable of a social respect that needs to be protected. Corporate personality law is therefore often used as an argument by companies in order to take action against unpopular media reporting. Compared to more specific protective regulations, it has the advantage that its prerequisites are easier to explain than, for example, the prerequisites of competition law, whichever a competitive relationship requires, or those of Section 826 of the German Civil Code, which presupposes willful immoral damage.

Even according to the opinion of the Federal Court of Justice, which affirms the existence of a corporate personality right, it basically applies that this only offers subsidiary protection against impairment if more specific regulations, such as § 824 and § 826 BGB or the standards of the law against unfair competition ( UWG ), do not offer any protection in individual cases. The relationship between corporate personality law and the so-called " right to the established and exercised commercial enterprise " is also unclear . While the courts apply these two legal institutions side by side, the legal literature sometimes takes the view that corporate personality law is part of, or even congruent with, the law governing business operations.

An analysis of the cases decided by the jurisprudence has shown that in view of the already existing protection for commercial companies based on more specific regulations, "recourse to an independent 'corporate personality right' [...] is completely unnecessary". Protection gaps, however, can be identified in the area of ​​non-economic associations. Insofar as no more specific fundamental rights applicable to companies in accordance with Article 19.3 of the Basic Law are relevant, an "external representation right" functionally corresponding to corporate personality law can be considered based on Article 2.1 of the Basic Law.

See also

literature

  • Christoph Degenhart : The general right of personality, Art. 2 I in connection with Art. 1 I GG . In: Juristische Schulung , 32nd year, Volume 1, 1992, pp. 361–368.
  • Horst-Peter Götting, Christian Schertz, Walter Seitz (eds.): Handbook of personality rights . Verlag CH Beck, Munich 2008, ISBN 978-3-406-57049-0 .
  • Stefan Holzner: Freedom of expression and corporate personality rights: new criteria for weighing up necessary? . In: MMR-Fokus 4/2010, p. XI (= MMR-Aktuell 2010, 298851).
  • Ansgar Koreng: The “corporate personality right” as an element of commercial reputation protection . In: Commercial legal protection and copyright 12/2010, p. 1065.
  • Annina Pollaczek: Freedom of the press and personal rights . VDM, Saarbrücken 2007, ISBN 3-8364-0788-4 .
  • Sascha Sajuntz, The Development of Press and Freedom of Expression in 2017 , NJW 2018, 589
  • Fabian Steinhauer: Your own picture. Constitutions of the image law discourses around 1900 . Scientific treatises and speeches on philosophy, politics and intellectual history. Volume 74. Duncker & Humblot. Berlin. 2013. ISBN 978-3-428-84051-9 .
  • Thorsten Süß: The Bismarck decision of the Reichsgericht (from today's perspective) - or: Finding the right law on the eve of the BGB , JURA 2011, pp. 610–616.
  • Jürgen Vahle: The general right of personality - features of interference and claims for protection . In: New Economic Letters (NWB) . No. 5/07 of January 29, 2007, ISSN  0028-3460 .

Web links

Individual evidence

  1. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 623.
  2. ↑ RGZ 41, 43 .
  3. ↑ BGHZ 13, 334 (338).
  4. ↑ BGHZ 26, 349 (354).
  5. ↑ a b BVerfGE 35, 202 : Lebach.
  6. ↑ BVerfGE : Eppler.
  7. ↑ Herbert Bethge: Art. 5 , Rn. 30a. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  8. ↑ Hans Jarass: Preparation before Art. 1 , marginal no. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  9. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  10. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 626.
  11. ↑ Mario Martini: The general right of personality as reflected in the more recent case law of the Federal Constitutional Court . In: Juristische Arbeitsblätter 2009, p. 839 (842).
  12. ↑ Kay Windthorst: Art. 2 , Rn. 73. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  13. ↑ BVerfGE 106, 28 (43) : listening device.
  14. ↑ BVerfGE 95, 220 (244) : Obligation to record.
  15. ↑ BVerfGE 117, 202 (225) : Determination of paternity.
  16. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 628.
  17. ↑ Kay Windthorst: Art. 2 , Rn. 77. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  18. ↑ BVerfGE 109, 256 (266) : (First) married name.
  19. ↑ BVerfGE 123, 90 (102) : Multiple names.
  20. ↑ BVerfGE 65, 1 (43) : Census.
  21. ↑ BVerfGE 120, 274 (320) : Online search.
  22. ↑ Ulf Buermeyer: The "online search". Technical background of covert sovereign access to computer systems . In: Höchst Judicial Jurisprudence in Criminal Law 2007, p. 154.
  23. ↑ BVerfGE 120, 274 : Online search.
  24. ↑ Mario Martini: The general right of personality as reflected in the more recent case law of the Federal Constitutional Court . In: Juristische Arbeitsblätter 2009, p. 839 (840).
  25. ↑ Martin Eifert: Informational self-determination on the Internet - The BVerfG and the online searches . In: New Journal for Administrative Law 2008, p. 521.
  26. ^ Gabriele Britz: Confidentiality and Integrity of Information Technology Systems . In: The Public Administration 2008, p. 411 (413).
  27. ↑ BVerfGE 117, 202 (226) : Determination of paternity.
  28. ↑ BVerfGE 47, 46 (73) : Sex education classes.
  29. ↑ BVerfGE 72, 155 (170) : Limits of parental powers of representation.
  30. ↑ BVerfGE 80, 367 (374) : Diary.
  31. ↑ BVerfGE 32, 373 (379) : Medical confidentiality.
  32. ↑ BVerfGE 101, 361 (381) : Caroline of Monaco II.
  33. ↑ BVerfGE 34, 269 : Soraya.
  34. ↑ BVerfGE 54, 208 (217) : Böll.
  35. ↑ a b BVerfGE 54, 148 (155) : Eppler.
  36. ↑ BVerfGE 34, 238 (246) : tape.
  37. ↑ BVerfGE 97, 391 (399) : Accusation of abuse.
  38. ↑ Kay Windthorst: Art. 2 , Rn. 101. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  39. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 8, Rn. 1.
  40. ↑ BVerfGE 106, 28 (45) : listening device.
  41. ↑ BVerfGE 120, 378 (399) : Automated license plate recognition.
  42. ↑ BVerfGE 34, 238 (245) : tape.
  43. ↑ BVerfGE 75, 369 (380): Strauss caricature.
  44. ↑ BGHZ 26, 349 - Herrenreiter case .
  45. ↑ BVerfGE 34, 269 [285] - Soraya judgment .
  46. ↑ OLG Hamburg, Caroline v. Monaco versus Bunte; The mirror 31/1996 .
  47. ↑ OLG Hamburg , judgment of February 16, 2010 - 7 U 88/09 .
  48. ↑ OLG Hamburg , decision of July 9, 2007 - 7 W 56/07 .
  49. ↑ BVerfGE 30, 173 - Mephisto decision .
  50. ^ BGH , judgment of March 11, 2008 - VI ZR 7/07 , NJW 2008, p. 2110.
  51. ↑ BVerfG, decision of September 8, 2010 - 1 BvR 1890/08 , NJW 2010, p. 3501 [3502] (“Gen-milk”); See also BVerfG, decision of May 3, 1994 - 1 BvR 737/94 , NJW 1994, p. 1784.
  52. ↑ Ansgar Koreng: The “corporate personality right” as an element of commercial reputation protection . In: Commercial legal protection and copyright 2010, p. 1065 (1069).
  53. ↑ Ansgar Koreng: The “corporate personality right” as an element of commercial reputation protection . In: Commercial legal protection and copyright 2010, p. 1065 (1070).