Esra (novel)

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Esra is an autobiographical romance novel by Maxim Biller . The work published by Kiepenheuer & Witsch in 2003 , which contains intimate details of the author's unhappy love for a Turkish woman living in Germany, was the starting point of a legal dispute that led to the publication of the novel being banned.

content

The novel deals with a complicated love story of the protagonists, Adam of Jewish descent and Ezra of Turkish descent. The relationship between the two is marked by jealousy and suspicion through to paranoia. Both separate and come back together. Ultimately, the relationship fails because of Esra's pregnancy. In addition to the complicated personalities, the relationship is also shaped by the respective cultural background and family background of the two main characters. The hateful relationship between Adam and Ezra's mother plays a special role.

The novel takes up a variety of details from the lives of the real people involved in the litigation later in the novel, for example high-ranking prizes actually awarded. In this way he made Ezra and her mother identifiable. At the same time, the novel takes up its own effect, for example when Esra explains to Adam that she does not want to find herself in his columns or books with intimate details. This can be seen in connection with Biller's literary concept that literature should reflect life. However, in not unimportant key scenes, the novel shows deviations from the real models, including those that are themselves dishonorable. The reader cannot see where real aspects of real characters are actually described and where this is not the case and the fiction begins.

Nils Minkmar considers Esra to be Maxim Biller's masterpiece.

Court dispute

Injunction

First instances

The publication of the work was forbidden in 2003 shortly after it was published because the Munich Regional Court I saw the personality rights of the role model for "Esra", Ayşe Romey , an actress living in Germany, and her mother, Birsel Lemke , who was also in the public eye , violated. Even a later version, in which clear references to the true identity of the protagonists were deleted, was not allowed to be sold, because the media attention surrounding the book and the prohibition of publication meant that the personalities behind the changed names were also without clear references to certain, for example The services of those affected had become decipherable for everyone .

The Munich Higher Regional Court confirmed the regional court's decision on appeal .

Federal Court of Justice

The Federal Court of Justice (BGH) confirmed the judgment of the Munich Higher Regional Court, which was challenged by the appeal . He stated that the action was admissible although the defendant had issued a cease and desist declaration. In the event of a violation of personal rights , it is necessary that such a declaration cover all possible aspects of a personal rights violation so that the action becomes inadmissible.

In the matter, the BGH weighed the freedom of art granted to the author by Art. 5 Para. 3 GG against the general right of personality (Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 GG) of the actress and her depicted as "Esra" Mother off. He came to the conclusion that in the specific case the personality rights of the actress weighed heavier. It is not necessary that - as was declared decisive in the Mephisto decision of the Federal Constitutional Court - the portrayed persons “could easily be recognized by a not insignificant readership” as role models for the character in the novel. Rather, it is sufficient for a violation of general personal rights that the person concerned becomes “recognizable as the object of a media presentation”. For this purpose, it is sufficient if the person is sufficiently recognizable, at least for part of the group of readers and addressees, without naming them based on the circumstances communicated. For this purpose, the reproduction of partial information can be sufficient, from which the identity for the factually interested readership can be easily determined or easily ascertained.

The ruling of the Federal Court of Justice was criticized in the book industry because it led to a restriction of artistic freedom and ultimately the censorship abolished in accordance with Article 5, Paragraph 1, Clause 3 of the Basic Law would be reintroduced. Ultimately, the basic right of artistic freedom is inadmissibly restricted since the artist's inspiration from reality is not sufficiently taken into account. Even the Mephisto decision of the Federal Constitutional Court goes too far in this regard; The BGH ruling restricts artistic freedom even further.

Federal Constitutional Court

At the end of 2005 the publisher filed a constitutional complaint against the ban. On June 13, 2007, the Federal Constitutional Court rejected the complaint with five to three votes (BVerfGE 119, 1). The reason given was that the novel violated the personal rights of the ex-lover Billers with its detailed description of a love affair. In contrast to previous instances, however, it was emphasized at the same time that the mother of the beloved, who also recognized herself in one of the characters in the novel, had no right to omission.

The majority of the Senate proceeded in two steps in order to weigh up the personal rights of the two women with the author's basic right to artistic freedom from Article 5 III of the Basic Law. First, the question was investigated whether the right of personality could be affected. For this purpose, the possible recognizability of the real person in the form of the fictional protagonist was taken into account, and concern in both cases was initially affirmed. Subsequently, reference was made to the great importance of artistic freedom, which could possibly justify this impairment of personal rights through the interaction of basic rights . An art-specific approach was used to determine the reality of the work. A fictionality of the work is assumed in favor of the author, insofar as he himself does not claim factuality. This could be different if it emerged from the work itself that the author made a claim to the truth about his descriptions.

In the case of the mother, according to the court, this fictionality should have emerged clearly to the reader. Therefore, the impairment of the right of personality was judged to be justified by artistic freedom. In the case of the daughter, on the other hand, the fictionality presumption did not apply, as there was an impairment of the essence of personal rights, the intimate sphere, through descriptions of sexual life that the reader had to believe to be true. This results in the following formula: The more an artistic representation has specially protected dimensions of the right of personality [i.e. H. the intimate sphere], the stronger the fictionalization has to be in order to rule out a violation of personal rights.

This legal justification met with resistance in the discerning Senate itself. Three judges issued separate opinions . The judges Hohmann-Dennhardt and Gaier pointed out that the majority of the Senate inconsistently applied its own criteria, on the one hand demanding an art-specific standard of reality for the work, but then in the case of the daughter only on the recognizability of the person in connection with the representation more intimately Shut down details, i.e. make a purely quantitative comparison of the work with reality. Richter Hoffmann-Riem pointed out that an art-specific reality standard should always be applied, since art detaches itself from the context of intersubjectively provable reality and thus creates its own level of interpretation and reality. This applies even more to “fiction” in the narrower sense, i. That is, works sprung from the pure imagination of an author that happened to resemble reality. Only if an author does not even try to reach a level of aestheticized reality does the right of personality take precedence - because then the work is certainly not covered and protected by the constitutional concept of art.

Critics saw the judgment as a weakening of artistic freedom and feared a precedent for future, similar cases.

Action for damages

The Munich District Court I sentenced in a civil case former life companion, a 2008 Biller and the publisher, Biller on 13 February damages to be paid in the amount of 50,000 euros. The publishing house Kiepenheuer & Witsch rated the judgment as "grotesquely inappropriateness". In the FAZ Richard Kämmerlings also saw positive things in the judgment: The fact that “Esra” was treated as a work of literature in general and not as a pure diatribe - that remains a partial success for the author and the publisher. It should calm the mind a little that in the future you will have to look at a novel in court thoroughly and with an artistic understanding before reaching a judgment. Ulrich Kühn, on the other hand, criticized the NDR for the fact that the regional court had just disregarded the fact that it was a novel and not a non-fiction book. A lawsuit in the same amount by the mother, however, was rejected by the Federal Court of Justice.

In July 2008, the Munich Higher Regional Court overturned the regional court's decision. This decision was confirmed by the BGH in November 2009 . As a result, the book remains banned, but the author or the publisher do not have to pay any compensation for pain and suffering.

Public discussion

After the ban on the publication of the novel and the plaintiffs claiming 100,000 euros for damages, 100 personalities from German-speaking cultural life declared their solidarity with Maxim Biller. Among others, the authors Günter Grass , Elfriede Jelinek , Feridun Zaimoglu , the directors Peter Zadek , Luc Bondy , Helmut Dietl and the actresses Iris Berben , Senta Berger and Idil Üner signed the appeal initiated by Gina Kehayoff. In the discussion, on the other hand, it was also stated that the protection of the intimate sphere is one of the most vulnerable goods and that the novel ultimately does not aim at similarities, but rather at conscious exposure and violation of the intimate sphere as well.

Some literary scholars defend the court decisions. They point out that comparisons with Manns Buddenbrooks or with Goethe's Werther are incorrect and that from a fictional-theoretical perspective an absolute separation of the fictional and real world is not possible and is only asserted for ideological reasons.

The litigation- historical disputes that are cited as the forerunner of the Esra trial include the trial of Fritz Oswald Bilse's key novel From a small garrison (1903) and the dispute over Thomas Mann's Buddenbrooks (1901). The point of contention in these cases was always to what extent writers have the right to depict living people in literature.

literature

Editions of Esra

  • Maxim Biller: Esra (novel). Kiepenheuer and Witsch, Cologne 2003, ISBN 3-462-03213-5
    • A Danish edition was published in 2004 and a Hebrew edition in 2015.

Opinions: against the ban

  • Bernhard von Becker: Fiction and Reality in Novels. The key process surrounding the book "Esra" , Würzburg, Königshausen & Neumann 2006.
  • David-Alexander Busch: Roman prohibitions. On the limits of private censorship. In: Archive for Press Law 3 (2004). 203-211.
  • Christian Eichner , York-Gothart Mix: A misjudgment as a yardstick? On Maxim Billers Esra , Klaus Mann's Mephisto and the problem of artistic freedom in the Federal Republic of Germany, in: International Archive for Social History of German Literature, 32nd volume, 2nd issue, 2007, 183–227.
  • Anja Ohmer: Facts and Fiction: On the Authenticity Debate in Contemporary German Literature. In: drafts literary magazine of Switzerland, issue 39: Massiv 2004.
  • Anja Ohmer: Literature in court: censorship in Germany. In: Waspennest 134 Poverty and Wealth, Austria, March 2004.

Opinions: for the ban

  • Remigius Bunia : Fictitious Art. The Esra case and the barriers to artistic freedom, in: International Archive for the Social History of Literature, 32nd volume, 2nd issue, 2007, 161–182.
  • Remigius Bunia: Protection of minorities, not censorship. The limits of freedom of expression and artistic freedom, in: Merkur, Vol. 62, Issue 2, 2008, 103–111.

Definition of terms: not the novel is forbidden, but the book

  • Albert Meier : Artistic Freedom vs. Protection of privacy. Maxim Billers Esra between poetry and justice . In: Friedrich, Hans-Edwin (Ed.): Literature scandals. Frankfurt am Main - Berlin - Bern - Bruxelles - New York - Oxford - Vienna 2009, 217–230.

Summarizing presentations

  • Christian Reichel: Limits to artistic freedom through the protection of personality - On the Esra decision of the BVerfG; In: Art and Law Journal for Art Law, Copyright and Cultural Policy (KUR) 05/2008, p. 125ff .; preview
  • Uwe Wittstock : The Esra case. A novel in court. About the new frontiers of literary freedom. Kiepenheuer and Witsch, Cologne 2011. ISBN 3462600087
  • Sebastian Mehl: Fiction and Identity in the Esra Case. Multidisciplinary processing of legal proceedings; Lit Verlag, Münster 2014; ISBN 3643125364
  • Gunnar Pohl: True poetry. Criteria for balancing artistic freedom and personal rights using the example of Esra and Mephisto ; Peter Lang, Frankfurt am Main, 2014; ISBN 9783631653500

Individual evidence

  1. ↑ Richard Kämmerlings: Can Poetry Harm Life? , faz.net, January 4, 2007
  2. ↑ Richard Kämmerlings: Art Person - What Makes the Maxim Biller Case So Complicated , faz.net, April 28, 2003
  3. ↑ In a review of the book Biography by Maxim Biller in 2016
  4. ↑ Decision of the regional court printed in ZUM 2004, p. 234
  5. ^ BGH, judgment of June 21, 2005, Az. VI ZR 122/04
  6. ^ Uwe Wittstock: When judges judge novels , Welt online, June 14, 2007
  7. ^ Daniel Kehlmann: An author is destroyed , faz.net, July 24, 2006
  8. ↑ Christian Eichner, York-Gothart Mix: A misjudgment as a yardstick? On Maxim Billers Esra, Klaus Manns Mephisto and the problem of artistic freedom in the Federal Republic of Germany, expert opinion for submission to the Federal Constitutional Court, 2007 ( PDF file, 653 kB)
  9. ↑ The media lawyers Tobias Gostomzyk in the mirror October 16, 2008
  10. ↑ BVerfG, decision of June 13, 2007, Az. 1 BvR 1783/05 ( PDF file, 73 kB)
  11. ↑ Biller book forbidden - "This is a dark hour for artistic freedom", Spiegel online, October 12, 2007
  12. ^ Opinion of the publisher 2008
  13. ^ Richard Kämmerlings, A frightening judgment with reassuring detail , FAZ from February 14, 2008
  14. ^ A judgment against the Kunstfrehei , NDR, February 13, 2008 onlinetext from the Internet archive archive.today
  15. ↑ BGH: Second plaintiff to the novel "Esra" was sufficiently alienated , AFP, June 10, 2008, accessed on June 10, 2008
  16. ↑ No compensation for pain and suffering for one of the plaintiffs, kiwi-verlag.de, accessed on October 17, 2010 ( Memento of the original of May 24, 2009 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.kiwi-verlag.de
  17. ↑ Maxim Biller does not have to pay compensation for pain and suffering, Spiegel Online, accessed on October 17, 2010 or a press release from the BGH
  18. ^ Case "Esra" - Solidarity with Maxim Biller, faz.net, July 22, 2006
  19. ^ Ulrich Greiner: The rights of the person, Die Zeit, July 27, 2006
  20. ↑ Andreas Zielcke: Because they know exactly what they are doing , Süddeutsche Zeitung, October 16, 2003
  21. ↑ Bernd Seiler: Does the protection of artistic freedom make sense? Süddeutsche Zeitung, October 18, 2007, p. 14
  22. ↑ Remigius Bunia: Why does literary studies bother that literature has effects? Frankfurter Allgemeine Zeitung October 13, 2007, p. 39. Remigius Bunia: Protection of minorities, not censorship, Merkur, February 2008, pp. 103–111.
  23. ↑ See z. B. Dieter Borchmeyer, "Literature in front of a court: The booty, the right of personality, and the freedom of art", in: Frankfurter Rundschau of October 14, 2003; Joachim Feldmann, "Bilse and Biller: Courts should stay out of questions of art" , in: The Friday of October 24, 2003, The Germanist Michael Ansel in his lecture "Buddenbrooks, Bilse and Biller." , Evangelische Akademie Tutzing , February 2007.

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