Postmortem personal rights

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The post-mortem right of personality concerns the continuation of a protection of personality beyond the death of a person ( post mortem ) in Germany. As a personal right, it is not legally fixed.

Situation in Germany

With regard to the legal effect, a distinction must be made between basic rights and simple laws. The (basic) right to informational self-determination as well as the other manifestations of the general personal right from Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law end with the death of a person. Even simple legal provisions such as naming rights or data protection generally end with the death of a person.

The legislature can determine in simple laws that special personal rights also take effect after death. He has done this, for example, in the Copyright Act with regard to moral rights, whereby commercial exploitation remains protected for a certain period after the author's death.

About § 189 of the Criminal Code which is insulting the memory of the dead prohibited.

Post-mortem protection of privacy

In terms of fundamental law, post-mortem protection of personality arises exclusively from human dignity according to Article 1, Paragraph 1 of the Basic Law (which is why the term post-mortem personality is quite misleading in this regard): The claim to value and respect initially persists, but fades over time.

In a decision regarding the painter Emil Nolde - it was about two forged watercolors with Nolde's alleged signature in the possession of a collector, which the Nolde Foundation refused to publish after appraisal - the Federal Court of Justice formulated in 1989:

"The need for protection dwindles to the extent that the memory of the deceased fades and, in the course of time, the interest in not falsifying the image of life decreases (cf. BGHZ 50, 133 (140 f.) = NJW 1968, 1773 = LM Art 2 GG No. 40 and Art. 5 GG No. 27 - Mephisto ; BVerfGE 30, 173 (196) = NJW 1971, 1645 - Mephisto). Unlike a practicing artist who z. B. as a theater actor or director will usually only be remembered by his contemporaries, the artistic reputation and appreciation of a visual artist who leaves a lasting work behind for posterity can continue to exist decades after death without the necessary Reference to the person of the deceased is lost. With a painter who - like Emil Nolde - is one of the well-known representatives of German Expressionism, approx. To recognize a continuing need for protection 3 decades after death. "

Only close relatives can take action against the violation of the non-material part of the post-mortem right to privacy ( active legitimation ), as a rule these are those who are responsible for the custody of the dead or those who are authorized to take care of the death and who have been appointed by the person concerned during their lifetime (this may also be an institution). A claim to monetary compensation is excluded because its satisfaction function would be in vain after the death of the person concerned. In the event of a violation of the pecuniary aspect of the post-mortem right of personality, the heirs are entitled to both defense and compensation claims .

In a case that became known, Klaus Kinski's widow and son Nikolai Kinski sued the publication of Klaus Kinski's medical records in 2008, citing postmortem personal rights. The psychiatric records from 1950 were of Vivantes along with 100,000 other files for research at the Berlin State Archives handed over. The informal personal rights of the person who had died 18 years earlier had been violated by the disclosure. The son's legal dispute with the State Archives ended in a settlement . The president of the court referred to the "incredibly difficult legal question" of weighing the right of personality against the right to information.

The protection of the asset component of the post-mortem right of personality ends ten years after the death of the person. The non-material elements, on the other hand, can also be protected after ten years. The portrait rights can be claimed by relatives up to ten years after the death ( § 22 KunstUrhG ). Archival embargo periods take account of post-mortem personal rights by only allowing access to personal archived material - in addition to the general embargo period (usually 30 years) - after an additional embargo period (in Lower Saxony e.g. 10 years after the death of the person concerned or 100 years after birth). In a corresponding situation, such as the receipt of commissions from works of art during one's lifetime, there may well be an overriding interest in maintaining a right of the deceased person.

Historical review

In the Middle Ages and early modern times, the dead were thought of as independent legal entities in some contexts, so they were given legal capacity . On this subject the Göttingen medievalist has Otto Gerhard Oexle about the presence of the dead dealt. An example of medieval views on this is the synod of corpses .

literature

  • Mario Martini : The digital legacy and the challenge of post-mortem privacy protection on the Internet. In: Juristen-Zeitung, 2012, issue 23, pp. 1145–1156.

Web links

Individual evidence

  1. ↑ General personal rights and moral rights, p. 2 ( PDF ; 104 kB).
  2. ↑ BGH, June 8, 1989 - I ZR 135/87 , decision of the Federal Court of Justice in the Emil Nolde case, 1989 (NJW 1990, 1986)
  3. ^ Legal dispute over Kinski's medical record ended , in: Berliner Morgenpost , April 30, 2009.
  4. ^ BGH, judgment of October 5, 2006, 1 ZR 277/03 -kinski.klaus.de
  5. ↑ Forbes List: The Top Earners Among the Dead , on: Spiegel Online , October 15, 2014.
  6. ↑ In: Herman Breat, W. Verbeke (Ed. :): Death in the Middle Ages. Leuven University Press, Leuven 1983, ( Mediaevalia Lovaniensia. Ser. 1, Studia 9, ZDB -ID 186089-6 ), pp. 19-77.