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Tuesday, 1 May 2012

The Prince, the Producer and the ECHR

What do German music producer Dieter Bohlen (right, the German equivalent to Simon Cowell) and Prince Ernst August of Hanover (also known as husband of Princess Caroline of Monaco) in common?  Not much at first glance.  However, according to recent German news reports, both have now joined forces and decided to sue the Federal Republic of Germany at the European Court of Human Rights over infringements of their respective personality rights (Article 8 of the European Human Rights Convention) through German court decisions in cases relating to satirical advertisement campaigns using the respective gentlemen's names.

What had happened? If media reports are to be believed, then Prince Ernst August of Hanover appears to have somewhat of a reputation, having allegedly once been involved in a skirmish with a cameraman and the owner of nightclub owner in Kenya. This reputation was picked up by satirical advertisement campaign by a cigarette maker which used an advert depicting a battered cigarette packet together with he slogan "Was that Ernst? Or August?" The Prince was not amused and took the matter to the German courts, which initially decided in his favour.

Mr Bohlen, who is a jury member of Germany's biggest pop talent show and used to be part of Germany's eighties pop group Modern Talking, equally took offence at an advertising campaign which took a satirical view of his autobiography. After several celebrities did not like how they were portrayed in his autobiography and threatened legal action, Mr Bohlen had to release a redacted version with lengthy passages being blacked out. This news story was again reflected in a similar advert which included the tagline "Look Dieter - this is how you write books" with several of the words in the advertisement being blacked out with a marker pen.

Both cases made it all the way to the German Federal Supreme Court, Bundesgerichtshof, which held that both advertisements had been covered by the German basic constitutional right freedom of expression (Article 5 (1) German constitution) and did not unduly limit the respective claimant's personality rights (Articles 1(2) and 2 (1) German constitution). Broadly speaking, the court had that advertisers were allowed to satirise current news events in their advertising campaigns as long as the respective advertisement did not exploit the image or "advertising worth" of the named individual and as long as the advert did not imply that the person mentioned was endorsing or recommending the product in any way.

In particular, the Bundesgerichtshof, had held that if the name of a well-known personality is mentioned in an advertisement (free translation):
"If the name of a well-known personality is used in an advertisement without that person's consent, one cannot per se assume that the protection of the personality rights of the person named in the advertisement will per se prevail over advertiser's freedom of expression. The effect on the respective person's personality right of using his/her name in an advertisement may have to be accepted where the advertisement deals with a news event that is discussed by the general public and in which the named person was involved in a satirical and mocking manner and where it also clear that the named person's image and advertising appeal is not exploited by using their name and where the advert did not imply that the advertised product is being endorsed or recommended by the named celebrity."
It will now be interesting to see whether the European Court of Human Rights disagrees with the Bundesgerichtshof approach, an approach which most legal observers have so far considered as balanced .... or whether the court will side with prince and producer and consider that the Federal Republic of Germany (by way of their courts) had not done enough to protect their rights under Article 8 European Human Rights Convention.

The Bundesgerichtshof's decisions in case "Enst August" (case reference I ZR 96/07) can be found here and in case "Bohlen"  (case reference I ZR 223/05 can be found here (both in German).

2 comments:

Anonymous said...

good ol' dieter!

Anonymous said...

Good ol' Ernst August of Hangover...

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