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Tuesday, 22 July 2008

Raw deal for film producer as OLG fleshes out its reasoning

From the industrious and observant Birgit Clark comes news of an interesting decision from Germany in the field of personality/privacy rights v freedom of art. The Higher Regional Court of Frankfurt published a press release on 9 July 2008 which tells us as follows:

"In a decision of 17 June 2008 (case reference Az.: 14 U 146/07) the Higher Regional Court of Frankfurt am Main (OLG Frankfurt am Main) confirms a ban upon the real life movie "Rohtenburg" by granting precedence of the constitutional protection of the personality over freedom of art.

The misspelling of Rothenburg as "Rohtenburg" was intentional and appeared to be a "pun" on the adjective "roh" = "raw", as in raw meat, in German.

The Frankfurt court confirmed its earlier preliminary decision of 2006 (as well as the lower court's decision) in which it ruled that the movie "Rohtenburg" was based on the real life story of the claimant, who had become known as the "Cannibal of Rothenburg" (German: "Kannibale von Rothenburg")

The movie "Rohtenburg", which was produced by the defendant, may not be distributed in Germany or shown in German cinemas. In their decision the judges refer to the claimant's personality rights. The claimant was found guilty of murdering a 43 old man, after unmanning him and eating parts of his body. The case was widely publicised worldwide: see here http://en.wikipedia.org/wiki/Armin_Meiwes.

The court decided that, even though the claimaint received a murder conviction for his actions, which the movie depicted, the claimant should not have to endure being made the object of a horror movie with a storyline that allowed the general public to clearly identify the claimant as the main "monster" protagonist.

After balancing the conflicting rights, the court gave precedence to the protection of the claimant's human personality under Articles 2(1), 1 (1) German Consitution over the freedom of art, which the defendant had invoked. Freedom of art equally is a human right under Article 5(3) of the German constitution and the ambit of freedom of art is even wider than that of freedom of speech under Article 5(1). All types of art are protected and no "judgment" concerning quality of the art should be made.

The movie was unquestionably protected by freedom of art and, in its decision, the court very carefully balanced the conflicting rights. Taking into account the seriousness of the claimant's crime, freedom of art did still not go so far that the claimant had to accept being made the object of a horror-movie. One of the main points of the case was that the movie clearly is a horror movie and "one-sidedly" just intended to shock and disgust viewers without even trying to give a complete picture of the claimant's personality. As such, the judges found that the movie's portrayal of the claimant's personality was not "balanced".

The court acknowledged the justified interest of the media of informing about the case and its details. The court also stressed the fact the claimant had, in the past, shared information about his life and motivation with the media in interviews. These points clearly did affect the legal scope of the protection of his privacy. However, on balance it did not mean that the claimant had given his consent to any possible portrayal of his persona. The claimant's right of protection of his human personality under the general personality right had not been reduced to such a level that he had to accept every kind of portrayal of his person".
Says Birgit, this case is (mostly) in line with the Federal Constitutional Court's precedents. The important message appears to be that this film did not inform but merely shock -- and did not even try, according to the court, to give a balanced, full portrayal of the clearly identifyable main protagonist. So yes, you can make a movie about this murder and this movie is protected by freedom of art. However, the movie obviously crossed the line, being a mere horror movie with a one sided "monster portrayal" of the claimant and his crime, which tipped the balance in favour of the personality right

Press release of 9 July 2008 here
Full decision here
Eating People is Wrong here

2 comments:

Jan-Peter Ewert said...

This case nicely illustrates the principle of territoriality in IP law. A friend of mine just came back from Thailand, where he could watch the movie on national tv.

Should Mr. Meiwes plan to leave Germany after his release from custody for the murder, he might notice that the ban on the movie only had effect here.

Anonymous said...

who would want to watch that movie anyway...

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