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Monday, 16 January 2012

BGH: no privacy for porn actor

The German Federal Supreme Court (Bundesgerichtshof) recently had to decide in another case concerning privacy/personality and freedom of expression/media: case reference VI ZR 332/09 of 25 October 2011, published in December 2011.

This time the court had to decide on the privacy rights of a (former) porn actor and whether he had to accept press reports about his 'seedy' past.

The court held that an actor who had in the past recognisably and under his own name acted in porn films, had to accept press reports about his porn film career.

The court found that the sculptor, part-time actor and (at the time of the press reports: new) boyfriend of a famous German film- and theatre actress had to accept that the media reported about his porn film past. The Bundesgerichtshof held that such reports did not infringe the sculptor's privacy sphere ("Privatsphäre") or intimate sphere ("Intimsphäre") as covered by the general personality right under Articles 2(1), 1(1) German Constitution (Grundgesetz).

The famous actress had attended film award ceremony with her new boyfriend and presented him to the media as her new partner. Shortly thereafter, the magazine "Auf einen Blick" ("at once glance", indeed) reported that the new boyfriend had previously been acting in porn films (under the heading "when women love too much"). The boyfriend, whose main profession was and is being a sculptor, wanted to stop such reports and initially succeeded at the Kammergericht (camber court) of Berlin which had decided that the claimant's personality right outweighed the magazine's right to freedom of expression since there was "no public information interest in the magazine report."

On appeal however, the Bundesgerichtshof disagreed with the Berlin court and agreed with the magazine. The judges found that when someone presents himself (or herself) to the public in commercial porn films, then he or she can not invoke the protection of his/her intimate sphere concerning this part of his/her life and actions later on. Furthermore, such reports did also not infringe the claimant's privacy sphere as "commercial porn films were downright intended to be noticed by the interested public" (this Kat particularly liked this particular statement by the court). The Bundesgerichtshof further found that there was indeed a public information interest: firstly, since the actress was well-known in Germany and the claimant was publicly presented as her new partner and secondly and even more so since pornography and "safer sex" were topics that were controversially discussed in society so that the report about the claimant's past could contribute to building public opinion on this topic.

The claimant had also complained that the media report had included false statements, in particular that he had not used condoms when making the films and whether or not he had told his new famous girlfriend about his porn film past. As false statements are not protected by freedom of expression and freedom of media under Article 5 (1) German Constitution, the Bundesgerichtshof send the case back to the Kammergericht Berlin to decide based on the facts of the case.

This interesting case can be read in its delicate entirety by clicking here (in German).


The image is of Michelangelo's sculpture David, only very loosely connected to the case, as the claimant is a sculptor, obviously this Kat does not wish to imply that the statue is in any pornographic.

5 comments:

T. Roach said...

Just a small caveat: The Bundesgerichtshof (BGH) is not the highest court in Germany, that's the Bundesverfassungsgericht (BVerfG). Complaints about the constitutionality of laws etc. go to the Bundesverfassungsgericht, also, decisions by the BGH can be checked for constitutionality by the BVerfG.

Birgit Clark said...

Hi T. Roach: Thanks for your comment. I hope I did not say or imply that the BGH was the highest court in Germany, it is however the highest court for, inter alia, civil and criminal law matters. I usually translate BVerfG as German Federal *Constitutional* Court to show that the BVerfG decides on constitutional law.

Anonymous said...

Birgit, the problem arises because the generally adopted "translation" of BGH is the Federal Supreme Court. I prefer using "the Federal Court of Justice" .

Birgit Clark said...

@Anonymous good point. the Federal Court of Justice is also the official translation but when used the term people asked me whether that was the constitutional court as they were so used to "Federal Supreme Court" as the translation for BGH. Hmm, maybe I need to use a disclaimer or defintion: "BGH, Germany's highest court in civil matters, with further appeals only available to BVerfG on questions of constitutional law"? :)

Anonymous said...

The BGH seems to think there are five federal supreme courts:

"Apart from the Federal Court of Justice, there are four other supreme federal courts: the Federal Administrative Court (Bundesverwaltungsgericht)in Leipzig (formerly Berlin), the Federal Finance Court Bundesfinanzhof) in Munich, the Federal Labour Court Bundesarbeitsgericht) in Erfurt and the Federal Social Court
(Bundessozialgericht) in Kassel."

following the link on this page

http://www.bundesgerichtshof.de/EN/FCoJ/fcoj_node.html

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