Princess Caroline vs. German glossy BUNTE

A decision in the field of freedom of expression versus personality right by Germany's highest court the Federal Constitutional Court otherwise known as Bundesverfassungsgericht or "BVerfG" has caught this Kat's eye (case reference: 1 BvR 927/08).

Not unexpectedly, the case concerned a media report mentioning Princess Caroline of Hanover. The elegant princess and sister of Prince Albert of Monaco has written German legal history in the field of personality and privacy rights and most German law students will have heard of the famous "Caroline decisions"(see the IPKat report here by way of historic example; dated 2004).

On 8 December 2011, the Bundesverfassungsgericht allowed a constitutional complaint by the German glossy magazine BUNTE. BUNTE filed the complaint against a private law injunction which had prevented the magazine to publish a particular article. BUNTE invoked an infringement of its constitutional right of freedom of expression and freedom of press under Article 5 (1) Sentences 1, 2 of the German constitution (Grundgesetz). So what had happened? BUNTE had published an article about the Arlberg skiing region, which included a description of the scenery as well as reports about local hotels, the hoteliers themselves and it discussed the great number of celebrity tourists. The report also referred Princess Caroline of Hanover and the article, inter alia, mentioned that she "goes skiing in Zürs every year- mostly with her family", the Princess acted low key and carried her skis herself. The report did not include any photos of the Princess.

The Bundesverfassungsgericht agreed with BUNTE and sent the matter back to the Regional Court of Berlin for a new decision stating that the lower private law courts instances had incorrectly assessed the meaning and scope of the right of freedom of expression and given too much importance to the Princess's personality right. The court found that the article in question did not primarily describe a holiday scene as part of the Princess's personal life. Her holiday habits were only mentioned by way of an aside and not in any detail. Insofar as text reports are concerned the protection afforded by the personality right, Articles 2 (1) and 1 (1) Grundgesetz was not as far reaching as the protection afforded when it concerned the publication of images. In particular, the personality right did not protect an individual from being individually named in a report. When it comes to short and concise paragraphs which only affect the " outer private sphere" but not the "intimate sphere" of an individual , freedom of expression should not be outweighed by the personality rights of the original claimant, Princess Caroline. The court added that the BUNTE article neither contained information that was factually incorrect, it mostly referred to "appearances" and did not reveal any concrete details of the Princess's actual holiday destination or holiday time.

This is the right decision, says this Kat, since it confirms the court's previous case law in this field. This Kat does, however, very much enjoy how the Princess's relentless court cases help to further refine the law in this field.

The court's press release can be found here (in German)