Under-age celebrities and personality rights: the German Federal Constitutional Court speaks

Herr Ochsenknecht (the father)

Privacy and personality rights: should there be different rules when it comes to media reports about people that are under-age? Some cases appear very clear-cut, such as the case of intrusive media reports about J.K. Rowling's child (see also Katpost here) -- but what about media reports about teenagers that are well-known in their own right, such as young actors or under-age offspring of famous parents that are starting their own careers?

Such a case concerning a media report about the questionable nocturnal behaviour of two young German actors and sons of a well-known actor father, recently made it all the way to Germany 's highest court, the Federal Constitutional Court (Bundesverfassungsgericht, in short: BVerfG). The publisher of such a media report had filed a constitutional complaint based on an infringement of its right to freedom of expression and reporting under Article 5(1) German Constitution ("Grundgesetz") after Germany's courts decided in favour of the young celebrities when they tried to prevent (further) publication(s) by obtaining an injunction enforced by penalties against the publisher (case references: BVerfG, 1 BvR 2499/09, 1 BvR 2503/09 of 25 January 2012)

In a decision of 25 January 2012, which was recently published, the BVerfG decided that, in cases of media reports about persons under 18 years of age, the relevant German civil courts have been applying too strict an assumption in employing the rule that, when it comes to media reports, the personality rights of an under-age person should as a rule and in principle outweigh the right of freedom of expression of the reporting media outlet/publisher. The BVerfG found that this assumption insufficiently differentiated the facts of each similar case, it being necessary to balance properly the conflicting rights of freedom of expression/press on the one hand and the general personality right on the other in each case -- including each specific instance of media reports about celebrity teenagers and adolescents.

What actually happened? The sons of well-known German actor Uwe Ochsenknecht, Wilson Gonzalez and Jimi Blue, had been watched by interested bystanders while they were damaging bicycles during "Freinacht" or "Hexennacht" (in English: free night or witches' night, the night between 30 April and 1 May, an increasingly annoying German tradition where young people play little or no- so-little tricks, a bit like Halloween). During the same night the young Ochsenknechts were also seen tearing out plants from gardens and destroying a public phone booth. This rather juvenile behaviour was reported in a media report on the complainant's website together with the editorial comment that the police had only taken the personal details of the young Ochsenknechts but had not started any criminal investigations into their behaviour. In particular, a report on the complainant's website stated (this Kat's translation) "the two young actors and singers had been questioned by police after a wild riot in Munich's city centre".

In its decision the BVerfG stressed that (like all other cases) cases relating to under-age celebrities required a case-by-case balancing of the conflicting rights (freedom of expression v personality right). In this particular case the judges took the view that the lower courts had not adequately considered that the encroachment upon the young actors' personality rights was alleviated by the young actor's "public image" (Öffentlichkeitsimage) as "wild youth" (Junge Wilde) and the fact that their behaviour would be seen as a mere petty offence. The BVerfG found that the lower courts had misinterpreted the scope and the importance of the human right of freedom of expression (Article 5(1)) insofar as they had not assessed the specific circumstances affecting scope of the young actors' personality rights and thus had given the personality right precedence over freedom of expression when balancing both rights. Consequently, the BVerfG annulled the lower court's decisions and send the cases back to the Regional Court for a new decision.... and rightly so says Merpel.

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