Case Summary and Outcome

Dieter Bohlen is a well-known German musician who sued British American Tobacco in the German courts for using his name in a cigarette advertisement. A lower court ordered BAT to cease further use of Bohlen’s name and to pay him 100,000 euro in compensation as a notional license fee. BAT stopped using Bohlen’s name but refused to pay the 100,000 euro compensation on the grounds that he was a public figure. Germany’s Federal Court found for BAT, holding that the award unjustifiably suppressed its right to freedom of expression. Bohlen then complained to the European Court of Human Rights. He argued that, by failing to compensate him for the unauthorized use of his name, the German courts had violated his right to private life as protected under Article 8 of the European Convention on Human Rights. The European Court of Human Rights disagreed and upheld the decision of the German courts, finding that they had struck the appropriate balance between the Bohlen’s right to privacy and BAT’s right to freedom of expression.

Facts

Dieter Bohlen, a very well-known German singer and founding member of one of Germany’s most famous pop groups in the 1980s, Modern Talking, had been forced to delete passages from an autobiographical book in which he had commented on former members of his band. This was widely reported in the German media and British American Tobacco, a cigarette producer, put out a magazine ad showing two packets of cigarettes with the text, “Look, Dieter, this is how you write books,” with several other words greyed out – referring to the deleted passages in the book.

As a non-smoker, Bohlen took great offense and sued for unauthorized use of his name. He obtained an order requiring BAT to cease distributing the advertisement and awarding him 100,000 euro as a notional licensing fee for the use of his first name. The court reasoned that, because the advertisements were profit-oriented in nature and did not comment on a matter of public interest, BAT was not entitled to use Bohlen’s name without compensation. BAT appealed to the Court of Appeal. That court agreed with the lower court’s reasoning but reduced the award to 35,000 euro, holding that because the advertisement was not insulting and because only Bohlen’s first name had been used, 100,000 euro was an excessive award.

BAT again appealed, this time to the Federal Court of Justice, Germany’s highest court of general jurisdiction. That court vacated the lower courts’ decisions and dismissed Bohlen’s claim for compensation. The court agreed with BAT’s argument that the advertisements contributed to the shaping of public opinion and therefore were of public interest, despite their commercial nature. It also found that BAT had not degraded, exploited, or insulted either of the plaintiffs, and that in stopping the ad Bohlen had obtained a sufficient remedy.

Bohlen then lodged an application with the European Court of Human Rights complaining that Germany’s domestic courts, by failing to compensate him for the unauthorized use of his name, had violated his right to privacy as protected under Article 8 of the European Convention on Human Rights.

Decision Overview

The Court began by reviewing the criteria for determining whether an appropriate balance had been struck between the right to freedom of expression and the right to respect for private life: (1) whether the report contributed to a debate of general interest; (2) whether it concerned a person “in the public eye”; (3) the subject matter of the report; (4) the prior conduct of the person concerned; and (5) the form and impact of the report.

The Court found that an examination of the facts against each of these criteria favored the right to freedom of expression. The ads dealt in a satirical fashion with events that had been a matter of public debate, namely the passages that Bohlen had been forced to delete from his book. Bohlen was a very prominent figure and he was unable to claim the same degree of protection for his private life as someone who is not in the public eye. The deletion of sections of the book had already been widely reported in the media, Bohlen had himself sought the limelight to publish the book, and BAT had not exposed any aspects of his private life – they ahd in fact only used his first name.  The advertisement had not in any way been degrading, insulting or exploitative about Bohlen.

The Court acknowledged that the use of Bohlen’s name could in theory raise issues under the right to respect for private life as protected under Article 8, particularly in light of the controversial nature of tobacco advertising. However, because Bohlen was a public figure, in light of the humorous nature of the advertisements at issue, and in view of the wide margin of appreciation left to the national courts in weighing up the competing interests, the Court found that the German courts had struck the appropriate balance. It found that there had been no violation of Bohlen’s right to respect for private life.