Defamation / Reputation, Privacy, Data Protection and Retention
Don Domingo v. Google Spain
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The First division of the German Federal Constitutional Court held that the Court of Appeals’ decision violated the fundamental rights of the complainant under Article 2(1) in conjunction with Article 1(1) of the German Constitution. The Constitutional Court reversed the Court of Appeals’ decision; granting an injunction on the broadcasting of a documentary that depicted the life and identity of a man involved in an armed robbery. The Court determined that the broadcasting of the documentary was a disproportionate interference since it included information that identified the applicant. The case arose after a German television channel commissioned a documentary about an armed robbery of an arsenal of the German armed forces where several soldiers were killed or severely wounded. The documentary referenced the petitioner’s name and homosexual tendencies. When the documentary was commissioned, the petitioner had already served two-thirds of his sentence for his involvement in the robbery. The Court held that the passage of time had eroded the newsworthy character of the original crime, thus heightening the complainant’s interest in his reputation and privacy. According to the Court, the human dignity and personality clauses guarantee the right “to be let alone” safeguarding the right to one’s possession of his image and spoken words.
In January 1969, the Petitioner planned a raid on a Bundeswehr ammunition depot, a German military storage facility for weapons. The petitioner with his friends carried out the robbery, killed four sleeping soldiers from the guards, seriously injured another and stole weapons and ammunition. The petitioner, along with the other robbers, was placed under arrest. On August 7, 1970, the Jury sentenced the two main perpetrators to life imprisonment and the Petitioner to a total of 6 years imprisonment for being an accessory. The jury found that the Petitioner had criminally abetted in the homicides when he explained to one of the main perpetrators how to use the pistol that he later used in the robbery.
The petitioner had already served two-thirds of his imprisonment, and the execution of the remaining sentence was expected to be suspended on probation following Section 26 (1) of the Criminal Code. However, in 1972, a German television channel named “Zweites Deutsches Fernsehen” (ZDF) commissioned a documentary named “The Soldiers’ Murder of Lebach” about the armed robbery, planning, and detection and the background of the culprits. The documentary referenced the petitioner’s name and homosexual tendencies.
The Petitioner filed an action seeking an injunction to prohibit the German television channel from broadcasting the documentary on the ground that the documentary violated his personality rights, ownership rights, and his right to his image. On June 8, 1972, the District Court of Mainz dismissed the Petitioner’s request for an injunction on the rationale that the Petitioner was “relatively a personality of contemporary history” and could not rely on the right to protect his personality. The District Court held that the act was of fundamental socio-political importance, mainly due to the formation of the group, and had aroused a great deal of public interest in the psychological and sociological background of the perpetrators.
On October 5, 1972 Koblenz Higher Regional Court (Court of Appeal) upheld the District Court’s ruling by considering the respective interests of a person to be protected from the unauthorised dissemination of his likeness concerning Section 22 and 23 of the Act on the Protection of the Copyright in Works of Art and Photographs (APCWAP). The Court reasoned its dismissal on the projection of the right to the petitioner’s personality covered under Article 1 (Human dignity) and 2(1) (Personal freedoms) of the German Constitution (i.e, Basic Law) on the one hand. On the other hand, the Court pointed to the need for objective pictorial information concerning persons in public life. That is recognised in Section 23 APCWAP with the interpretation of the freedom to express opinions and the liberty of broadcasting stations to provide information, protected by Article 5(1) (Freedom of expression, arts and sciences) of the Constitution.
The Court of Appeal held that in this conflict the right to provide information must prevail, especially since the trial had been concluded and because the petitioner was relatively a personality of contemporary history. Thus, the Court considered the plaintiff’s interest in the social reintegration gave way to the general public’s interest to receive a truthful account of the facts and the persons involved in the crime. The Petitioner filed a constitutional complaint before the Federal Constitutional Court on the ground that lower court decisions violated his fundamental rights under Article 1(1 )and Article 2(1) of the Constitution.
The eight-judge bench of the Federal Constitutional Court delivered the judgment. The central issue for the Federal Constitutional Court to examine was which of two constitutional values would take priority, freedom of the media under Article 5 of the Constitution or personality rights of the convicted criminal under Article 2 of the Constitution. Further, the Court had to examine whether the contested decisions were based on a fundamentally incorrect view of the scope and effectiveness of one of the fundamental rights asserted or whether the result of the decision itself violates such a fundamental right [para. 42].
The Constitutional Court highlighted that the Court of Appeal took no consideration of how the broadcasting of the documentary violated the most personal, intimate area, exposed the Complainant in a shameful, degrading manner and created a climate that made it impossible for the Complainant to gain a foothold in society again. The Constitutional Court observed that the concept of man in the Constitution leaves no room for the view that criminals, even after serving the sentence imposed on them by law, would have to accept an additional degradation in such a way that they could be put in a “modern pillory” in front of millions of television viewers. The Constitutional Court held that the public’s legitimate interest in finding out the truth in the trial and restoring legal peace ceased to exist once the complainant was finally sentenced, or at least shortly thereafter [para. 14].
Federal Minister of Justice (FMJ) on behalf of the Federal Government contended, that the circumstances of the present case are decisive, considering the offender’s general personality rights weighed against the freedom to form public opinion, with the idea of social rehabilitation also being given high value (Para 15). FMJ further contended that the documentary takes into account a legitimate need for information even a long time after the criminal ruling has become final because it includes a very realistic portrayal of the offender’s personality which would resonate with the public. FMJ concluded that the complainant ought to tolerate the depiction of the attack and its history. A complete ban on broadcasting cannot be justified, even taking into account the social rehabilitation aspect. The general right of personality, which is decisive for the consideration, does not primarily have the function of facilitating resocialization [paras. 16-17].
Ministry of Justice of Rhineland-Palatinate (MJR), on behalf of the State government, remarked on how the presentation of the documentary would probably affect the complainant’s rehabilitation and the citizens’ perceptions of the complainant’s home town. MJR stated that a man with a homosexual inclination would face significant rejection and derision from the residents in the applicant’s hometown. The claimant would endure absolute social isolation following his release if he were to be classified as homosexual as a consequence of the documentary [para. 18].
ZDF contended that a television channel is particularly entitled to satisfy the public’s legitimate interest in proper, comprehensive information about a contemporary event, such as the Lebach case, through a documentary presentation. ZDF further stated that the documentary serves to deter future perpetrators and to strengthen public morals and social responsibility preventively. The documentary game indirectly serves to protect legal interests within the meaning of Article 1 of the Constitution. ZDF concluded that the fundamental rights of potential victims and potential perpetrators who have not yet committed an offence are no less important than the personal rights of the complainant who has already been convicted [paras. 19-20].
The Court accurately found that several fundamental rights affected private law applications and led in opposite directions. Specifically, it noted that the right to one’s personality under Article 2 in conjunction with Article 1 of the Constitution conflicted with the freedom of broadcasting stations to provide information under Article 5.
The Court explained that in the instant case, the televised broadcast concerning the origins, execution, and detection of a crime mentioning the name of the criminal and containing a representation of his likeness touched the area of the plaintiff’s fundamental right to one’s personality. It also noted that the right to the free development of one’s personality and human dignity sought to protect individuals’ sphere of autonomy, “which includes the right to be left alone and ‘to be oneself,’ excluding the intrusion of others.” [Microcensus 1969; and Right to refuse to testify for social workers 1972] This includes the right to one’s likeness and to one’s utterances and even more to the right to dispose of pictures of oneself. The Court emphasized that such right entailed, in principle, the possibility for individuals to determine themselves and whether and to what extent others may publicly represent an account of their life. (Para 44)
Further, the Constitutional Court relied on Günther R. (1957); Microcensus (1969); Lord (1970); and Gustav (1972) to hold that the sphere of private life did not enjoy absolute protection. The Constitutional Court clarified that when individuals, in their capacity as citizens living within a community, affect the personal sphere of others or the interests of the community, “their rights to be masters of their private sphere may become subject to restrictions unless their sacrosanct innermost sphere of life is concerned.” Subsequently, the Court relied on Gustav H (1972) to observe that it neither justifies the state interest in the up clarification of criminal offences, nor another public interest from the outset access to the personal area, however, the high priority of the right to free development and respect for personality, arising from the close relationship to the highest value of the constitution, human dignity, requires that the protection of Article 2(1) in conjunction with Article 1(1) is countered as a corrective [para. 45].
The Constitutional Court again relied on Lord (1970), and Gustav (1972) to observe that it must be determined by weighing interests in the specific case whether the public interest being pursued deserves priority in general and according to the design of the individual case, whether the intended interference with privacy is required by this interest in terms of type and scope and reasonable proportion to the importance of the matter stands [para. 45].
The Court then explained the scope of the right to freedom of information by broadcasts and its applicability in the instant case. It noted that only when this right conflicted with other protected legal interests the purpose of individual broadcast, the manner of its presentation, and its actual foreseeable effect became relevant. The Court remarked that Article 5 of the Constitution established the possible conflicts between the freedom to broadcast and the interests of individuals and the community. (Para 48) However, the Court noted that this provision contemplated that when assessing other protected legal claims, the right to freedom to broadcast should not be a relative interest. Instead, the Court relied on Schmid mirror (1961) and Broadcasting decision (1960) to hold that, the constant practice of the Federal Constitutional Court the need expressed by this provision to take other protected legal interests into account must not render the freedom to broadcast a relative one; instead, the laws which restrict the freedom to broadcast must, in turn, be interpreted in the light of the constitutional guarantee and must, if necessary, be equally restricted to ensure that the freedom of broadcasting is safeguarded adequately” (Broadcasting decision 1971) [para. 51].
The Court stressed that since both the right to personality and freedom to broadcast were essential aspects of the liberal-democratic order of the Constitution, neither could claim precedence in principle. The Court pointed out that while the right to freedom to broadcast could restrict any claims based on the right of personality, the damage to an individual’s personality resulting from a public representation could not be disproportionate to the publication’s relevance. The Court observed that the answer to this conflict must be based on the fact that, according to the will of the Constitution, both constitutional values form essential components of the free democratic order of the Constitution, so that neither of them can claim fundamental priority. The portrayal of man contained in the Constitution and the structure of the state community that responds to it requires both the recognition of the independence of the individual personality and the safeguarding of a free-living climate, which is unthinkable today without free communication (Mirror (1966) and Senate Director Erich L. (1958)) [para. 53].
To unravel whether the prevalence of one right was excessive to the other, the Court explained that it required necessary consideration must, on the one hand, take into account the intensity of the interference in the personality sphere by a broadcast of the type in question; on the other hand, the specific interest that the broadcast serves and is likely to serve must be assessed and examined as to whether and to what extent this interest can also be satisfied without an impairment – or such an extensive impairment – of the protection of the personality [para. 53].
The Court considered that there were four relevant criteria from the point of view of constitutional law when assessing the televised broadcast in dispute. First, it noted that a public report of a crime in which the name, a likeness, or a representation of the culprit was provided always constituted a severe intrusion of the plaintiff’s private sphere since publishing his misdeeds showed a negative slant to his person. However, the Court noted that the reasoning could be different if the report were designed to create sympathy for the culprit [para 55]. Second, regardless of whether the representation report was controversial, contained false allegations, or even if it sought to be objective and factual, the Court deemed that being televised would typically constitute a much greater invasion of the plaintiff’s private sphere than an oral or written report published in the press or over the radio. First of all, from the greater intensity of the visual impression and the combination of image and sound, but above all of the much greater range, which also gives the television a special position concerning film and theatre. There is therefore particular reason “to ensure that the limits set by law are observed and to prevent abuse of personal rights, which have become more easily violated. The law must not bow to technical developments in this respect” [para. 56].
Third, the Court determined that if the first two reasons served a particular need exists for protection against violations of the right of personality by televised broadcasts reaching such a broad audience, the broadcast had to emphasize that the documentary play entails specific dangers. Such an intense reliving with an emphasis on emotion. When depicting a serious criminal offence, the component will normally evoke stronger and more lasting reactions from the viewer against the depicted criminals than pure word and picture reporting. The Court finally, deliberated on the issue of “selective perception”, on which the Court stated that it could be observed with other means of communication, which occurred more frequently with television. Viewers tend to unconsciously select and perceive only those statements that correspond to their views or prejudices from the communication offer [paras 56, 61].
In conclusion, the Court that television reporting of a criminal offense by naming, depicting or depicting the perpetrator, especially in the form of a documentary, will regularly mean a serious intrusion into his or her sphere. The Court underscored that on the other side of the equation was the argument that the public should be fully informed of the commission of crimes, including the persons involved and the facts leading to the offence. It stressed that when balancing, the interest in receiving information by televised reporting within these limits against the invasion of the sphere of the personality of the culprit was inevitably followed by the interest in receiving information [para. 63].
In the Court’s view, it was obvious that the right of personality would only be postponed if the reporting was objective and the interpretation was severe. It considered that the actual question of where the limits should be drawn, given that, in principle, the interest to receive information by reports of contemporary events should prevail, could only be determined by considering the circumstances of each case. For the Court, “the reflex effect of the constitutional guarantee of personality does not allow the media of communication, apart from contemporary reporting, to deal indefinitely with the person of the criminal and his private sphere. Instead, when the interest in receiving the information has been satisfied, his ‘right to be left alone’ gains increasing importance in principle and limits the desire of the mass media and the wish of the public to make the individual sphere of his life the object of discussion or even of entertainment”. [Gustav H (1972)] In the Court’s opinion, even a culprit, who attracted public attention by his serious crime, and gained general disapproval, remained a member of this community and retained his constitutional right to protect his individuality. Additionally, it noted that “if with the prosecution and conviction by a criminal court the act attracting the public interest has met with the just reaction, of the community demanded by the public interest, any additional continued or repeated invasions of the personal sphere of the culprit cannot normally be justified” [para. 64].
On the consideration of the time limit when reporting current events would be permissible, the Court stated that the decisive criterion relied upon whether the report concerned was likely to cause the culprit considerable new or additional harm compared with the information already available. Moreover, to determine the time limit more clearly, the Court held that the interest in reintegrating the criminal into society and restoring his social position should be considered the decisive point of reference. Therefore, the Court concluded that a repeated televised report concerning a severe crime that was no longer justified by the interest to receive information about current events was undoubtedly inadmissible when it endangered the social rehabilitation of the culprit. Further, the Court emphasized that the important change necessary for the culprit’s existence and the community’s interest in restoring his social position must prevail in principle over the interest in discussing the crime [paras 65-67].
In light of the above, the Court deemed that the decisions appealed against could not be maintained. It noted that the lower instance courts had sought to balance the interests of the petitioner and the broadcasting station exclusively by reference to Section 22, 23 APCWAP without attending to the reflex effect of the fundamental rights contained in Article 2 in conjunction with Articles 1 and 5 of the Constitution.
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This decision contracts freedom of expression by displacing truthful speech on a matter of public concern, given that the documentary identified a specific person and materially burdened their interest in dignity and the free development of their personality. By finding that the applicant’s constitutional right to be free from certain invasions of personality, including from completely accurate speech, the Court hindered the scope of the right to freedom to broadcasting.
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