Defamation / Reputation, Privacy, Data Protection and Retention
Don Domingo v. Google Spain
Closed Mixed Outcome
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The Federal Constitutional Court of Germany upheld a lower court decision granting an injunction that banned a novel from being published in West Germany. The novel, titled Mephisto, tells the fictional story of Hendrik Höfgen, a talented actor who colludes with the Nazi powers to advance his career. The titular character of the novel was based on real-life actor Gustaf Gründgens. In 1963, Gründgens’ adoptive son, Peter Gorski, brought proceedings against the publishing house, Nymphenburger Verlagshandlung, seeking to prevent the publication of Mephisto in West Germany. The Federal Constitutional Court of Germany considered that although artistic freedom is protected by the German Constitution, in this case, lower courts were right to invoke the right to dignity, as laid out in the Constitution, to protect the personality rights of Gründgens, thus upholding a ban on the publication of the novel.
In 1936, German author Klaus Mann published a novel titled “Mephisto Roman eines Karriere” in Querido Verlag, Amsterdam. After Mann’s death in 1949, the novel was published in 1956 by Aufbauverlag in East Berlin. Mann’s novel tells the story of “Hendrik Höfgen, a talented actor who denied his political convictions and shed all human and ethical ties in order to pursue an artistic career in a pact with the rulers of National Socialist Germany. The novel presents the psychological, intellectual, and sociological conditions that made this ascent possible. [para. 1]
The actor Gustaf Gründgens served as a model for the character of Hendrik Höfgen in the novel. In the 1920s, when he was still working at the Hamburger Kammerspiele, Gründgens was friends with Klaus Mann and married his sister Erika Mann, from whom he divorced shortly afterward. “Gründgens and his career are reflected in numerous characteristics of Hendrik Höfgen, including his physical appearance, the plays he acted in, and his appointments as State Councilor and Director-General of the State Theatre of Prussia” [para. 1].
In subsequent publications, Mann recognized that the fictional character Höfgen was in many ways inspired by Gründgens. In 1942, Mann in his book “The Turning Point” stated that “I visualize my ex-brother-in-law as the traitor par excellence, the macabre embodiment of corruption and cynicism. So intense was the fascination of his shameful glory that I decided to portray Mephisto-Gründgens in a satirical novel” [para. 2].
In August 1963, Nymphenburger Verlagshandlung, a publishing house from West Germany, announced the publication of Mephisto. Peter Gorski, Gustaf Grundgens’ adoptive son, issued proceedings against the publishing house and sought an injunction prohibiting “the reproduction, distribution, and publication of Mephisto” [para. 9]). Gorski contended that people familiar with German theater in the 1920s and 1930s would link Höfgen with Gründgens; that in addition to many recognizable facts, the novel contained many hurtful fictions which helped to give a false and highly derogatory picture of Gründgens’ character” [para. 2].
The Landgericht Hamburg (first instance) rejected the claim. The publishing house published the novel in September 1965 with the note “All the people in this book represent types, not portraits.” On November 23, 1965, the Hanseatic Oberlandesgericht in Hamburg (Court of Appeals) granted the injunction requested by Gorski, effectively prohibiting the publication of the novel in West Germany.
The Publishing house, Nymphenburger Verlagshandlung, sought constitutional review before the Federal Constitutional Court of the decision that granted the injunction against Mephisto.
Mueller, J. Stein, J. Ritterspach, J. Rupp-v. Bruneck, J. Boehmer, and J. Brox of the Federal Constitutional Court of Germany delivered the judgment. The central issue before the Court was to analyze whether the decision issued by the Court of Appeals of Hamburg, prohibiting the publication of the novel Mephisto in West Germany, misconceived the right to artistic freedom, as enshrined in Article 5 III of the Grundgesetz (GG) (German Constitution or Basic Law).
The Court began its considerations by stating that Article 5 III, GG protects scientific investigation and research, teaching, and artistic endeavors, thus guaranteeing individual freedom to artists. The freedom granted by this article extends not only to the content or the work produced in a given artistic product, but also to dissemination and access to it since the exhibition and dissemination of the work are as important as its creation for art as the specifically artistic enterprise. [para 3].
Similarly, the Court argued that artistic freedom, as laid out in the Constitution, “means that the artist must be free to choose and treat his topic free from attempts by the state to limit the area of specifically artistic judgment by rules or binding value judgments” [para. 4]. Given this set of guarantees, the Court was also of the opinion that intermediaries, such as publishing houses, also benefit from the protection afforded by Article 5 III, GG. The Court observed that as a product of the narrative, art needs to be reproduced, distributed, and published in order to have any effect on the public, the publisher’s function as the intermediary is indispensable, so the constitutional guarantee extends to his activity as well [para. 4].
In light of this legal framework, the Federal Constitutional Court considered that artistic freedom is not an absolute right, on the contrary, this freedom is rooted in the Constitution’s conception of man as an independent personality who can develop freely within the social community. Subsequently, the unreserved nature of the fundamental right means that the limits of the guarantee of artistic freedom can only be determined by the constitution itself. Hence, the Court observed that the guarantee of artistic freedom can come into conflict with the constitutionally protected personality sphere because a work of art can also have an impact on the social level. Further, the Court observed that a person’s claim to respect and value may be affected by an artist’s use of details of the character and career of actual people. In addition to being an aesthetic reality, such work also exists in the realm of social facts, and the social effects are not dissipated by being artistically transmuted [para. 5].
The Court noted that the lower courts were right to invoke Article I of the Grundgesetz in their assessment of the rights of actor Gustaf Gründgens, because “It would be inconsistent with the constitutional mandate of the inviolability of human dignity, which underlies all basic rights if a person could be belittled and denigrated.” Subsequently, the Court observed that the obligation imposed on all state power in Art. 1(1) GG to grant the individual protection against attacks on his human dignity does not end with death [p. 5].
The Federal Constitutional Court further noted that the resolution of the tension between the protection of personality and the right to artistic freedom cannot only focus on the effects of a work of art in the non-artistic social area but must also take art-specific aspects into account. The Court stated that its role was not to substitute its own opinion to the detriment of that of a proper judge, “in cases like these [the Federal Constitutional Court] can only hold that the basic right of the losing party has been infringed if the judge has either failed to recognize that it is a case of balancing conflicting basic rights or has based his judgment on a fundamentally false view of the importance and especially the scope, of either of those rights” [para. 6]. For the Court, the decisions issued by the first instance Court and the Court of Appeals, both recognized the tension between artistic freedom and the right to dignity, the need to balance these rights “and that the judgments as a whole do not seem to be based on a fundamentally erroneous view of the importance or scope of the two basic rights” [para. 6]. For these reasons, the injunction granted by the Hanseatic Oberlandesgericht in Hamburg stood.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this influential decision, the Federal Constitutional Court of Germany limited the scope of protection of freedom of expression regarding artistic endeavors, such as novels, by upholding an injunction that banned the publication of a book. In doing this, nonetheless, the Court highlighted the importance of dissemination and access, as a part of freedom of artistic expression, and the role of intermediaries, such as publishing houses, in the exercise of this right. The Court also established that human dignity, as laid out in the German Constitution, must be balanced with freedom of expression when these rights come into conflict or tension, thus recognizing, in line with International Human Rights Standards, the limits of the latter right.
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