Information privacy speech restrictions, and a recent German case

Rick Duncan nebraskalawprof at yahoo.com
Sat Mar 4 10:22:24 PST 2006


Thanks, Don. Interesting post.
   
  This kind of balancing of speech vs. personality rights reminds me of something Nino once said--it is like asking the court to decide whether a rock is heavier than a string is long.
   
  I certainly prefer our approach, one that protects freedom of speech and tells those who disagree with the speech to engage in counterspeech. The convicted murderer has the right to engage in counterspeech to attempt to persuade the public that he is rehabilitated and has become a swell guy. 
   
  Thanks again for the comparative view.  
   
  Rick Duncan

"Donald P. Kommers" <Donald.P.Kommers.1 at nd.edu> wrote:
  Eugene:

        The Kassel decision is vintage German constitutional law.  Freedom of speech ranks high in Germany's constellation of constitutional values but it is expressly limited by "general laws" protective of important social interests (such as reputation), by "statutory provisions for the protection of youth, and by [the right] to respect for personal honor" (Art. 5 [2], Basic Law), not to mention the principle of human dignity that the state is constitutionally obligated to enforce against speech that would undermine it.  Moreover, "personality" rights are deeply entrenched in Germany's legal tradition, as they are in European law and constitutions generally.  

        A leading decision analogous to the Kassel judgment is the Lebach Case, decided by the Federal Constitutional Court in 1973.  The case involved a television dramatization of a horrible crime -- sensationalized in the press at the time -- committed in the mid-1960s involving the murder of several German soldiers.  The program was about to be shown at approximately the time the criminal defendant was to be released from prison.  The TV show would have identified the prisoner by name, made oblique references to his alleged homosexuality, and flashed his picture across the screen. He sued to enjoin the showing of the film, invoking his personality rights under the Constitution (i.e., Basic Law).  He won in the Federal Constitutional Court (FCC).  This is what the Court wrote in part (my translation):  "In resolving the conflict [between the freedom to broadcast and the right of personality, one] must remember that. . .both constitutional concerns are essential aspects of!
  the free
 democratic basic order of the Basic Law, the result being that neither can claim precedence in principle. . . .In case of conflict [the court] must adjust both constitutional values, if possible; if  this cannot be achieved, [the court] must determine which interest will defer to the other in the light of the nature of the case and its special circumstances.  In so doing, the court must consider both constitutional values in their relation to human dignity as the nucleus of the Constitution's value system."

        In short, the FCC concluded that the defendant's right to the development of his personality, in tandem with the principle of human dignity, trumped the right to speech and press in the circumstances of this case.  The crime had faded in the collective memory of the public and because of that the defendant's interest in resocialization -- and taking up once again his rightful place in society and to make friends and influence people -- took priority, the FCC having said that personality (privacy in our sense?) and the interest of the defendant in rehabilitation outweighed any public interest in resurrecting all over again the individual's role in the commission of a crime for which he had already paid the penalty.  So the importance of the broadcasting right, which in other contexts the FCC has ringingly affirmed, recedes as time passes.  Given Times v. Hill (can't recall the date), the case would probably have been decided differently in the U.S.   

        A translation of this case and some other cases like it, together with commentary,  appear in The Constitutional Jurisprudence of the Federal Republic of Germany (Duke, 2nd ed.), the 3rd edition of which is now in preparation and which includes other interesting cases that invite comparison with similar decisions of the U.S. Supreme Court.  You will also find interesting and provocative questions and issues raised about some of these cases in the Jackson-Tushnet and Rosenfeld-Dorsen case books on comparative constitutional law.

Cheers and pax tecum.  

don






At 03:43 PM 3/3/2006, you wrote:
          According to
http://edition.cnn.com/2006/WORLD/europe/03/03/cannibal.film.ap/index.ht 
ml, "A court on Friday banned the screening of a film inspired by the
case of a self-confessed cannibal .... A state court in Kassel upheld a
complaint against the film, 'Rohtenburg,' by the man at the center of
the case. It found that Armin Meiwes' personal rights were infringed by
the movie, and that outweighed the value of artistic freedom."  "The
film's makers have argued that the case, which has fascinated and
appalled Germans, did no more than provide inspiration for the movie."

        Does German law indeed generally prohibit the making of
unauthorized biographies, or of movies "inspir[ed]" by important
criminal cases?  Or does it generally allow it, but for some reason
forbid it in this instance?  I ask this in part because European
attitudes towards information privacy are sometimes urged by privacy
maximalists as a model for American attitudes; I've been troubled by the
tendency of many information privacy speech restrictions to restrict
speech -- and to risk restricting not just the raw transfer of data, but
also things like political commentary, unauthorized biography,
discussions about one's circle of acquaintances, and the like -- and I
wonder whether this might be one such case.

        Eugene
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  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
   
  
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner


		
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