The price of being famous

25-04-2017

Jens Künzel

Knowledge of recent developments in press law and case law concerning personal rights infringement can sometimes be crucial for the press and individuals.

Both have a strong and direct link to traditional IP rights, not least because practitioners of IP matters are sometimes also concerned with matters of personal rights. A recent case decided by Germany’s Federal Court of Justice may provide some additional guidance on the extent and limitations of publishing information about a famous person’s personal health.

Just after Michael Schumacher, the world-famous former German Formula 1 driver and world champion, had a skiing accident in late 2013 from which he suffered severe craniocerebral injuries, certain German tabloids and online magazines started a competition of sorts about the latest news and reports about the state of his health and the success of his rehabilitation.

Several times, the relatives of Schumacher—on his behalf—had to resort to judicial help in order to safeguard him from press reports that infringed his constitutionally protected personal rights, mainly his right to privacy.

In November 2016, the Federal Court of Justice had to finally decide a case which concerned a lengthy report on Schumacher’s medical condition and progress he had made in rehabilitation. The report was published in June 2014 in a well-known German tabloid magazine.

Schumacher sought injunctive relief with regard to seven different statements that fell into two different groups: they either directly concerned his current state of health, or they described certain medical treatments or measures for neurorehabilitation that Schumacher allegedly had to go through.

The Cologne Court of Appeal had affirmed a restraining order that prohibited all seven statements. The Court of Appeal held that all the statements ultimately concerned the plaintiff’s health and details of his life that were private circumstances largely shielded from the public eye.

 

"The relatives of Schumacher—on his behalf—had to resort to judicial help in order to safeguard him from press reports that infringed his constitutionally protected personal rights."

 Federal Court has its say
The Federal Court of Justice did not agree with the entire reasoning of the Court of Appeal. It held that only two of the attacked seven statements could be prohibited. The court, in principle, confirmed that all seven statements concerned the plaintiff’s right to privacy.

As a matter of German law, statements concerning the health and medical condition of a person generally touch on that person’s right to privacy, which is protected under article 2 of the German constitution and article 8 of the European Convention on Human Rights.

However, five of the attacked statements could be justified for different reasons.

First, the court held that one of them concerned a medical detail that the plaintiff’s manager had previously published in a public statement. In principle, facts that the concerned person had previously divulged to the public cannot be the subject matter of protection through a right to privacy.

Second, there were statements which the court held were justified because they carried less significance for the plaintiff’s sphere of privacy than the Court of Appeal had assumed. These statements were to be interpreted as containing more general facts and descriptions of the newest medical measures and techniques for neurorehabilitation.

While these descriptions were all combined with the statement that these measures and techniques were used in the course of the plaintiff’s rehabilitation, they were to be regarded as justified in light of the plaintiff’s public status and the public interest to know about matters concerning “famous persons”.

Third, there were two statements that directly and incontrovertibly concerned the current state of the plaintiff’s health with regard to intimate bodily functions and ways of communicating with his wife. These statements were not regarded as being justified in light of the public interest. The facts in these statements had also not been published before, so the defendant could not claim that the plaintiff himself had “opened up” about these facts.

Jens Künzel is a partner at Krieger Mes & Graf v der Groeben. He can be contacted at:  jens.kuenzel@krieger-mes.de

Jens Künzel, Krieger Mes & Graf v der Groeben, Federal Court of Justice, Michael Schumacher, F1, formula 1,

WIPR