CEDH · CASELAW;CLIN;ENG — 19 février 2015

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Germany - 53495/09 Judgment 19.2.2015 [Section V] Article 8 Positive obligations Article 8-1 Respect for private life Use of public figure’s forename in satirical advert without consent: no violation Facts – The applicant, a musician and artistic producer, published a book some passages of which were removed following court rulings. In October 2003 a tobacco company launched an advertising campaign referring to this event and including the applicant’s first name. At the applicant’s request, the company undertook in writing to refrain from further distributing the advertisement in question with the heading mentioning his name, but refused to pay him the compensation he claimed by way of a notional licence fee. The applicant then applied to the Regional Court, which granted his request. The Court of Appeal upheld the main findings of the Regional Court, but reduced the amount of the notional licence fee. However, the Federal Court of Justice quashed the Court of Appeal judgment in June 2008, finding in particular that the applicant’s interest in not being named in the advertisement without his consent was outweighed by the tobacco company’s right to freedom of expression. Law – Article 8: The applicant complained of the State’s failure to protect him against the use of his first name by the tobacco company without his consent. The present application required the Court to examine the fair balance to be struck between the applicant’s right to respect for his private life, from the standpoint of the State’s positive obligations under Article   8 of the Convention, and the company’s freedom of expression under Article   10. The balancing of the right to respect for private life and the right to freedom of expression had to be carried out in the light of the contribution to a debate of general interest, the extent to which the person in question was in the public eye, the subject of the reporting, the prior conduct of the person concerned and the content, form and impact of the publication.* In the instant case the advertising campaign had related to a topic of public interest, dealing in a humorous and satirical manner with the publication of the applicant’s book and the ensuing proceedings shortly after the events had occurred. The applicant was a public figure who could not claim the same degree of protection of his private life as an individual not in the public eye. The advertisement complained of had referred exclusively to a public event that had been covered in the media, and had not reported details of the applicant’s private life. Moreover, in publishing his book the applicant had actively sought the limelight, so that his “legitimate expectation” that his private life would be effectively protected had been reduced. Lastly, the advertisement had not contained anything degrading or negative regarding the applicant, a non-smoker, and had not suggested that he identified in any way with the product being advertised. The use of a public figure’s name in connection with a commercial product without his or her consent could raise issues under Article   8 of the Convention. However, the advertisement in question had been of a humorous nature, bearing in mind that the company had sought to make a humorous connection between the image of a packet of its brand of cigarettes and a topical event involving a well-known person. Furthermore, only a small number of people would have been able to make the connection between the advertisement and the applicant, since neither his surname nor his photograph had featured in the campaign. Only persons familiar with the legal dispute concerning the book’s publication would have understood the advertisement. The applicant alleged in particular that the Federal Court of Justice had dismissed his claims primarily because the company’s freedom of expression enjoyed greater legal protection than his right to protection of his private life. Some passages in the judgment in question appeared to suggest that, simply because it was enshrined in constitutional law, the company’s right to freedom of expression carried greater weight in this case than the applicant’s right to protection of his personality and his name, which were only protected by ordinary law. However, the Federal Court of Justice had specified that only the pecuniary aspects of personality rights were protected by the ordinary law, whereas the right to the protection of one’s personality, in so far as it protected non-pecuniary interests, was one of the fundamental rights guaranteed by constitutional law. The Federal Court of Justice had also taken into consideration the circumstances of the case in conducting a thorough balancing exercise between the competing interests at stake, before finding that priority should be given to the company’s freedom of expression and refusing to grant a notional licence fee to the applicant, who had already obtained an undertaking from the company to refrain from further distribution of the advertisement. In those circumstances, and in view of the wide margin of appreciation left to the national courts in this sphere in weighing up the competing interests, the Federal Court of Justice had not failed in its positive obligations towards the applicant under Article   8 of the Convention. Conclusion : no violation (six votes to one). (For a similar finding, see the case of Ernst August von Hannover v.   Germany ( 53649/09 , 19   February 2015), in which a tobacco company launched an advertising campaign featuring the applicant’s first names and making reference to a public altercation in which he had been involved. See also Von Hannover v.   Germany (no.   2) , 40660/08 and 60641/08, 7   February 2012, Information Note   149 .) * See Axel Springer AG v. Germany [GC], 39954/08, 7   February 2012, Information Note   149   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes