Protecting Privacy: The Clifford Chance Lectures - Vol. 4

By Basil S. Markesinis | Go to book overview

2 The General Right to Personality in German Law: An Outline of its Development and Present Significance

Professor Hans Stoll


I INTRODUCTION AND BACKGROUND

The German Civil Code does not use the expression 'personality' nor does it recognize a general right to personality. Reference is made only to the right to one's name: if a person's right to use his name has been contested by another person, § 12 BGB entitles him to demand that the disturbance be removed. If there is a threat that the disturbance will be repeated, an action for an order requiring the other person to cease and desist is possible. There are also some isolated provisions concerning the right to one's likeness in our Law of Artistic Creations, which came into force seven years after the enactment of the Civil Code (§§ 22-50). 1 In general, however, a person seeking to assert personality interests must rely on tort law remedies.

Of most relevance in that context is the first paragraph of § 823 BGB, under which any person who intentionally or negligently injures the life, body, health, liberty, property rights or 'any other right' of another person in an unlawful manner is liable in damages. There is unanimous agreement that the words 'any other right' should be construed in a very strict sense as including only 'absolute' rights, that is, rights which afford general protection in relation to everyone and against any conceivable disturbance. It is accepted that, in general, personality interests not expressly mentioned in the first paragraph of § 823 BGB, such as the interest in preserving honour and reputation, the integrity of the personal

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1
Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie of 9 January 1907 (RGB1. p. 7), §§ 22-50.

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