Protecting Privacy: The Clifford Chance Lectures - Vol. 4

By Basil S. Markesinis | Go to book overview

5
Some Thoughts on the Decision of the BGH concerning Princess Caroline of Monaco

Professor Peter Schlechtriem

The following comments are prompted by the decision of the Federal Court of 15 November 19941 dealing with the right of privacy of the Princess of Monaco. The Supreme Court confirmed the decision of the Court of Appeal ordering the defendant publisher of two illustrated periodicals to withdraw the publication of purely invented statements concerning the plaintiff and to correct certain other false allegations concerning contacts between the plaintiff and defendant's reporter. The Supreme Court, however, reversed the Court of Appeal's decision to award the plaintiff DM 30,000 as non-pecuniary damages. In referring the question of quantification of damages to a new court for re-determination, the Federal Court advised it to pay Attention to the aim of deterrence and thus, in this context, to take into account the profits of the defendant. 2

For a long time I have advocated the view that the violation of the right to one's personality and its resulting, unlawful commercialization should give rise to a restitutionary measure of damages.3 This view has come to be shared by many scholars; and, most

____________________
1
BGHZ 128, 1 = NJW 1995,861. The decision is, in the German legal literature, referred as the Caroline I case to distinguish it from subsequent (successful) suits brought by the Princess. Thus, Caroline II-BGH NJW 1996,984--dealt with a false report that the Princess was suffering from cancer while Caroline III--B GHZ 131, 332 = NJW 1996, 1128--involved her being photographed by means of a telephoto lens while lunching with her male partner in a secluded part of a public restaurant. The recent Caroline cases are completed by the so-called Caroline's Son case-- BGH NJW 1996,985.
2
The Court of Appeal has since granted DM 180,000 (to cover three different publications). See NJW 1996, 2870.
3
See Schlechtriem, "'Bereicherungsanspröche wegen Persönlichkeitsverletzung'", Feschrift Hefermehl ( 1976), 445.

-131-

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