Protecting Privacy: The Clifford Chance Lectures - Vol. 4

By Basil S. Markesinis | Go to book overview

8
The Applicability of Human Rights as between Individuals under German Constitutional Law

Basil Markesinisand Stefan Enchelmaier


I PRELIMINARY OBSERVATIONS

In German law, as it is well known, the general right of privacy is largely the product of the ordinary courts working under constitutional inspiration. Yet in many if not most instances its violation comes about as a result of the activities of individuals or the Press and not the State. Such intrusions often reveal a clash of interests-- again between individuals--the interest to be let alone and the interest to speak one's mind; and, the sparring individuals frequently seek their protection in the Constitution and its human rights provisions. But how did the human rights provisions come to be involved in such disputes between private persons? Is such an 'intrusion' of public law into the realm of private relationships possible and, if it is, how can it be controlled to ensure that it does not get out of hand and undermine the concept of private au­tonomy which lies at the roots of private law? This is a question that has figured in many privacy cases but goes well beyond them as the first of us has explained elsewhere. 1 Since two chapters in this book deal with detailed aspects of the German law of privacy, we have decided to devote this, its last one, to this wider issue. This essay is thus not so much concerned with which human rights are protected under the German Constitution of 1949 (Grundgesetz or

____________________
1
"'Privacy, Freedom of Expression, and the Horizontality of the Human Rights Bill: Lessons from Germany'", LQR, winter 1999.

-191-

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