Protection of Personality Rights against Mass Media Invasions

Mass media encroaches upon personality rights in many ways: Wrong information may affect people's reputation or credit, false statements may be damaging even if they are not defamatory, news may violate the right of privacy, fictitious interviews with a celebrity are able to falsify its personality. Complex issues arise therefrom, such as whether the victim is protected by law and what kind of claim - if any - he might have.

First of all, one has to bear in mind that not only the personal rights of the victims are at stake but also, on the other hand, the right to give full information as well as the journalists' and other persons' rights to freedom of expression. Therefore, conflicting interests are involved, and the scope of protection can only be established by weighing the arguments on either side. It has to be pointed out that the European Court of Human Rights seems to move the borderline - which has been accepted under many legal systems - in favor of the right to freedom of expression.

Second, even if one arrives at the conclusion that the infringement of personality rights was against the law, difficult questions about the claim's legal basis and its prerequisites have to be solved. Of course, at first sight tort law seems to be appropriate, but in the famous German Caroline of Monaco-Cases a claim based on unjust enrichment was also considered. It goes without saying that tort law as well as the law of unjust enrichment imposes quite different requirements for remedies.

Third, an action for damages against mass media may run into special difficulties because of the publishers' right not to disclose the sources of information: It may be impossible for a claimant to prove a journalist's faulty behavior or even the prerequisites of the publisher's vicarious liability. Strict liability of mass media could be a way out, but such liability is not common to all legal systems, if desirable at all. Fourth, even if a claim for damages is established still the question has to be answered whether the claimant can also demand compensation in kind, e.g. retraction, or solely money payments.

Fifth, the question arises whether the claimant can demand only compensation of pecuniary loss or also of non-pecuniary loss. Furthermore, again the German Caroline-Cases show that the assessment of such damages is a problem: The amount of non-pecuniary loss caused by the fictitious interview was out of proportion as compared to any single compensation for pain and suffering in cases of personal injury. The German Supreme Court's reasoning for such extraordinary indemnification was to prevent mass media from such profitable activities. But in the end this seems to lead to punitive damages - which previously have been rejected by the same court.

This project, which will was carried out in cooperation with the European Centre of Tort and Insurance Law (ECTIL), not only aimed to give an overview of the law as it stands in several European countries (including case law of the European Court of Human Rights), in South Africa and the U.S.A. Furthermore, input from practitioners were requested, both from the media as well as from judges and attorneys. These contributions altogether formed the basis of a comparative analysis and considerations regarding future developments.

The study thereby gives attorneys, judges, scholars and media representatives up-to-date information on one of the crucial legal topics of today's practice. It enhances a mutual understanding of the different legal systems in place and allow interested lawyers to compare the protection of personality rights in scope. Furthermore, the study aids to facilitate the uniformity of jurisdiction across Europe by specifically addressing the practical issues a court should take into account when dealing with such cases. Finally, on a legislative level this study is a useful contribution in order to prepare the grounds for harmonising the protection of personality rights on a national as well as the European level.

The study contains reports and hence the legal status of Austria, England, France, Germany, Italy, South Africa, Spain, Sweden, Switzerland, U.S.A. Specific interest, as indicated, was also paid to the jurisdiction of the European Court of Human Rights. The main issues treated in the reports and the comparative analysis correspond to the five points enumerated in the project structure outlined below, which were the basis for a questionnaire.

The results of this project were presented at a conference in June 2004. They are be published in the Tort and Insurance Law Series (Springer publishers, Vienna) edited by ECTIL in cooperation with the Institute: