Kohl defends his right of personality!

The defendant publisher Random House has failed in the second instance, together with the author, to save the publication of quotations from former Federal Chancellor Dr. Helmut Kohl in the book 'Vermächtnis – die Kohl-Protokolle'. The Higher Regional Court (OLG) Cologne upheld the appeal of the defendant in full.

The publisher Random House and the author of the biography, Dr. Schwan, who collected the quotations discussed here in several conversations with the former Federal Chancellor, attempted in the course of an appeal proceeding to reverse the judgment of the Regional Court (LG) Cologne. The latter had decided that the use and publication of quotations by Dr. Kohl in the book 'Vermächtnis – die Kohl-Protokolle' was to be prohibited on account of the conclusion of a confidentiality agreement and a violation of the General Right of Personality.

In the course of a preceding proceeding, the Higher Regional Court (OLG) Cologne had already decided that Helmut Kohl had to hand over to Schwan ownership of the audio tapes, which Mr. Schwan had recorded in the course of conversations with Helmut Kohl, because the former Chancellor had acquired a proprietary right of restitution through the recording of the tapes (we reported).

Decision of the Court

The Higher Regional Court (OLG) Cologne, by judgment of 05.05.2015, upheld the appeal of the publisher in full.

In the opinion of the senate, Random House was prohibited from publishing all quotations which were the subject of the appeal proceeding. Dr. Schwan had concluded a confidentiality agreement with Helmut Kohl, which had been agreed in the course of the agreement for cooperation on the preparation of a biography and was intended to prevent the journalist from publishing the statements recorded on the audio tapes without the consent of the plaintiff. The parties had in particular agreed that Helmut Kohl should have decision-making authority over the use of his statements as such as well as over the specific content and timing of publication. With the confidentiality agreement, the author had waived his right to freedom of expression. Random House was likewise not permitted to publish the relevant quotations. This prohibition on injunction follows from the violation of the general right of personality of the former Federal Chancellor. To protect press freedom, not every publication of unlawfully obtained information is excluded. However, an absolute prohibition on use exists when audio tape recordings in direct speech are passed on without authorisation and when the press proceeds in a reckless manner in disregard of the legitimate interests of the affected person. Such a factual constellation is to be assumed in the present case.

Random House was likewise not permitted to publish the relevant quotations. This prohibition on injunction follows from the violation of the general right of personality of the former Federal Chancellor. To protect press freedom, not every publication of unlawfully obtained information is excluded. However, an absolute prohibition on use exists when audio tape recordings in direct speech are passed on without authorisation and when the press proceeds in a reckless manner in disregard of the legitimate interests of the affected person. Such a factual constellation is to be assumed in the present case.

Conclusion

Anyone who commits to confidentiality may only pass on the information then obtained to third parties with the consent of the contracting partner. The publisher, who was not a contracting partner of Helmut Kohl, violated the General Right of Personality of the former Chancellor by publishing the book 'Vermächtnis – die Kohl-Protokolle', since it published this confidential information and is now prohibited from placing further copies of the book into circulation.