Freedom of Art vs. Right to Personality – 'Fear' prevails

The right of a right-wing politician to protection of her personality must yield to freedom of art. This was decided by the Regional Court (LG) Berlin in interlocutory proceedings in favour of the Berlin Theatre Schaubühne. The play 'Fear' may continue to be performed unchanged.

The Berlin Theatre Schaubühne has been performing a theatrical play entitled 'Fear' since October 2015 and describes it on itswebsite.

In this play, a right-wing politician is mentioned by name on several occasions. Furthermore, her image is projected multiple times onto a screen and also integrated into the stage set as a paper printout, among other things.

In the overall presentation, zombies repeatedly appear. In one of the monologues it states:

'A zombie only dies if you shoot it directly in the brain and destroy its brain.'

During the monologue, images of the applicant politician are projected in rapid succession onto a large-format screen.

In this presentation, the politician saw herself as violated in her generalright to personalityand applied in interlocutory proceedings for an order prohibiting the display and dissemination of her image in the performance of the theatrical play 'Fear'.

The Berlin Theatre opposed this application and invoked freedom of art. It argued that at no point in the theatrical play is there any call for violence against the politician. The 'zombies' would represent the undead, the non-living; they would designate the new right-wing arguments.

Court decision in favour of freedom of art

By its judgment of 15.12.2015 – 27 O 638/15, the LG Berlin decided in favour of the Berlin Theatre and rejected the claim for an injunction on the grounds that the politician's right to personality had not been violated.

Although images must not be disseminated or displayed without the consent of the person affected, this does not apply when the dissemination or display serves the higher interest of art. This could readily be assumed in the present theatrical play. The politician's right to protection of her personality must yield to freedom of art in the present case.

The display was part of the disputed production. Freedom of art sets limits to the right to personality. This applies in the relationship between freedom of art and right to personality also because the enforcement of this right against freedom of art is more likely than other rights asserted against an artwork to set substantive limits on artistic freedom. In particular, there is a risk that under the guise of the right to personality, public criticism and discussion of matters important to the public and society could be suppressed.

The court did not overlook the fact that freedom of art itself is also not granted without limits. Nevertheless, in weighing the presently conflicting interests, it has concluded that the theatrical production in question neither deprives the politician of her human dignity nor will any reasonable theatre-goer seriously assume that the play calls for violence against, among others, the applicant politician.

Conclusion

In principle, images may not be displayed or disseminated without the consent of the person depicted, unless it serves the higher interest of art. In that case, it must be clarified whether the impairment of the person affected is so serious that freedom of art must yield. In the present case, the court denied a serious violation of the right to personality and rejected all allegations made by the politician as unfounded.