Right to anonymity even for wild guys?

The general right to personality offers, among other things, a right to anonymity. This includes the right not to be named in press reports. This becomes particularly relevant when the subject matter of the report is possibly criminal behaviour, since this is particularly apt to damage a person's public reputation. The Federal Constitutional Court (BVerfG) had to deal with the question of whether identifying reporting on criminal conduct by minors is permissible.

The factual basis of the case was an article in the 'Sächsische Zeitung', which was disseminated both in print and on the Internet. In it, it was reported that the sons of actor O., themselves well-known child actors, had, together with other juveniles, during the so-called Freinacht in Munich, tampered with bicycles, destroyed flower beds and damaged a telephone booth. Additionally, the daily newspaper reported that the sons of O. had been questioned by police in connection with this incident. However, no investigation into the juveniles was initiated.

Both plaintiffs are themselves actors and singers. They became known, among other things, through certain youth films, e.g. from the film series 'Wilde Kerle', and enjoy numerous fans particularly among young people. They are recipients of emerging talent prizes and have already appeared in numerous TV shows. Finally, both had already expressed themselves in interviews about their plans and views on life and their attitude to the media and the public .

The plaintiffs then demanded of the 'Sächsische Zeitung' that it cease the dissemination of these statements. In the first two instances, this demand was granted. However, the 'Sächsische Zeitung' felt itself thereby impermissibly restricted in its freedom of expression and filed a constitutional complaint with the Federal Constitutional Court.

Court's decision

The Federal Constitutional Court (BVerfG) (order of 25.01.2012, Az.: 1 BvR 2499/09, 1 BvR 2503/09) came to the conclusion that the appellants had been impermissibly restricted in their freedom of expression by the judgements of the lower courts. Whilst the age of the juveniles (at that time 16 and 18) had to be taken into account, this could not generally lead to the assumption that reporting would be impermissible.

However, a weighing had to be undertaken between the severity of the infringement of the right to personality and the degree of the infringement of freedom of expression. Particularly in the case of verbal reports, the general right to personality provides no general protection against individualising reporting, but only in a specific respect. What had to be observed in particular was the content of the reporting. In criminal proceedings, the naming or other identification of the perpetrator is not generally permissible. However, this report contained undisputed conduct by the juveniles, which was not even the subject of criminal investigation.

Furthermore, it had to be taken into account that the press is not fundamentally obliged to report anonymously. It is also part of its function to point out the failures of concrete persons, especially since these had themselves reduced the scope of protection of their general right to personality by themselves seeking public attention in particular through television, and in doing so had cultivated an image as 'young wild guys'. True statements must then be accepted. The right to personality provides no claim to be depicted only as one sees oneself or wishes to be seen.

Furthermore, it had to be taken into account that only the social sphere of the plaintiffs was affected. The subject matter of the report was a trivial offence, which would reduce the infringement of the right to personality, and no criminal investigation had been initiated.

The Federal Constitutional Court (BVerfG) therefore remitted the case for fresh decision to the Regional Court (LG).

Conclusion

The general right to personality of minors is indeed significant. However, it does not have general priority over the freedom of expression of the reporter. Rather, even here, a comprehensive weighing of the infringed rights must be undertaken in the individual case, and this can work in particular to the disadvantage of the affected person if they have themselves exposed themselves in public.