HEADNOTES:

 
1. The banning of a novel is a particularly serious encroachment on artistic freedom so that it is necessary for the Federal Constitutional Court to examine, on the basis of the specific circumstances of the case at hand, the compatibility of the challenged decisions with the constitutional guarantee of artistic freedom.
 
2. Artistic freedom requires the application of standards specific to art in the case of a literary work that is identifiable as a novel. This leads, in particular, to a presumption that a literary text is fictional.
 
3. The right to artistic freedom includes the right to use real-life models.
 
4. There is a correlation between the degree to which an author creates an aesthetic reality divorced from the actual facts and the severity of the violation of the right of personality. The greater the similarity between the copy and the original, the more serious the impairment of the right of personality. The more the artistic depiction touches on the aspects of the right of personality that are afforded special protection, the greater the fictionalisation must be in order to rule out violations of the right of personality.

Order of the First Senate of 13 June 2007
– 1 BvR 1783/05 –

in the proceedings on the constitutional complaint of V… GmbH,
represented by its board of directors …

RULING:

1. The judgment of the Federal Court of Justice of 21 June 2005 – VI ZR 122/04 –, the final judgment of the Munich Higher Regional Court of 6 April 2004 – 18 U 4890/03 – and the final judgment of the Munich I Regional Court of 15 October 2003 – 9 O 11360/03 – violate the complainant’s fundamental rights under Article 5.3 sentence 1 of the Basic Law (Grundgesetz – GG) to the extent that the judgments granted the second plaintiff the right to prohibit the complainant from publishing or having published, distributing or having distributed, selling or having sold and advertising or having advertised under penalty of an administrative fine the book “Esra” in the version that was in accordance with the undertaking of 18 August 2003.
   
   Otherwise, the constitutional complaint is rejected as unfounded.
2. The judgment of the Federal Court of Justice of 21 June 2005 – VI ZR 122/04 – is overturned to the extent of the violation of the fundamental right determined pursuant to no. 1. The matter is referred back to the Federal Court of Justice in this respect.
3. The Free State of Bavaria and the Federal Republic of Germany must each reimburse the complainant one quarter of its necessary expenses in the proceedings on the constitutional complaint.

GROUNDS:

A. – I.

The constitutional complaint is directed at the judgments of the Munich I Regional Court, the Munich Higher Regional Court and the Federal Court of Justice which prohibited the publication, distribution and dissemination of the novel “Esra”, written by the author B. and published by the complainant, because the novel violated the general right of personality of the plaintiffs in the original proceedings.

1. The novel “Esra” was published by the complainant’s publishing house in spring 2003. The book tells the story of the love affair between Adam and Esra, an author and an actress. The love affair between the two main characters is set in Munich-Schwabing and is described from the perspective of the first-person narrator Adam over a period of four years. The couple’s love affair is plagued by all sorts of obstacles: Esra’s family, in particular her domineering mother, Esra’s daughter from her first failed marriage, the daughter’s father, and above all Esra’s passive, fatalistic personality.

Although in the opinions of the author and the complainant the characters of the novel are fictitious, both conceded in the original proceedings that the author had been inspired by his love affair with the first plaintiff. In the dedication in the copy of the book the author sent to the first plaintiff, he wrote:

Dear A…, this book is for you. I wrote it only for you, but I can understand that you might be afraid to read it. Perhaps you will read it when we are old – and will again see how much I loved you. Maxim. Berlin, 22 February 2003.

The book’s epilogue contains the following statement:

All of the characters in this novel are fictitious. Any similarity to persons living or dead is purely coincidental and unintentional.

The first plaintiff is the winner of the 1989 Federal Film Prize Award. She married at the age of 17. She has one daughter from this marriage. After the failure of her marriage, the first plaintiff had an intimate relationship with the author for one and a half years. During their relationship her daughter became very ill. After she separated from the author, the first plaintiff had a short relationship with a former school friend. She has a child from this relationship; the relationship has also meanwhile ended. The second plaintiff is the mother of the first plaintiff. She is the winner of the 2000 Alternative Nobel Prize and owns a hotel in Turkey.

2. The novel character Esra is portrayed as a helpless woman, dependent on her mother’s wishes, who in the version of the novel last challenged has won the “Fritz Lang Prize” for her role in a film. Her relationship with the first-person narrator is characterised by an ongoing alternation between affection and rejection and the disappointed love of the first-person narrator. It is destined to fail since Esra is not able to free herself from the stranglehold of her mother, her seriously ill daughter Ayla and her daughter’s father. The first-person narrator’s relationship with the novel character Esra is described at various levels, out of sequence with many flashbacks, and in great detail. It covers Esra’s thoughts of aborting her second child, which she does not do in the end because she wants to have the child as a replacement for her terminally ill child; this is at least what the first-person narrator’s thoughts imply. In several places in the novel, sexual acts between Esra and the first-person narrator are described.

Esra’s mother, the novel character Lale, owns a hotel on the Aegean coast of Turkey and wins the Alternative Nobel Prize in the original version of the book for her work as an environmental activist; in the version of the novel which was revised following the settlement efforts between the parties, she receives the “Karl Gustav Prize”. There are clear and striking similarities between her biography (number of marriages and children, places where she lived and places where things happened) and that of the second plaintiff. In the novel, the main responsibility for the failure of the relationship between Adam and Esra is attributed to the character of Lale. She is portrayed in an extremely negative light. According to the judgment of the Federal Court of Justice, she is portrayed as a depressed, psychologically ill alcoholic, who tyrannises her daughter and her family.

II.

1. The plaintiffs motioned the Regional Court for the grant of a temporary injunction prohibiting the dissemination of the novel shortly after its publication when it had already sold about 4,000 copies. In the course of proceedings, the complainant gave several undertakings in which it offered not to publish the novel except with certain deletions and amendments in order to avoid a contractual penalty. The proceedings ended with the rejection of the motion for a temporary injunction in view of the undertakings which had meanwhile been given. After the termination of the temporary injunction proceedings, the complainant published a “cleansed” version of the novel with certain omissions.

2. a) During the proceedings in the main action, the plaintiffs alleged in essence that the book amounted to a biography without any significant deviation from reality; at these proceedings on 18 August 2003, the complainant gave a final undertaking (which was more far-reaching than the one relating to the “cleansed” version) and offered in particular to change the names of the prizes awarded to the novel characters Esra and Lale and the reasons for receiving the prizes. The plaintiffs claimed in essence that it was possible to identify them without any problem also in the amended version of the novel. Furthermore, they claimed they had been defamed and portrayed in a disparaging manner. The first plaintiff was of the view that the extensive, and in part offensive and insulting, depiction of her sex life, the family relationships and the disputes between the plaintiffs, the discussions with her husband as well as the description of her daughter’s illness were an encroachment on her intimate sphere which enjoys absolute protection.

b) The complainant submitted in essence that the book was not a roman à clef. It claimed that a lot of what happens in the book did not occur in reality. In its view it was not correct that events and persons were largely taken from the biographies of the plaintiffs.

3. The Regional Court ordered the complainant under penalty of an administrative fine to refrain from publishing or having published, distributing or having distributed, selling or having sold and advertising or having advertised the book “Esra”.

The Regional Court held that the asserted claim to an injunction was well-founded pursuant to § 1004 and § 823 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) in conjunction with Article 2.1 of the Basic Law. It further held that the challenged novel violated the plaintiffs’ general right of personality in a way which meant that artistic freedom in Article 5.3 sentence 1 of the Basic Law had to take second place to it.

The Regional Court found that the plaintiffs were recognisable in the characters in the novel. The depiction of the character Esra as the winner of the 1989 Federal Film Prize for her portrayal at the age of 17 of a young Turkish girl who falls in love with a German and the depiction of Esra’s mother as the winner of the 2000 Alternative Nobel Prize for her protests against gold mining in Turkey were of a prime importance for their recognisability. The Chamber assumed that of all people the large Turkish community in Germany (to which the plaintiffs also belonged) would still be aware after 14 and three years respectively of two of their members receiving not insignificant prizes and would make the connection with the plaintiffs.

It took the view that the complainant could not rely on the fact that in the disputed version of the book the Alternative Nobel Prize was changed to the “Karl Gustav Prize” and the Federal Film Prize was changed to the “Fritz Lang Prize” both of which do not exist. It found that the version of the book which had been published first had to be taken into account in deciding whether the two plaintiffs were still recognisable in the disputed version in view of the aforementioned changes. As far as it was concerned, especially the correspondence between the description of the two plaintiffs as winners of the Federal Film Prize and the Alternative Nobel Prize and the facts in the version that was first published led to their recognisability and thus their being individually affected. It thought that if one were to base the recognisability of the plaintiffs entirely on the currently disputed version, this would result in the plaintiffs being disadvantaged by the fact that they had protested against the version of the book in which it had been easy to recognise them.

After weighing the circumstances of the individual case, the Regional Court was of the opinion that one had to assume that there had been such a serious encroachment on the plaintiffs’ general rights of personality that the artistic freedom guaranteed in Article 5.3 sentence 1 of the Basic Law had to take second place to it.

It was not possible to recognise that the copy had become independent from the original in the present case. The Regional Court found that the author had – except for the names – based the family relationships portrayed in the book one-to-one on reality. The description amounted to a violation of the first plaintiff’s intimate sphere. She had had an intimate relationship with the author. If the first-person narrator of the novel then also had a sexual relationship with the novel’s main character Esra, who was identifiable as the first plaintiff, this would affect the first plaintiff’s intimate sphere. Thus, in the Regional Court’s view whether or not the sexual practices described reflected reality or were purely fictional did not matter.

In addition, the Regional Court found that the description of the illness of the first plaintiff’s daughter amounted to a very considerable violation of the first plaintiff’s rights of personality. It was used to explain among other things the problems which arose in the relationship between the mother of the sick child and the first-person narrator. In the Regional Court’s view, the details of the child’s illness did not belong in the public domain.

4. The Higher Regional Court dismissed the appeal by the complainant against the Regional Court’s judgment. It found that the plaintiffs’ general rights of personality were violated by the publication of the novel.

It was possible to recognise them in the novel characters Esra and Lale and in the plot and intertwined relationships in the book. The Higher Regional Court was of the opinion that they were personally and directly affected by the publication of the book. The plaintiffs were presented in a recognisable way for a not insignificant readership. The copy had not been sufficiently altered as to make it distinguishable from the original. There were such striking similarities between the appearance and lives and careers of Esra and Lale on the one hand and that of the plaintiffs on the other that it was not possible for the reader to distinguish between fact and fiction.

In the Higher Regional Court’s view there were serious encroachments on the first plaintiff’s private and intimate spheres. Moreover her right to her own biography had been violated. As far as it was concerned, she did not have to put up with these encroachments.

Her privacy was violated by the description of the serious illness of the daughter of the novel character Esra. Due to the way things were presented in the book, the reader was given the impression that the first plaintiff’s daughter (who really was seriously ill, but not aware of it according to the first plaintiff) was terminally ill because of the first plaintiff’s lack of care. Furthermore, the Higher Regional Court found that the impression was created that the first plaintiff only became pregnant again because she was afraid of losing her daughter.

The Higher Regional Court held that the first plaintiff’s intimate sphere had been violated by the details of Esra’s sex life including an attempted abortion. Since readers could not distinguish between fact and fiction, they would equate what they read with the real-life details of the first plaintiff’s sex life. Readers who had identified the first plaintiff would in addition equate the feelings and thoughts of Esra with those of the first plaintiff. The encroachment on the first plaintiff’s general right of personality was so serious that it was not justified by the complainant’s right of artistic freedom.

The Higher Regional Court found that the second plaintiff had also been directly affected by the publication of the book and her general right of personality had also been violated. The book was a serious encroachment on the second plaintiff’s privacy and her right to her own biography. As in the case of the first plaintiff, it was not possible in the case of the second plaintiff to distinguish between fact and fiction. Readers who had identified the second plaintiff would equate the character traits of Lale with those of the second plaintiff. This was at the same time a violation of the second plaintiff’s right to her own biography.

Banning the book was not disproportionate in the view of the Higher Regional Court. An order to black out individual passages was not a solution since it was necessary to change the entire structure and presentation of the book. The Higher Regional Court explained that the task of the courts was to determine whether the publication of a certain version of a book should be prohibited. However, they were not entitled to act as if they were the author and create a different version of the book and make artistic changes to it.

5. The Federal Court of Justice dismissed the appeal on points of law against the judgment of the Higher Regional Court.

It held that the claim for an injunction was well-founded. In its opinion, under the circumstances of the case in dispute the fundamental artistic freedom guaranteed in Article 5.3 sentence 1 of the Basic Law had to take second place to the plaintiffs’ general right of personality, which was also guaranteed by the Basic Law. The plaintiffs’ general right of personality was violated by the novel even if one considered the changes made in the text on the basis of the undertakings.

The Federal Court of Justice took the view that it was not a prerequisite for the recognisability of the plaintiffs “that a not insignificant readership would readily” recognise them in the novel characters. This formulation from the Federal Constitutional Court’s decision of 24 February 1971 (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts ( BVerfGE 30, 173 (198)) was based on the standard applied by the civil courts at the time. The Federal Court of Justice thought that this standard was, however, too narrow because recognisability by a more or less large circle of acquaintances or in a person’s immediate personal surroundings was in principle sufficient. A person was recognisable if he or she were sufficiently recognisable at least for some of the readers or target audience on the basis of the information given even without being named. If one applied this standard, the Higher Regional Court’s opinion that the plaintiffs were recognisable in the novel characters Esra and Lale was not objectionable. This was particularly true in view of the significant similarities which were recognisable in the novel between the outward appearance and lives and careers of the plaintiffs and those of the novel characters Esra and Lale as well as the award of the Federal Film Prize to the first plaintiff and the Alternative Nobel Prize to the second plaintiff.

The Federal Court of Justice held that the encroachment on the plaintiffs’ general rights of personality was illegal. Whether or not there was a violation of their general rights of personality should be ascertained by weighing the rights and interests in the individual case that had to be decided. In the Federal Court of Justice’s view the recognisability of the plaintiffs was not of itself sufficient to establish a right to an injunction. Instead it was necessary for there to be in addition a serious violation of their rights of personality which could no longer be justified on the basis of Article 5.3 sentence 1 of the Basic Law. The Federal Court of Justice took the view that the guarantee of artistic freedom was not limitless. It elaborated that it was true that the fundamental right of artistic freedom was not subject to the constitutional necessity for the enactment of a specific statute. However, in their treatment of persons in their surroundings artists also could not ignore such persons’ rights of personality which were constitutionally protected as well. According to the Federal Court of Justice, the interests of both had to be weighed against one another; in doing so it was especially necessary to also consider that the character and importance of the text complained of as an artistic statement would be able to influence how it was understood in the social area where it would take effect. Neither one of the legal interests took precedence over the other from the outset. It was true that serious impairment of the right of personality that could be ascertained without a doubt could not be justified by the right to artistic freedom. This did not mean, however, that one could examine the question of whether there had been such a serious impairment in isolation, i.e. without taking into account the character of the work.

The author did not create in the characters Esra and Lale fictitious characters that were independent of the plaintiffs as the originals on which they were based. Even taking into account the fact that it was a novel did not mean the text could be understood in another way. The Federal Court of Justice stated that a work of art does not just have an aesthetic reality, but has in addition a real-life existence, which was presented with some artistic licence without losing its socially related effects. These effects at the social level developed “alongside” the independent area of art; at the same time they had to be acknowledged in view of the area protected by Article 5.3 sentence 1 of the Basic Law since the “real” and the “aesthetic” world combine into a single whole in a work of art. The Federal Court of Justice stated that if a novel character is modelled on a real-life person, this person’s incorporation in the narrative would not therefore of itself result in the novel character becoming an independent copy.

Whether or not this had occurred had to be examined in each individual case. The Federal Court of Justice held that this had not happened in the case in dispute. The actual, verifiable traits of the novel characters Esra and Lale which corresponded with those of the plaintiffs were numerous and so characteristic that in comparison any existing differences receded. The author had failed to use artistic means to alter them so that they were different. The novel characters presented by the author to readers who had recognised the persons described were not just characters but the plaintiffs in real life. This impression was strengthened by the fact that the data on the book jacket regarding the author’s person corresponded with the data of the first-person narrator. According to the Federal Court of Justice, an author who makes persons recognisable in such a way that novel characters can be clearly identified as persons who exist in real life revokes the understanding between the author and reader that the literary work is a piece of fiction. The plaintiffs did not have to tolerate such a “portrait” of themselves in book form. The impairment of their rights weighed so heavily that precedence had to be given to the protection of their general right of personality over the complainant’s artistic freedom.

The book encroached in an illegal manner on the first plaintiff’s intimate and private spheres irrespective of whether or not the numerous details of the novel character Esra’s sex life and attempted abortion corresponded with events in the first plaintiff’s life.

Furthermore, the Federal Court of Justice found that the novel also exceeded in the case of the second plaintiff the licence given by artistic freedom. If the biography of a specific person, who, as in the case in dispute, was clearly recognisable as a real-life person and not just as a novel character, were radically and seriously distorted through pure fabrications, then the limits set by the general right of personality would be exceeded. The second plaintiff was described in the character of Lale as a depressed, psychologically ill alcoholic; a woman who tyrannised her daughter and family and who was domineering and argumentative; a woman who neglected her children; who invested her prize money in her bankrupt hotel; who stole her parents’ land and who set the Mafia on them; who only fought against gold mining because no gold could be found on her own property that she had acquired by devious means; who took out a big fire insurance policy before her hotel went up in flames; who pressured her daughter to have an abortion; and who was betrayed by her first husband and beaten by her second husband who was also an alcoholic. The Federal Court of Justice did not regard these kinds of serious distortions of the truth as being covered by artistic freedom.

The Federal Court of Justice found that the prohibition of the dissemination of the whole book was not – contrary to the view of the appellate court – disproportionate. It was justified because the text passages complained of were important for the total concept of the work and for understanding the goal sought to be achieved by it. Since the whole book was filled with numerous allusions to and descriptions of the plaintiffs, it would be necessary to modify its entire structure and presentation if the Federal Court of Justice were to order that certain passages be changed; this kind of order was regarded as the least burdensome remedy by the complainant. The Federal Court concluded, however, that it was not the task of the courts to delete certain passages so as to reduce the violation of rights of personality to the permissible degree since there were a variety of ways of making such changes and the character of the book would undergo considerable change through such modification.

B. – I.

In its constitutional complaint the complainant alleges inter alia a violation by the challenged decisions of its right under Article 5.3 sentence 1 of the Basic Law.

1. The complainant submits that the challenged judgment of the Federal Court of Justice is based on a fundamentally erroneous view of the significance of artistic freedom. In particular, the Federal Court of Justice in weighing the interests overextended the scope of protection of the plaintiffs’ general right of personality and in doing so narrowed the scope of protection of the complainant’s right to artistic freedom in an impermissible way. According to the complainant, the judgment is flawed because the standard used for evaluating the recognisability of the plaintiffs – and leading to their being personally affected – was incorrect and inappropriate to the work.

In the complainant’s opinion, the Federal Court of Justice was wrong in assuming that the plaintiffs were sufficiently personally affected if they could be recognised by a more or less large circle of acquaintances. In doing so the Federal Court of Justice was following the case-law of the superior courts on the recognisability of persons who are the subject of reports in the press. The complainant believes that this standard does not do justice to the character of the forbidden novel as a work of fiction. It alleges that even if one cannot ignore the fact that a work of art does not just have an aesthetic reality, but has in addition a real-life existence, one cannot rely alone on the effects of the work of art in the non-artistic social sphere when reconciling the tension between the protection afforded the right of personality and artistic freedom; instead one has to taken into account the considerations specific to art. For this reason, the fact that the banned novel was a novel was relevant of itself for the question of whether the plaintiffs were recognisable in the characters of Esra and Lale.

Two points follow from this. On the one hand, the reader recognises that the book is a work of fiction and consequently does not purport to be true so that the novel characters are not portraits of real-life originals. On the other hand, it follows from the weight and significance of artistic freedom that a stricter standard must be applied to the recognisability of persons who see themselves portrayed in a novel character than is applied to those persons who are exclusively the subject of press reports that affect real-life facts and always purport to be true. The complainant alleges, that by allowing the recognisability of the plaintiffs in their circle of acquaintances to be sufficient to show that they were individually affected, the Federal Court of Justice diverged from the Mephisto decision handed down by the Federal Constitutional Court (BVerfGE 30, 173 (198)) in which the Federal Constitutional Court found that a not insignificant readership would readily recognise the actor Gustav Gründgens in the novel character Hendrik Höfgen. Furthermore, the Federal Constitutional Court like the Federal Court of Justice in its Mephisto judgment (Decisions of the Federal Court of Justice in Civil Matters (Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ) 50, 133 (141)) based its decision on the fact that Gründgens was a contemporary public figure.

In the complainant’s opinion, the Federal Court of Justice also erroneously assumed that there had been a serious violation of the right of personality. In particular, it assumed incorrectly that the two novel characters presented were not types of people but rather the plaintiffs in their social context. According to the complainant, it was only because the Federal Court of Justice understood the text in this way that it found that there had been impairments of the right of personality which could be ascertained without a doubt. The complainant alleges that it is evident for every reader that the novel does not purport to be true and that it therefore cannot be misunderstood by the reader as depicting actual experiences of real-life people. The Federal Court of Justice erred to the extent that it found that because many circumstances were described in the novel which provided striking similarities between the lives and careers of the plaintiffs and those of the characters in the novel, the author had not created in the characters Esra and Lale fictitious characters that had become independent of the originals on which they were based. The complainant argued that the plot had originated primarily in the imagination of the author. By no means had the plot or the general outline of the novel been taken from the biographies of the plaintiffs. There were as a result of the artistic alterations considerable differences between the novel characters and events on the one hand and reality on the other hand; these differences would be recognised particularly by readers in the plaintiffs’ circle of acquaintances. In the complainant’s view it was apparent from all of that that the novel characters appeared to have become independent due to the artistic presentation of the material; that the individual, the intimate had been objectivised in favour of the general and symbolic representation of the characters; and that the author thus – unlike what the Federal Court of Justice had decided had happened in the case of Klaus Mann’s Mephisto novel – did not paint original portraits of the plaintiffs. Furthermore, it is not the task of the state courts to set quality standards by which to judge whether something has been sufficiently altered and thus to define the artistic creative process. According to the complainant, the broad scope of discretion which the courts allowed themselves on this point was a considerable danger to artistic freedom.

The complainant submitted that even if one assumed that statements about the plaintiffs that purported to be true could be derived from the novel, one could not base a ban of the book on this. To the extent that the Higher Regional Court, as the highest court for judging the facts, was of the opinion that the reader could not actually recognise which parts of the novel were fiction and which passages purported to contain true information about the plaintiffs, this could only amount to the possibility that there had been a serious legal violation; such possibility could not be a basis for banning a novel since in the interests of artistic freedom, the existence of a serious legal violation had to be clear beyond doubt. Since one could not rule out the possibility that the reader would classify some circumstances as fiction, the requirements for a ban laid down by the Federal Constitutional Court (BVerfGE 67, 213 (228)) had not been fulfilled.

The complainant is of the opinion that the Federal Court of Justice’s judgment indicated that its view of the protective scope of the plaintiffs’ personality rights, which had to be weighed against artistic freedom, was fundamentally erroneous. To the extent that it found that there had been a violation of the first plaintiff’s intimate sphere, its finding was wrong since her intimate sphere could not be violated by descriptions of conduct which had not in reality occurred. According to the complainant, the Federal Court of Justice’s view that the reader’s impression would be that the details given of the novel character Esra’s sex life had also occurred in the first plaintiff’s sex life did not necessarily follow. What was affected was not a person’s intimate sphere, which was not an interest that could be weighed against other interests, but the group of personality rights cases involving the distortion of the biographies of those affected.

As far as the complainant was concerned, the Federal Court of Justice had found in relation to the second plaintiff that her right of personality had been violated by the negative distortion of her biography, but had failed to explain which false allegations of fact had violated her general right of personality in an illegal manner. The Federal Court of Justice should not, however, have dispensed with explaining clearly and in detail which passages in the novel created which false impression because, due to the particularly serious encroachment on artistic freedom associated with a ban, particularly strict standards had to be applied when deciding whether there had been an encroachment on the right of personality and whether the encroachment had been illegal. This was all the more true since the Federal Court of Justice itself thought it would be possible to avoid legal violations in the future by making changes to the novel and the complainant had made numerous suggestions in the course of the litigation for deletions and changes. In light of the aforegoing, the Federal Court of Justice’s omission to explain clearly where the dividing line between permissible and impermissible novel passages was had also violated the complainant’s fundamental right to artistic freedom.

Even if the Federal Court of Justice’s decision to limit artistic freedom in order to protect the plaintiffs’ general right of personality might not be constitutionally objectionable, the ban on the dissemination of the novel in its entirety violated the proportionality principle. Nor did the Federal Court of Justice doubt that deletions instead of a total ban would be suitable for reducing the violations of the right of personality to a degree which was finally still acceptable. Consequently, there was no need for a total ban.

2. In the opinion of the complainant the judgment of the Higher Regional Court also violated its right to artistic freedom. It argued that the Higher Regional Court had erroneously taken into account that due to the temporary injunction and subsequent proceedings, the case would provoke public discussion and that facts making the plaintiffs identifiable would become public through the press reports of the case. This conflicted with the requirement imposed by artistic freedom that a novel be judged by a standard appropriate to its form and that circumstances outside the novel not be considered.

The finding by the Higher Regional Court that the account of the illness of the novel character Ayla amounted to an illegal encroachment on the first plaintiff’s private sphere was the result of too broad a definition of the private sphere and consequently the first plaintiff’s right of personality. In the view of the complainant, the Higher Regional Court had allowed the fact that the plaintiffs were indirectly affected to be sufficient and had allowed this to outweigh artistic freedom in the specific case.

3. According to the complainant, the Regional Court had also decided on the basis of unconstitutional considerations that the plaintiffs were recognisable; had also found due to its fundamentally erroneous understanding of the significance of conflicting fundamental rights that there had been serious violations of the plaintiffs’ rights of personality; and had issued a total ban on the novel which was disproportionate.

II.

The Börsenverein des Deutschen Buchhandels, the Verband deutscher Schriftsteller in der Vereinten Dienstleistungsgewerkschaft, the P.E.N.-Zentrum Deutschland and the plaintiffs in the initial proceedings were among those who submitted opinions on the constitutional complaint.

1. The Börsenverein des Deutschen Buchhandels is of the view that the challenged decisions do not sufficiently taken into account the nature of the novel as a work of art. This is particularly clear in the examination of the plaintiffs’ recognisability and in the violation of their rights of personality in connection with the weighing of fundamental rights. By allowing the recognisability of the plaintiffs by a more or less large circle of acquaintances to be sufficient, the Federal Court of Justice diverged from the standard laid down by the Federal Constitutional Court in the Mephisto decision. These lower requirements were borrowed from press law, which is concerned, however, not with how to weigh one person’s artistic freedom against another person’s right of personality but with freedom of expression and freedom of the press. According to the Börsenverein des Deutschen Buchhandels, when the courts examined whether there had been a violation of the plaintiffs’ rights of personality, the approach they took was not specific to art and they compared the appearance and conduct of the novel characters Esra and Lale with the personal image of the plaintiffs as if Esra and Lale were real people. This led to the fundamental right to artistic freedom losing its position of predominance vis-à-vis the other fundamental rights related to communications.

In the opinion of the Börsenverein des Deutschen Buchhandels, there had to be not only recognisability, but also an independently ascertained violation of the right of personality. A finding that the details of the characters had not been sufficiently altered was not enough because the issues of recognisability and alteration were closely connected. In ascertaining a violation of the right of personality it was necessary to pay sufficient attention to the aesthetic level of effect. Since there were only conflicts with the right of personality at the social but not the aesthetic level, which level of effect characterised the work had to play a role; i.e. whether it was understood in its totality as a fictitious description or as a true story. If there were any doubt, the unconditional guarantee of artistic freedom had to be given precedence.

According to the Börsenverein des Deutschen Buchhandels it was characteristic of every piece of literature that it should be based on models. If this were only possible in the future through risking one’s financial survival, this might have a prohibitive effect on the book trade. Publishers would possibly be reluctant or would even refuse to publish the novels of some streams of literature. “Postmodernist” works and works of “subjective realism” (which is the genre to which “Esra” belongs) could be hit especially hard. The interlocking of autobiographical and fictional elements, which significantly characterises contemporary literature, is a feature of this stream of literature. If the challenged decisions were to be upheld, this would affect all publishing houses whose main publishing category was contemporary literature.

2. The Verband deutscher Schriftsteller shares the opinion of the publishing house bringing the complaint. It argued that the possibility could not be ruled out that, due to the challenged decisions, restrictions on literary creativity which were incompatible with the artistic freedom of authors might develop. The fact that the courts thought it was enough if the plaintiffs could be identified by their immediate circle of acquaintances set the threshold for a public ban far too low. It said that there was barely a work of fiction in relation to which someone or other did not feel targeted. Freedom of art would be curtailed if a novel character in which someone thought they recognised themselves had to be treated in the same way as a report.

3. The P.E.N.-Zentrum Deutschland is of the view that the novel does not claim to be objective. It says that it was the litigation in relation to “Esra” which first revealed the true names of the people who had been included in the narrative so that hardly anyone today can distinguish the story characters from the real-life characters. According to the P.E.N.-Zentrum Deutschland it is not the author’s fault that this is the case. The novel is – unlike Klaus Mann’s “Mephisto” – not a roman à clef in which the author wants a certain person to be recognised. By himself exploring the taboo of the ban on writing about private things, which he characterises on the part of Esra as a narrow-minded, unpleasant and petty bourgeoisie fear of literature, the author claims artistic freedom for himself.

The P.E.N.-Zentrum Deutschland is of the view that the fundamental right of protection of personality is somewhat different in relation to artistic freedom than in a journalistic context. Protection of personality can only be determined through examining the legality and the aesthetic conditions of the work. Insufficient heuristic efforts in relation to the work in question were made in the challenged decisions. This was already clear from the selection by the Federal Court of Justice of the “circle of acquaintances” or the “immediate surroundings” as the standard for recognisability rather than the “informed average reader”. To the extent that the Higher Regional Court alleged that the reader could not distinguish between what was fact and what was fiction, this was evidence of a logical inconsistency that assumed that novel characters were to a large extent identical with real people and then used any fictional differences as grounds for alleging there had been an impermissible distortion of the personal image of the real people.

4. The plaintiffs in the initial proceedings are of the opinion that the challenged decisions do not violate the complainant’s fundamental right under Article 5.3 sentence 1 of the Basic Law. They claim that the argumentation used in the constitutional complaint was based on two incorrect premises, namely that the novel characters, contrary to the findings of the non-constitutional courts, were fictitious and that, contrary to what is said in the constitutional case-law, there could not be a violation of the right of personality per se in novel form because a novel did not purport to be true. In taking this approach the constitutional complaint failed to recognise that one could then dispense with weighing and evaluating the individual case at hand and that artistic freedom would have absolute precedence constitutionally over the protection of personality. It would then be possible for any artist to abuse such freedom to degrade others and drag them into the public eye against their will simply by making reference to artistic freedom.

According to the plaintiffs, the challenged decisions were not based on either an erroneous view of the meaning and scope of artistic freedom nor on an overextension of the general right of personality. The non-constitutional courts had clearly weighed all the circumstances of the case taking into account standards specific to art and recognised that the author was simply painting portraits of the plaintiffs; they had also recognised that by encroaching on their private sphere (and in the case of the first plaintiff on her intimate sphere) and by encroaching on their right to their own biographies, he was seriously violating their rights of personality.

C.

The constitutional complaint is partly well-founded. The challenged decisions violate the complainants’ fundamental right under Article 5.3 sentence 1 of the Basic Law to the extent that they grant the second plaintiff an injunction.

I.

The decisions challenged in the constitutional complaint encroach on the complainant’s fundamental right to artistic freedom under Article 5.3 sentence 1 of the Basic Law.

1. Irrespective of the difficulty repeatedly stressed by the Federal Constitutional Court of conclusively defining the term “art” (see BVerfGE 30, 173 (188-189); 67, 213 (224 et seq.)), the challenged decisions are correct in regarding the novel “Esra” as a work of art, namely a free creative process whereby the artist in his chosen medium, in this case the novel, gives form to what he has felt, learnt or experienced (see BVerfGE 30, 173 (188-189); 67, 213 (226); 75, 369 (377)). Even if the main subject of the dispute which led to the present constitutional complaint is the degree to which the author describes real-life people in his work, it is at all events clear that his aim is to present this reality in an artistic manner.

It is not possible with the help of a fixed demarcation line to distinguish art and non-art from another according to the degree to which the artistic alteration has been successful; this is due to the often indissoluble bond between connections with reality and its artistic presentation, especially in the case of the novel as an art form, but also in the case of artistically presented autobiographies, reportages and other forms of expression (satire, documentary drama and faction).

2. As is the case with all rights of freedom, artistic freedom is directed primarily against the state. The express inclusion of artistic freedom in the Weimar Constitution (Article 142 sentence 1: “The arts, science and instruction are free.” was of itself a reaction to the authoritarian fight against new artistic developments (see Kitzinger, in: Nipperdey, Die Grundrechte und Grundpflichten der Reichsverfassung, 1929, Art. 142 Satz 1 WRV, pp. 455 et seq.). Following the mass persecution of artists during the National Socialist era, the adoption of the right to artistic freedom as an independent fundamental right in the Basic Law was completely undisputed (see Matz, in: Entstehungsgeschichte der Artikel des Grundgesetzes, Jahrbuch des Öffentlichen Rechts der Gegenwart – JöR, new version, Volume 1 (1951), pp. 89 et seq.).

At the same time the fundamental right is an objective decision in favour of artistic freedom, which must also be taken into account in the relationship between private parties, in particular where state courts seek to ban artistic works by reference to private rights (see BVerfGE 30, 173 (187 et seq.); 36, 321 (331)).

3. The guarantee of artistic freedom covers the “work produced” and the “effect produced” by artistic creation in the same way. Not just the artistic activity (work produced), but also the presentation and dissemination of the work of art are important for the encounter with the work as an enterprise that is likewise specific to art. This “effect produced” is the soil on which the guarantee of freedom in Article 5.3 sentence 1 of the Basic Law has until now mainly unfolded (see BVerfGE 30, 173 (189); 36, 321 (331); 67, 213 (224); 81, 278 (292)).

4. The complainant as a publisher is also entitled to rely on this fundamental right.

Article 5.3 sentence 1 of the Basic Law provides a comprehensive guarantee of the freedom of artistic activity. To the extent that the publishing media are needed in order to establish relations between the artist and the public, the persons who act as intermediaries are also protected by the guarantee of artistic freedom (see BVerfGE 30, 173 (191); 36, 321 (331); 77, 240 (251, 254); 81, 278 (292); 82, 1 (6)).

5. Even when the parties in civil litigation concerning a conflict between artistic freedom and the right of personality are arguing about positions that are protected by fundamental rights, their dispute is one between private parties whose resolution is primarily a matter for the civil courts. This applies in particular to findings of fact which are significant for a finding that there has been a violation of the right of personality. The banning of a novel is, however, a particularly serious encroachment on artistic freedom. The Federal Constitutional Court thus cannot restrict its review to the question of whether the challenged decisions are based on a fundamentally erroneous understanding of the significance of Article 5.3 sentence 1 of the Basic Law, in particular on an erroneous understanding of the scope of its protection. Instead the Federal Constitutional Court must review the compatibility of the challenged decisions with the constitutional guarantee of artistic freedom on the basis of the specific circumstances in the case before it (see the dissenting opinion of Judge Stein, BVerfGE 30, 173 (201-202)).

II.

The encroachment on the complainant’s fundamental right of artistic freedom resulting from the ban on the novel is only partly justified.

1. Artistic freedom is not subject to an explicit constitutional necessity for the enactment of a specific statute. It is not, however, guaranteed unlimited protection, but immediately reaches its limits in other provisions of the Basic Law which protect a legal interest that is also significant in the constitutional order of the Basic Law (see BVerfGE 30, 173 (193); 67, 213 (228)).

Especially if in the interests of protecting artistic self-determination one gives the term “art” a broad definition and does not from the outset attempt with the help of a narrow definition of art to exclude artistic forms of expression that conflict with the rights of others from the constitutional protection of artistic freedom (as in the approach taken by the Federal Constitutional Court, Order of the Preliminary Examination Committee (Vorprüfungsausschuss) of 19 March 1984 – 2 BvR 1/84 –, Neue Juristische Wochenschrift – NJW 1984, p. 1293 (1294) – “Zürich sprayer” case), and if one includes in the protection not just the work produced but also the effect produced, then this must ensure that persons whose rights are impaired by artists are also able to defend their rights and, even taking into account artistic freedom, are able to enjoy effective protection. In these situations the state courts are obliged to uphold the fundamental rights of both sides equally. Encroachments on artistic freedom in reaction to private lawsuits are not cases of state “censorship of art”, but must be examined to see whether they do justice equally to the fundamental rights of both the artists and those affected by the work of art.

This applies especially to the right of personality protected by Article 2.1 in conjunction with Article 1.1 of the Basic Law (see BVerfGE 67, 213 (228)). The case-law of the Federal Constitutional Court gives this especially high priority. This is particularly true in the case of its decisions on the core of human dignity (see BVerfGE 75, 369 (380); 80, 367 (373-374)). The right of personality complements the rights of freedom laid down in the Basic Law and safeguards the narrower personal sphere of life and the prerequisites for it (see BVerfGE 54, 148 (153); 114, 339 (346)). Consequently, it can also be considered a limit on artistic depictions.

The scope of the right has not been generally and conclusively elaborated. It is recognised as covering the right to dispose of depictions of one’s own self, social recognition and personal honour (see BVerfGE 54, 148 (153-154); 99, 185 (193); 114, 339 (346)). A significant guarantee is protection against statements which could be detrimental to the reputation of a person, and in particular, his or her image in public. The general right of personality protects a person especially from false or distorted depictions which are not entirely insignificant for the development one’s personality (see BVerfGE 97, 125 (148-149); 99, 185 (193-194); 114, 339 (346)).

The protection of the right of personality also extends to the relationship between children and parents. Children require special protection because they have yet to develop into responsible persons (see BVerfGE 24, 119 (144); 57, 361 (382-383)). Thus the area in which children are entitled to develop and feel free from public observation must receive more extensive protection than the area of adults. The development of a child’s personality is mainly the responsibility of its parents. To the extent that the raising of children depends on an undisturbed relationship with them, the special protection of fundamental rights that they receive does not simply automatically extend for the benefit of their mothers and fathers (see also BVerfGE 76, 1 (44-45); 80, 81 (91-92)). Instead the specific parental care of children falls in principle within the scope of protection of Article 2.1 in conjunction with Article 1.1 of the Basic Law. The scope of protection of the general right of personality is thus enhanced by Article 6.1 and 6.2 of the Basic Law (see BVerfGE 101, 361 (385-386)).

2. The rights of personality of the plaintiffs in the initial proceedings are affected.

a) A prerequisite for this is that they are recognisable as models for the novel characters without the recognisability itself meaning that there was a violation of their rights of personality.

The challenged decisions found that the plaintiffs were recognisable as the models for the novel characters Esra and Lale. This assessment and the findings that it was based on are not constitutionally objectionable. In particular, the standard applied by the Federal Court of Justice requiring recognisability by a more or less large circle of acquaintances is also correct from the point of view of constitutional law. If in its Mephisto decision the Federal Constitutional Court constitutionally approved the standard applied by the civil courts according to which a not insignificant readership could readily recognise the dead actor Gustav Gründgens in the novel character Hendrik Höfgen since Gründgens was a contemporary public figure and the public’s recollection of him was still quite vivid (see BVerfGE 30, 173 (196)), then this was justified on the basis of the circumstances in that case; it does not define a necessary condition for the recognisability of novel characters under constitutional law. The protection of the right of personality vis-à-vis artistic works would otherwise be limited to celebrities, even though it is precisely recognition of a person by his or her immediate circle of acquaintances which can be especially disadvantageous (see Federal Constitutional Court, Order of the First Chamber of the First Senate of 14 July 2004 – 1 BvR 263/03 –, Neue Juristische Wochenschrift 2004, p. 3619 (3620) concerning a press-law case).

On the other hand, proof only through the inclusion of additional circumstantial evidence that a real person was the model for a novel character will not be sufficient to establish recognisability in the aforementioned sense. Since artists are often inspired by reality, a critic or literary scholar who researches carefully will be able to identify in many cases the models for novel characters or the actual events that form the basis of a novel. It would be too broad a restriction on artistic freedom if the above-mentioned possibility of identification was of itself a reason for finding that the person serving as a model was recognisable. Instead it is necessary at all events that a reader familiar with the circumstances feel compelled to make the identification. This normally presupposes that there is a large accumulation of identifying factors.

In the present case the plaintiffs’ recognisability according to this standard was correctly affirmed by the courts. With regard to the original version of the novel, this is not in doubt due to the clear identification of the plaintiffs resulting from the prizes awarded them (award of the Federal Film Prize to a 17-year-old Turkish woman, who plays the role of a Turkish girl who falls in love with a German boy and the award of the Alternative Nobel Prize to her mother for her activism against gold mining in Turkey using cyanide). The courts are, however, justified in finding that the renaming of the prizes in the last version of the book on which the proceedings are based does not remove the identification due to the continuing similarity of the facts (reasons for making the award and allusion to the Noble Prize) seen together with the numerous other details which the judgment of the Higher Regional Court in particular elaborates; instead the identification is positively compelling due to the combination and accumulation of numerous circumstances. It is first and foremost for the non-constitutional courts to ascertain the facts from which the recognisability of the persons affected can be deduced.

b) The plaintiffs are also not so slightly affected that their rights of personality have to take second place to artistic freedom from the outset. Acts and characteristics are attributed to the novel characters for whom the plaintiffs are recognisable as models; if the acts and characteristics are connected by the reader with the plaintiffs, they are suitable for seriously encroaching on the plaintiffs’ rights of personality.

3. Nonetheless, artistic freedom for its part places limits on the right of personality This also applies in the relationship between artistic freedom and the right of personality because the enforcement of this right vis-à-vis artistic freedom is more suitable than other private rights asserted against a work of art (see Federal Constitutional Court, Order of the Preliminary Examination Committee of 19 March 1984 – 2 BvR 1/84 –, Neue Juristische Wochenschrift 1984, p. 1293 with regard to ownership) for placing limits on the scope of artistic freedom. There is in particular a danger that public criticism and discussion of topics important for the public and society will be hindered by reference to the right of personality (see the dissenting opinion of Judge Stein, BVerfGE 30, 200 (206-207)).

In order to identify these limits in a specific case, it is thus not sufficient to determine in court proceedings an impairment of the right of personality without considering artistic freedom. If it is clear in a case in dispute that the exercise of artistic freedom by the writer impairs the right of personality of another person, then adequate consideration must be given to artistic freedom when deciding the civil-law action based on the general right of personality which is brought against such impairment. Thus it needs to be clarified whether the impairment is so serious that artistic freedom has to take second place to it. In view of the high significance of artistic freedom, slight impairment or the mere possibility of serious impairment is not sufficient here. If, of course, it is possible to determine with certainty serious impairment of the right of personality, then it can also not be justified by artistic freedom (see BVerfGE 67, 213 (228)).

The seriousness of the impairment of the right of personality depends in this context on the degree to which the artist suggests to the reader that he or she can connect the content of the work with real persons and on the severity of the impairment of the right of personality if the reader makes this connection.

a) It is a feature of narrative art forms (to which the novel belongs) that they are often, if not normally, based on reality from which the artist creates a new aesthetic reality. This makes it necessary to apply standards specific to art to determine what connection with reality the novel suggests to the reader in each situation in the novel in order to be able to assess on this basis the seriousness of the impairment of the general right of personality.

A work of art seeks to create its own “more real” reality that has become independent of “actual” reality in which actual reality is more clearly experienced on an aesthetic level in a new relationship to the individual. Therefore artistic depictions cannot be measured according to the standards of the real world, but only by aesthetic standards specific to art (see the dissenting opinion of Judge Stein, BVerfGE 30, 200 (204)). This means that the tension between the protection afforded the right of personality and artistic freedom cannot refer solely to the effects of a work of art in the non-artistic social sphere, but must also take into account considerations specific to art. Therefore a decision on whether there has been a violation of the right of personality can only be made by weighing all the circumstances of the individual case. In this connection, one consideration must be whether and how far the artistic presentation of the material and its incorporation into the work of art as an organic whole have made the “copy” become independent of the “original” by rendering objective, symbolical, and figurative what was individualised, personal, and intimate (see BVerfGE 30, 173 (195)).

The guarantee of artistic freedom demands that the reader of a literary work be treated as a responsible adult who is capable of distinguishing a literary work from an expression of opinion and differentiating between the description of actual facts and a fictitious story. In this connection, a literary work which is identifiable as a novel should therefore initially be seen as a work of fiction that does not purport to be factual. If one did not assume that a literary text was intended to be fictional, one would ignore the special qualities of a novel as a work of art and thus the requirements of artistic freedom. This presumption also applies from the start if real-life people are recognisable as the originals on which the characters in a novel are modelled. Since artistic freedom extends to such use of real-life models, there can also be no right to one’s own biography parallel to the right to one’s own image if this is understood as a right not to be the model for a novel character. However, in this context the publication in question must actually be literature which the reader can recognise as not purporting to be factual. A report that was falsely labelled a novel would not enjoy the protection of the application of standards specific to art.

The more an author separates a novel character from the original the character is modelled on and makes the character an independent artistic character (“verfremdet” (alters); see BVerfGE 30, 173 (195)), the more the author will benefit from the application of standards specific to art. In this context, fictionalisation does not necessarily mean that all traces of recognisability have to be totally removed, but instead that it has to be made clear to the reader that he or she should not assume that what is being related are facts. It is true that a work of art does not just have an effect on aesthetic reality but also on real-life facts. However, if one were compelled due to this “double effect” to always only consider the possible effects on real-life facts, artistic freedom could never take precedence in those cases in which a novel affects the personal sphere of other people. The opposite would be the case if one only focussed on the aesthetic reality. In this case, the right of personality could never take precedence over artistic freedom. Thus a solution can only be found in weighing both fundamental rights in a way that does justice to both of them.

b) How severely the right of personality is affected is crucial for this weighing.

The scope of this right has not been generally and conclusively elaborated. Its individual facets carry differing weights as possible limits on artistic freedom irrespective of the fundamental significance of the fundamental right.

The Federal Constitutional Court has consistently held in its case-law that a core area of a person’s private life is inviolable and enjoys absolute protection because of its particular proximity to human dignity (see BVerfGE 6, 32 (41); 6, 389 (433); 27, 344 (350-351); 32, 373 (378-379); 34, 238 (245); 35, 35 (39); 38, 312 (320); 54, 143 (146); 65, 1 (46); 80, 367 (373-374); 89, 69 (82-83); 109, 279 (313)). This core area enjoying absolute protection, which also includes in particular expressions of sexuality (see BVerfGE 109, 279 (313), is to be afforded a lesser degree of protection than a person’s private sphere (see BVerfGE 32, 373 (379 et seq.); 35, 35 (39); 35, 202 (220-221); 80, 367 (374-375)).

The various aspects of the right of personality should not be understood in the sense of a schematic order of priority, but rather as indications of the severity of the impairment by the literary work.

c) There is a correlation between the degree to which an author creates an aesthetic reality divorced from the actual facts and the severity of the violation of the right of personality. The greater the similarity between the copy and the original, the more serious the impairment of the right of personality. The more the artistic depiction touches on the aspects of the right of personality that are afforded special protection, the greater the fictionalisation must be in order to rule out violations of the right of personality.

4. According to these standards, the courts did not fully do justice to the requirements of artistic freedom in the present case. They allowed the claims of both plaintiffs in full although they showed clear differences as regards the weighing of artistic freedom and the right of personality.

a) The challenged decisions do not in relation to the second plaintiff apply in every respect the necessary standards specific to art; thus they violate the guarantee of artistic freedom in Article 5.3 sentence 1 of the Basic Law.

However, it is not constitutionally objectionable that the challenged decisions found that the details of the novel character Lale had only been slightly altered in comparison to the original on which she was based, i.e. the second plaintiff. Thus the courts determined in a constitutionally unobjectionable way that the second plaintiff was recognisable as the model for the novel character on the basis of a variety of biographical data, in particular the award of a prize.

Contrary to their own starting position and especially that of the Federal Court of Justice, according to which a ban on publication requires a serious violation of the right of personality in addition to recognisability, the courts are content with determining that the novel character Lale was portrayed in a very negative light and see this as a violation of her right of personality. In doing so they find after all that not everything written about Lale in the novel corresponds to the facts and regard precisely this as a reason for criticising the novel. The fact that the second plaintiff is recognisable as the model for Lale does not, however, mean that the novel suggests to the reader that all of Lale’s acts and characteristics must be attributed to the second plaintiff.

By doing this the decisions do not sufficiently take into account that the starting point for a novel is that it is a work of fiction. Nonetheless, it is not objectionable that the Federal Court of Justice does not consider a disclaimer at the beginning or end of a book stating that similarities with real people are purely coincidental and unintentional to be sufficient reason for finding that a text is fictitious. This must instead be evaluated on the basis of the text itself. If according to this evaluation a literary text turns out to be intended as a mere retaliation against or denigration of another person, the right of personality may well prevail.

This is not case, however, in relation to the present novel. It is true that “Esra” is realistic literature in the sense that the novel is set at real-life locations and has main characters who have realistic features. The author also definitely plays with the overlap between fact and fiction. To this extent he intentionally lets boundaries become blurred. Nonetheless, a reader familiar with literature will be able to recognise that the text is not limited to a report on real-life people and events, but that it possesses a second level beyond this realistic level. In the overall structure of the novel, the character of Lale plays an important role in the search for the person who is to blame for the failure of the relationship between Adam and Esra. The novel does not slide into denigrating the second plaintiff by using the novel character Lale to serve this function. Instead the author reveals in the same way his own character weaknesses through the character of the first-person narrator, who also fails in relation to his daughter, and who is marked by great inner conflict and jealousy. Precisely the raising of the question of blame and the emphasis on the difficult relationship between a man and his lover’s mother indicates that the novel has a second level.

This also applies in relation to the character of Lale since most of what the author writes about her is unlike in the case of Esra not from his own experience. Lale’s life story is a sweeping novel within a novel. Precisely the content of the novel which the second plaintiff objects to is very clearly a narrative; in part it is told impersonally just through the repetition of stories, rumours and impressions of other people.

Already for this reason the Federal Court of Justice’s description of the second plaintiff as “a depressed, psychologically ill alcoholic; a woman who (is described as) tyrannising her daughter and family and who is domineering and argumentative; a woman who neglected her children; who invested her prize money in her bankrupt hotel; who stole her parents’ land and who set the Mafia on them; who only fought against gold mining because no gold could be found on her own property that she had acquired by devious means; who took out a big fire insurance policy before her hotel went up in flames; who pressured her daughter to have an abortion; and who was betrayed by her first husband and beaten by her second husband who was also an alcoholic” only insufficiently applies the necessary standards specific to art. In this connection, statements, which could even be findings of fact, for example, in an autobiography or a critique of the winner of an Alternative Nobel Prize, are intermingled with fictitious statements and the Court’s own exaggerated interpretation. The Federal Court of Justice states, in response to the possible objection that some of the incriminating passages are true, that the complainant has not provided any proof of the truth; however, in doing so it expects the artist to produce something which on the basis of his own understanding of himself he cannot since he himself regards the depiction as fictional. Thus, on the basis of this approach, a work of art based on reality would have less protection than a factual report the truth of which had not yet been proven.

It is quite typical of a work of literature based on reality to mix real and fictitious accounts. Under these circumstances such literature would be denied fundamental-rights protection if it was enough for a violation of the right of personality that one could recognise the model for the novel character and that the novel character had negative characteristics. This kind of understanding of the right to one’s own biography would not do justice to the right to artistic freedom. Instead what would be necessary was at all events proof that the author was suggesting to the reader that certain parts of his or her account should be regarded as really having happened and that precisely these parts violated a right of personality because they contained false and defamatory statements or because they had no place whatsoever in the public domain since they went to the core of personality. The existence of such proof is not evident from the challenged decisions. Instead they ignore the fact that artistic freedom requires one to assume initially that a text is fictional.

b) On the other hand, to the extent that the challenged decisions awarded the first plaintiff a right to an injunction they are ultimately not constitutionally objectionable. Unlike in the case of the second plaintiff, the courts found not just that the first plaintiff was recognisable, but also that certain accounts in the novel amounted to specific serious violations of her right of personality. In this context, they relied in part on the violation of her intimate sphere and in part on the mother-daughter relationship in view of the life-threatening illness of the daughter. Both aspects can justify the ban.

aa) As the courts correctly determined, the first plaintiff is not just recognisable in the novel character Esra. Her role in the novel also relates to central events which occurred directly between her and the first-person narrator (who is not difficult to recognise as the author) during their relationship. As the courts correctly determined, her intimate relationship with the author as well as her marriage, the illness of her daughter and her new relationship were more or less directly derived from reality so that – unlike in the case of the second plaintiff – the novel does not suggest to the reader that these events should be understood as fictional; this is also because from the perspective of the novel the first-person narrator’s own experiences are presented.

bb) The right of personality of the first plaintiff is especially seriously affected precisely due to the realistic and detailed account of events originating from the immediate experiences of the author. This occurs, in particular, through the exact account of some of the most intimate details of a woman who is clearly recognisable as having really been an intimate partner of the author. This amounts to a violation of her intimate sphere and is thus a sphere of the right of personality belonging to the core of human dignity (see BVerfGE 109, 279 (313)). In this area, it is not possible for her or the author to provide proof of the truth nor can they be reasonably expected to do so. Due to the overriding importance of the protection of the intimate sphere, the first plaintiff, who is made recognisable as Esra, does not need to put up with readers asking themselves the question suggested by the novel, namely whether the events reported in the novel have also occurred in reality. Therefore a weighing of the artistic freedom of the publishing house lodging the constitutional complaint against the first plaintiff’s right of personality favours the latter (see also BVerfGE 75, 369 (380)).

cc) In addition, the account of the life-threatening illness of the daughter amounts to a serious violation of the right of personality of the first plaintiff. The daughter is also clearly identifiable for people in her social environment, for example, her classmates. In view of the special protection given to children and to the mother-child relationship (see BVerfGE 101, 361 (385-386), the account of the illness and the mother-child relationship characterised by it in the case of two clearly identifiable persons does not belong, as the Regional Court correctly stated, in the public domain.

c) The challenged decisions rightfully imposed a total ban on the book to the extent that they awarded the first plaintiff an injunction. It is not constitutionally objectionable that the courts did not limit their finding of an unjustified violation of the right of personality to certain passages of the novel in the operative part of their decisions or in their reasoning. In this respect the Federal Court of Justice’s reference to an older decision (Federal Court of Justice, judgment of 3 June 1975 – VI ZR 123/74 –, Neue Juristische Wochenschrift 1975, p. 1882 (1884-1885)) and corresponding view – according to which a total ban is not disproportionate if the text passages complained of are important for the total concept of the work and for understanding the goal sought to be achieved by it – are also not constitutionally objectionable. It is not the task of the courts to delete or modify certain passages so as to exclude a violation of rights of personality since there would be a variety of ways of making such changes and the character of the book would undergo considerable change through such intervention. Nonetheless, artistic freedom requires that the labelling of the violation of the right of personality is so specific that the author and the publishing house are able to deduce how they should remedy the defect. This occurred in the case of the first plaintiff.

It is evident from the aforementioned considerations that the complainant and the author must have an opportunity to establish a constitutionally unobjectionable situation by publishing a version of the novel which does not violate the first plaintiff’s right of personality. This could be achieved through changes which reduce the first plaintiff’s identifiability and through the removal of parts of the novel which violate her rights of personality. Due to the correlation between the degree to which an author creates an aesthetic reality and the severity of the violation of the right of personality, this means that “sexual matters” are not “made taboo” since an author is not prevented from describing intimate relations if he or she does not suggest to the reader that they should be connected with a certain person; nor does this mean that there is a ban on the use of biographical material such as in the work “The Sorrows of Young Werther” (“Die Leiden des jungen Werthers”), which is mentioned in one of the dissenting opinions. The fact that the dispute about the novel has at all events made it temporarily more difficult to reduce the identifiability is something that the author and the publisher have to put up with since it is a consequence of a violation of the right of personality against which the first plaintiff was entitled to defend herself.

III.

No other violations of constitutional law are evident. Contrary to the view of the complainant, the challenged decisions do not violate either the prohibition of arbitrariness (Article 3.1 of the Basic Law) or the right to a hearing in court (Article 103.1 of the Basic Law).

IV.

In relation to the second plaintiff, the challenged decisions are based on the constitutional defect outlined. The possibility that the courts would have decided differently if they had taken into account constitutional requirements presented, in particular, the necessary standards specific to art, cannot be ruled out. The matter must be referred back to the Federal Court of Justice pursuant to § 95.2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz).

V.

The decision on the reimbursement of expenses is based on § 34a.2 and § 34a.3 of the Federal Constitutional Court Act.

The vote on the decision was five in favour and three against.

Dissenting opinion of Judges Hohmann-Dennhardt and Gaier
on the order of the First Senate of 13 June 2007
– 1 BvR 1783/05 –

We do not agree with the decision of the majority of the Senate. In the case of the Mephisto decision of the Federal Constitutional Court (BVerfGE 30, 173 et seq.) it was the civil courts which, in weighing artistic freedom against the protection of personality of a person who is the basis for a novel, applied unsuitable recognisability criteria for measuring the seriousness of an impairment of the right of personality and ignored the necessity for applying standards specific to art for the appraisal of the novel; this was rightly criticised by Justices Stein and Rupp-v. Brünneck in their dissenting opinions. Now the majority of the Senate has elevated these criteria to use them as its own standard of measurement in the case of the “Esra” novel. In doing so it has restricted the artistic freedom guaranteed in Article 5.3 of the Basic Law in an intolerable manner (I.) In addition, this standard is applied in different ways with unacceptable results to both plaintiffs in the initial proceedings whose rights of personality were affected (II.). In our opinion, if the standards specific to art are applied, the novel “Esra” does not violate the rights of personality of the plaintiffs in the initial proceedings and thus may not be prohibited (III.).

I.

1. For a start, we concur with the opinion of the majority of the Senate (which differs in this respect from the opinion in the Mephisto decision) that the Federal Constitutional Court, in reviewing the decisions of the civil courts which ban a novel and thus encroach particularly seriously on artistic freedom, may not limit itself to the question of whether the challenged decisions are based on a fundamental misjudgement of the meaning and scope of protection of Article 5.3 of the Basic Law. Instead it must review the compatibility of the decisions with the guarantee of artistic freedom on the basis of the specific circumstances in the case before it. We also subscribe to the view that a conflict between the novelist’s and his publisher’s artistic freedom and the protection of rights of personality can only arise where it is not just possible to identify a person as the model for a novel character, but the person is recognisable as such; in this context, recognisability can be limited to a more or less large circle of acquaintances. The extent of the recognisability is not a question of whether a person is affected or not, but to what degree they are affected. Finally, we underscore the comments of the majority of the Senate that a novel, even if it is based on reality, elevates such reality to another aesthetic level, transforms it, further develops it, sets it in other contexts thereby creating new realities; thus it must in principle be regarded initially as a work of fiction that does not purport to be factual. In view of the fact that the author used his or her imagination in creating a new reality in the literary work, it may therefore not be measured against reality in order to find out whether the artistic depiction could nevertheless amount to a serious violation of the right of personality. Instead standards specific to art must be applied in this context to what was written; the Mephisto decision also regarded these standards as the relevant standards for such an examination, although they were not applied in that case after all (see BVerfGE 30, 173 (195)).

2. This standard specific to art, which was rightly claimed by the majority of the Senate, is then nevertheless applied again by it to reality. After all the type of literature, the specific genre of the novel, its forms of description and its thematic levels should [in the opinion of the majority of the Senate] not be used for measuring. Instead authors should only benefit from this standard to the extent that they divorce their characters from reality, in other words alter them. And what is relevant for the impairment of the right of personality by a work of art categorised and accepted as a novel is ultimately how much of a person is recognisable in it and which protected personal sphere of the person concerned is affected. The conclusion from this is that: The greater the alteration, the more the art, the greater the recognisability, the greater the impairment, and the more attention a person’s intimate sphere receives, the more alteration is required In our opinion, this leads to fallacies which do not do justice to artistic freedom.

It is contradictory to qualify the application of a standard which is itself based precisely on the fact that art transforms real-life facts into new realities and to make the application of such standard dependent on the degree to which the work of art differs from the real-life facts and then to treat the artistically transformed reality as though it were true after all. The application of quantitative measures for comparing a novel with reality does not do justice to the qualitative aspect of the artistic treatment of reality. Judge Stein has already drawn attention to this by elaborating that the degree of similarity between a novel character and the personal data of real people is in principle irrelevant. This is because such data was transformed into an aesthetic reality by the novelist in which an inseparable mixture of fact and fiction form an indissoluble combination (see BVerfGE 30, 173 (205-206)). If, as we also believe, the two cannot however be separated, their relationship to one another cannot be measured by degree. Art does not stop with a subjective view of reality; instead it creates its own worlds from reality and uses them to express the artist’s concerns.

Nor is it also obvious why it should be possible to conclude from the degree of recognisability of a person in a novel that his or her right of personality has been seriously impaired. The only consequence of recognisability is that the possibility of an impairment cannot be excluded. It cannot help to distinguish between what is fact and what is fiction in a novel. It is an example of circular reasoning if artistic freedom has to take second place in accordance with an increase in recognisable individual data of a person and to use this not only for finding an impairment but also for measuring its seriousness. Isolated instances of recognition do not indicate anything about whether the story in which they have been absorbed reflects real-life facts or to what extent real-life facts for their part have been elaborated in such a way that their content changes.

Finally, we do not consider it tenable to assume because there are recognisable references to certain persons that their rights of personality have been impaired and to conclude from this that the more a novel affects the core area of a person’s private life, in particular his or her intimate and sexual sphere, the more a violation of the right of personality must be excluded by fictionalising the model, i.e. alteration. As true as it is that a person’s intimate sphere belongs to the area of personality affecting his or her dignity, which therefore must be protected, it is wrong to conclude alone from the fact that a novel contains intimate scenes that they are a report on the true sex life of the person who is the model for one of the novel characters involved in the scenes and to conclude that they thus affect the person’s personal sphere which enjoys absolute protection. There are no indications of this other than the data which make the model recognisable. In addition, the question arises as to what kind of alteration is open to the author so that he or she can rule out an alleged impairment of fundamental rights. It cannot be intended that he or she change the account so that it no longer reflects possible real life. After all, if and how intimate relations occurred in real life, and if and how the author has perhaps already altered them is something that the reader cannot recognise. Nor does the alteration of the details of the person involved help much as long as he or she is recognisable as the model. Thus the only alternative would be to do without this novel character based on the real-life model or not to touch upon the intimate and sexual sphere in the novel. And to do this although what is supposedly being described is fiction. There can be no other conclusion from the statement of the majority of the Senate that an author is not prevented from describing intimate relations if he or she does not suggest to the reader that the intimate relations should be connected with a certain person. After all, if a person remains recognisable in a described intimate situation, then he or she is necessarily connected with the situation – irrespective of how many identifiable characteristics this recognition is based on. This also ultimately leaves an author the option of only using unrecognisable persons to present intimate relations or not to deal with them at all.

Such a notion limits artistic freedom in an unacceptable manner since it leads ultimately to making sexual matters taboo for art because they depend on being based on reality and there is thus always the danger that people will recognise themselves or be recognisable for others.

It is questionable whether Goethe’s novel “The Sorrows of Young Werther” would have to have been banned on the basis of the standards of the majority of the Senate – even if the majority of the Senate denies this. After all, at the time the epistolary novel was published, Charlotte Buff (who Goethe fell in love with while he was a law clerk in Wetzlar) was recognised in the novel character Lotte; in the novel Werther is supposed to be based on Goethe himself. Like the novel character Lotte, Charlotte Buff was already engaged at the time she met Goethe and then married. Her husband Johann Christian Kestner, who was portrayed in the novel character as Albert, Lotte’s fiancé and later husband, wrote at the time in a letter to a friend with regard to the novel the following: “Lotte did not, for example, have exactly the kind of relationship with Goethe or with anyone else in the way described in the novel. We really held this against him since various accompanying circumstances are too true and too well-known for people not to have connected them with us … Lotte’s portrait is wholly that of my wife (cited from: Bernhard von Becker, Fiktion und Wirklichkeit im Roman, Der Schlüsselprozess um das Buch „Esra“, Würzburg 2006, p. 16). In this context, it is indisputable that the novel contains extremely intimate scenes between Lotte and Werther. Both of the requirements that the majority of the Senate considers sufficient for a serious violation of the right of personality – clear recognisability of the persons referred to and accounts of intimate relations – are actually present here

II.

The majority of the Senate applies these standards, which do not do justice to artistic freedom, to examine in different ways whether the novel “Esra” violates the rights of personality of the plaintiffs in the initial proceedings (who recognise themselves in the novel) and in doing so uses additional criteria. It makes distinctions on the basis of stylistic methods and uses them to examine to what extent the author suggests to the reader that passages of his novel correspond to reality. This approach is also unsuitable for distinguishing fact from fiction in a novel and for determining whether a description amounts to a violation of the right of personality which is so serious that artistic freedom can no longer be used to justify it.

1. In the case of the second plaintiff on whom the novel character Lale is based, the majority of the Senate comes to the conclusion that the courts violated artistic freedom by omitting to apply standards specific to art to the novel. It takes the view that the negative depiction of this novel character is not sufficient to be the foundation for a violation of the right of personality; after all in the case of literature that is based on reality, fact and fiction overlap so that acts and characteristics cannot be attributed to the second plaintiff just like that. In the opinion of the Senate majority, the fact that the starting point for a novel is that it is a work of fiction had not been sufficiently considered. We concur wholeheartedly with this view and the reasons given. The only question is why the majority of the Senate refrains in this case from applying the standard for recognisability, devised by it and considered incorrect by us, which is supposed to indicate the violation of the right of personality and its extent. After all, the second plaintiff is no less recognisable than the first plaintiff. Instead of focusing on recognisability, the majority of the Senate now focuses on the way the novel character is described. The majority of the Senate takes the view that the assumption that a novel is fiction is also supported by the fact that the author described Lale mostly through his repetition of the stories, rumours and impressions of other people rather than from his own experience. In this connection, the stylistic method used is supposed to be an expression of and standard for judging whether the author suggests to the reader in certain places that he or she should regard what is described as actually having happened. However, in doing so the form of the narration is the basis for false conclusions about its validity and it is assumed that an author makes his or her method of narration depend on how close or how far his or her novel is from reality. However, there is not the slightest indication of this. The choice of stylistic method is primarily an expression of the author’s personal style of artistic writing, which fits in with the genre of the novel, its content and its subject matter. In addition, it is improbable that an author who wants to create a new story by interlacing reality with what he or she has imagined will let it be known in his or her novel or even suggest in his or her novel where the “truth” is to be found. Thus the majority of the Senate reaches the right result although only its reasoning that the challenged decisions failed to apply standards specific to art is correct.

2. On the other hand, the majority of the Senate regards the depiction of the novel character Esra as a serious violation of the first plaintiff’s right of personality. Unlike in the case of the second plaintiff, the majority of the Senate does not claim the application of standards specific to art. Instead the reasons given by the majority of the Senate for this result are that the first plaintiff is recognisable; that what the author writes about Esra is based directly on his own experience as well as being realistic and detailed, and that precisely for this reason it affects her right of personality especially seriously, and finally that the most intimate of details are given, which is something that she does not need to put up with; in this case too, the majority of the Senate concludes from the recognisability of the model and from the way the story is told that what is told corresponds to reality; in doing so it does not explain where it gets its knowledge from or on what it bases its assessment that what is described reflects what was experienced. This may well be a subjective impression from the perspective of a judge, but it can be viewed quite differently, in particular if standards specific to art are applied, which did not, however, occur here. And as far as the intimate scenes and the passages in which the first plaintiff’s child appears to be the model, the “validity” of what is told is no longer even supposed to be decisive. In these cases, the majority of the Senate invokes a categorical imperative – according to which such things do not have to be put up with and do not belong in the public domain – in order to find that there was a violation of the right of personality and to uphold the banning of the book. Morals alone without any indication as to whether what is described occurred in the way described or even occurred at all, whether it is not simply a poetic way of expressing feelings and conflicts or is perhaps intended to portray the first plaintiff after all, are not a yardstick which may be applied to art if art is supposed to be free as required by Article 5.3 of the Basic Law.

3. In addition, if one looks at the decision of the majority of the Senate in its totality, it is difficult to understand why it is that in the same novel with a similar number of nexi with the lives of the plaintiffs, the depictions and portrayal of characters should in one case be considered fictitious and in the other case factual. A novel is a complete work that is difficult to dissect into individual passages. Either the work as a whole is a novel and tells a fictitious story or it is not a novel at all. However, rightly, the majority of the Senate does not at all dispute that the novel “Esra” is a novel. For this reason, its content cannot be measured by two different standards. Only if there were indications making it clear that the novel form was being used in order to denigrate a particular person would there be a reason for a more critical assessment. This is, however, not the case with Esra especially if one compares the two novel characters. Furthermore, the need to view the work as a whole also becomes clear if one considers the consequences of the decision. After all, what use is it to the author and his publisher if they win the case in respect of the novel character Lale, but the book is still completely banned, and following the advice of the majority of the Senate to use other stylistic means and to alter the details of the novel character Esra wherever she appears would make writing another new novel necessary? And what does the partial referral of the matter back to the Federal Court of Justice achieve other than a glass bead game? After all if the Court follows the line of argument already advanced by the majority of the Senate and reaches the conclusion that the second plaintiff’s right of personality was not violated by the description of the novel character Lale, this will make no difference to the ban of the novel. If, however, it thinks that it has found passages in the novel in which the author has “suggested” to readers that they have discovered the “truth” about the second plaintiff and in doing so he makes defamatory false statements about her, then the court’s efforts only serve to uphold the ban of the novel and to make a decision on the costs in favour of the second plaintiff.

III.

If one proceeds on the premise that literature should for the sake of artistic freedom be evaluated on the basis of standards specific to art (as the majority of the Senate actually rightly requires), then it is not sufficient to simply identify the genre of the narrative, even if the genre does give an indication of how the text should be understood. The novel “Esra” must be classified as a novel also according to the view of the majority of the Senate; this indicates that the story in the novel is fiction, even if it relates to real-life people or events. However, this does not resolve conclusively whether the content of the narrative corresponds to the style of a novel and whether fact and fiction have formed a symbiotic relationship from which an independent story has arisen. However, a decision on this cannot be left to the much cited reader alone who has a more or less developed knowledge of literature and his or her own respective view of the novel. Even having a fictitious reader who was attributed certain qualities and deemed to evaluate and understand the novel in a particular way would not be of help here. Instead it is necessary to consult literary experts.

However, if one does this, one is confronted with the unanimous opinion that the novel “Esra” is about the relationship of the first-person narrator (whose details correspond with those of the author) and the novel character Esra (who is in some respects based on the first plaintiff); nonetheless this relationship is described from the perspective of the author and is used as a means of expressing not just subjective feelings, but also to deal, using this story outline in a multifaceted way, with topics which are reflected in what the novel characters say and how they act and which characterise and guide them. Literary experts point out the fact that in dialogues between Esra and the first-person narrator, the novel itself deals with how we perceive reality and raises the question of whether literature which deals with real-life facts can be misunderstood as representing reality, and in this connection the author provocatively questions himself and his own effect; for this reason one critic has described the book “Esra” as a disguised novel about the problem of romans à clef (see Bernhard von Becker, op. cit., p. 84). They show that the author’s references to real-life people and places are only for the purpose of emotively highlighting conflicts arising from individualisation, loneliness and cultural differences so as to reflect the situation in society; for this reason, the novel is representative of the literary movement of “subjective reality”, which is growing in Germany and abroad (see Anja Ohmer, Literaturwissenschaftliches Gutachten zu Esra von B., 2004, unpublished, p. 31). Finally, they show on the basis of the respective novel passages how the novel considers the search for identity in a multicultural world; how it raises the topic of the current way of dealing with the media; and how the author reflects on his own role and actions and in doing so inserts literary references into the story through citations and innuendos whereby the respective messages contained in the text are totally independent and divorced from the knowledge of the plaintiffs (see Michael Ansel, Buddenbrooks, Bilse und B.. Thomas Mann, der Schlüsselroman und die Kunstfreiheit, revised version of a speech given at the Evangelische Akademie Tutzing in 2007, p. 24). In view of the above, literary experts come unanimously to the conclusion that the novel “Esra” neither re-creates worlds of experience nor presents autobiographical material, but that it instead follows a literary-aesthetic goal and that it is a narrative construction – a novel (see Christian Eichner, York-Gothart Mix, Ein Fehlurteil als Maßstab? Zu B.s Esra, Klaus Manns Mephisto und dem Problem der Kunstfreiheit in der Bundesrepublik, unpublished opinion, Düsseldorf, Marburg 2007, p. 5).

This confirms not just our understanding of the book, but leads to the conclusion that in the case of the first plaintiff as well no violation of the right of personality is evident nor can any such violation be assumed. We continue to uphold what Justice Rupp-v. Brünneck said in her dissenting opinion in the Mephisto decision regarding the limits that also have to be imposed on artistic freedom for the sake of the right of personality. If it becomes obvious from looking at a novel as a whole that this art form is being abused, and that it is a cover-up, a device for insulting, defaming or denigrating certain persons, then this is no longer covered by artistic freedom (see BVerfGE 30, 218 (224)). Neither we nor the literary experts can see any intention of this kind on the part of the author in the novel “Esra”. If the book “Esra” is on that basis a novel, then what used to be real-life facts have dissolved into art. Thus it is no longer possible to distinguish between what is fact and what is fiction. “After all everything that works of art contain in the way of form and material, in the way of ideas and inspiration, have migrated from reality into the works of art and in doing so shed their reality”; we subscribe to this statement by Adorno (Ästhetische Theorie, editor: Rolf Tiedemann, Frankfurt 1990, p. 158). Therefore, the ban of the novel “Esra”, which is based on a violation of the rights of personality of the first and second plaintiffs and was imposed by the courts in the challenged decisions, is therefore an unconstitutional encroachment on the artistic freedom of the author and the complainant protected by Article 5.3 of the Basic Law.

Dissenting opinion of Judge Hoffmann-Riem
on the order of the First Senate of 13 June 2007
– 1 BvR1783/05 –

The Senate’s decision attaches greater importance to artistic freedom than what is known as the Mephisto decision (BVerfGE 30, 173). The Mephisto decision did hold that considerations specific to art must be applied when legally assessing the effects of a work of art, but did not make this duty far-reaching enough; in particular, its decision was not based on the presumption, which is now acknowledged by the Senate, that a literary text is fictional. Furthermore, the Senate makes it now clear that the recognisability of a person in a novel, even if he or she is attributed with negative qualities, is not a sufficient basis for a violation of the right of personality. Instead it needs to be shown, taking into account the presumption of fictionality, that the author is suggesting to the reader that the events described actually happened or that a person really actually had the qualities attributed to them.

Despite this development of the protection provided by Article 5.3 of the Basic Law which has to be acknowledged, there are two matters which I do not find convincing; first of all the jurisprudential reasoning and secondly the application of the principles to the specific case. Thirdly, my queries and criticism are followed by an attempt on my part to explain why there is a risk that the starting point used by the majority could fail to take account of the peculiarities of works of art or their protection.

The majority of the Senate is correct in regarding the judicial ban of the publication of the novel as an encroachment on artistic freedom. On the other hand, I do not find the explanations for why this encroachment should be partially justified convincing from a constitutional-law perspective. I would like to elaborate on the dissenting opinion of Justices Hohmann-Dennhardt and Gaier as follows:

1. a) Unlike the Federal Court of Justice, which considers the recognisability of a certain person as the model for a novel character sufficient for finding that such person’s right of personality has been impaired (it speaks of “encroachment”), the majority correctly finds that the recognisability initially only serves to show that a person is affected. Being affected – as the first step of the examination – is a necessary but not a sufficient condition for a possible violation of the right of personality.

b) In cases where recognisability is present, the second step required by the majority of the Senate is a finding that the degree to which a person is affected must not be so slight that the right of personality has to take second place to artistic freedom from the start. This leads to the introduction of a minimum threshold for the impairment of the right of personality: only impairments of the right of personality that reach a certain degree of seriousness can be the basis for a restriction of artistic freedom.

c) Since the majority finds that the threshold has been reached in the case at hand, they consider the interaction between artistic freedom and the protection afforded by the right of personality. They apply again the same formula as was used in the second step: They say that the impairment of the right of personality must be so serious that artistic freedom has to take second place to it. However, they obviously mean that the impairment has to be more serious than what is required in the second step: this has to be decided by weighing the right of personality against artistic freedom in the case at hand – thus it is in principle variable.

The application of standards specific to art are required in this third step (C II 3 a). In particular, their purpose is to determine what is within the area of fiction. Accordingly, the majority finds that there is a presumption of fictionality if a literary work is identifiable as a novel and obviously does not purport (even if it does use real-life people as model) to be factual, i.e. if it is not simply a report which was falsely labelled a novel. Even if the novel “does not just have an effect on aesthetic reality but also on real-life facts”, one cannot – according to the majority –simply use the possible effects on real-life facts as a basis; instead a solution must be found through a weighing. In this context, the presumption of fictionality does not just relate to the persons portrayed, but also to the events described, character traits and similar things.

d) However, the significance of the work being categorised as fictional is partially revoked by the majority of the Senate in a fourth examination step (C II 3 c). If the severity of the violation of the right of personality is high – in the case at hand the descriptions of the intimate and sexual spheres as well as the illness of the child fell into this category (C II 4 b) – the presumption of fictionality no longer applies. Instead there is a requirement: the more the affected dimension of the right of personality is protected, the greater the need to make efforts to fictionalise the model. Nonetheless, the description of the sex life of a person recognisable through facts that “were more or less directly derived from reality” as being the model should always be impermissible because that person does not have to put up with “readers asking themselves the question suggested by the novel, namely whether the events reported in the novel have also occurred in reality”. Thus for content of this kind there is practically no presumption of fictionality, but rather a basic ban if it is not sufficiently certain that what is being considered is fictional. Nor are the efforts to fictionalise the work (the majority also talk about “alteration” of the work) – in relation to the person or the events described – adequate, as is shown by the subsequent reasoning of the majority, in the event that there is a “realistic and detailed account of events originating from the immediate experiences of the author”, in particular descriptions of some of the most intimate details of the woman who is clearly recognisable as having really been an intimate partner of the author.

2. I certainly do not have any doubt that the right of personality is violated if someone realistically presents the most intimate details of their partner’s sexual behaviour to others or even the public – whether or not it is based on direct experience. However, in the present case it is doubtful and the author denies that he wanted to describe past sexual activities or that he even prepared a report about them. In my opinion the majority does not pay sufficient attention to this and instead simply upholds the factual findings of the non-constitutional courts, which for their part did not proceed, however, from a presumption of fictionality.

a) If Article 5.3 of the Basic Law requires a presumption of fictionality for the novel as an art form even where a specific model is recognisable and requires that this fictionality be applied to the specific events, behaviour or character traits described, it is not understandable why this should not also cover descriptions of the sexual sphere. If, however, this presumption is ultimately disregarded here, this means that the standards specific to art are abandoned to this degree. To put it differently: Descriptions of sexuality are only protected as art if their fictionality is greater than in other cases – without there being a presumption that it is. In this connection, the Senate applies the “the more …, the greater …” formula in headnote 4 (The more the artistic depiction touches on the aspects of the right of personality that are afforded special protection, the greater the fictionalisation must be in order to rule out violations of the right of personality). Where this “the more…, the greater …” formula applies, it is difficult to lift events reminiscent of real-life events to “a second level” through artistic transformation and to thus be able to enjoy the protection of artistic freedom. An author, like the one in the present case, who knows the person concerned from his own sexual experience with her, has according to the conditions laid down by the majority practically no means of fictionalising the description of sexuality in such a way that it can receive constitutional protection.

On the other hand, if the presumption of fictionality that is substantiated by invoking the necessity for the application of standards specific to art were also applied here, the fact that sexual intercourse is described in detail and realistically would not automatically amount to a rebuttal of the presumption since it can also be described in detail and realistically in a fictional account. The fact that an author, who also in the opinion of the majority is entitled to use a specific person as the model for a novel character, writes about the behaviour or characteristics of the person from his or her own experience is not of itself an indication, even if the person is recognisable as his or her intimate partner, that he or she is claiming that what is actually described is a report about sexual practices that they engaged in; nor is there even a presumption that that is the case. Nonetheless, according to the majority’s findings it assumes that there is an irrebuttable presumption of “real-life existence” if a recognisable person with whom the author has had intimate relations is linked with intimate scenes in a novel. How he or she could eliminate the possibility of a violation of the right of personality by “fictionalising the model” is a complete mystery. If the model is recognisable, the only possibility would be to fictionalise the events described. The court would also have to review this if necessary. In view of the evidentiary difficulties in relation to events in the intimate sphere, this appears hardly possible. At all events, one solution would be to allow at any rate a presumption of fictionality. The Senate does not, however, do so in the present case.

In contrast to their approach in the case of Esra, the majority applies the presumption of fictionality with regard to the description of Lale and rejects the objection of the Federal Court of Justice that the complainant failed to provide any proof of the truth; it does this with the statement that to expect proof from the artist would be to expect something from him that he could not produce on the basis of his own understanding of himself since he himself regarded the depiction as fictional.

b) Why this should be true in one case but not the other is not understandable. The fact that the author recounts the stories, rumours and impressions of other people impersonally in the case of Lale, but describes Esra from his own experience cannot be decisive – even if the majority view were to be followed. The possibility that this difference might be owed to the application of “standards specific to art” is rather unlikely. Since the majority makes the availability of protection based on artistic freedom dependent on this determination, this difference could at most be justified in connection with the weighing of the seriousness of the violation of the right of personality. However, according to the Senate’s other case law on conflicts between the protection of personality and freedom of opinion, a violation of the right of personality is not usually made dependent on the question of whether the violation stems from something the author experienced or is the result of something said by others.

c) Obviously what should be decisive is which part of the right of personality has been adversely affected. The fact that the assertions made about Lale – among others, that she was a depressed, psychologically ill alcoholic, who neglected her children, tyrannised her family, and had been beaten by her husband – less seriously affect the right of personality than the description of sexual practices is not at all events so apparent that the distinction would justify allowing the guarantee of artistic freedom to take effect in the form of a presumption of fictionality in one case but not in the other.

3. The difficulties experienced by the majority in outlining the standards specific to art and applying them so that they acquire a place within in a coherent jurisprudential order seem to me to be the result of what the majority understand to be a description of reality (real-life facts) and what they understand as conversion to art. In doing so they appear to assume that there is a distinction or even a conflict between empirics and artistic fiction. At the same time, the attempt to overcome the dilemmas arising from difficulties experienced in weighing by resorting to a presumption of fictionality may help in many cases to achieve acceptable results; however, as can be seen from the present situation, it does not always work, in particular, where the artist does not describe a product of his or her imagination, but instead artistically treats events which can be observed intersubjectively.

a) Following on from the statements of Judge Stein, who was one of the minority judges in the Mephisto case, the majority hold that artistic depictions can be measured according to the standards of the “real world”, which are fundamentally different from the “aesthetic standards specific to art” that artists use to view reality. This statement may be based on the circumstance, which is more closely analysed primarily in constructivism (with differences in its individual variations), that the observable world (environment) only derives its reality from its perception by the observer, i.e. through his or her processing of what has been observed, which he or she undertakes on the basis of among other things his or her own insights and experiences, previous observations and cultural values. In doing this, as in translating what has been observed into language, social conventions come to his or her aid which make the images of reality communicable. Empirical knowledge is in this respect knowledge about experience of the world. Conventions in the everyday world just like specific professional conventions – as for example the rules recognised in the legal system about what are facts and how they must be determined by the court and will then “apply” – allow intersubjective understanding of mutually compatible “reality constructions”, in short of “reality”.

When Judge Stein, with the approval of the majority, speaks of a work of art seeking to create a “more real” reality, namely one “in which actual reality is more clearly experienced on an aesthetic level in a new relationship to the individual” (BVerfGE 30, 200 (204)), he is referring to the fact that the constructions of reality applicable to the respective artists usually follow other conventions (for example, those described as “aesthetic”) than those of citizens communicating in the everyday world and that artists with their own values, experiences, perspectives or selectiveness observe and describe what they have observed and seek to make it communicable in the form of a work of art.

If Article 5.3 of the Basic Law gives special protection to artistic freedom, then this means there is protection of the freedom to use a construction of reality “specific to art”. There are, however, to this extent no generally applicable rules or convention as to what is art or specific to art. Art keeps discovering new kinds of constructions of reality, challenges the standard of the aesthetic time and time again and determines what it should be in various ways. Many works of art are aimed at crossing recognised borders and artists are involved in tearing down fences and mixing categories that have been handed down with newly developed ones.

b) If there is a necessity (as is also accepted in principle by the majority) for applying standards specific to the kind of reality constructions by artists in works of art, this can affect various phenomena which are important for lawyers. Thus occurrences which anyone, i.e. also the “everyday observer”, can observe and discuss intersubjectively with other everyday observers will be observed and described completely differently by an artist in his or her field of reference. The majority is obviously referring to these kinds of observation and description when it says in relation to Lale that the description possesses “a second level” beyond the “realistic level” – the description of the behaviour of real-life people at real-life locations.

This must be distinguished by degree (not principally) from an artistic depiction which does not seek at all to describe events that can also be observed by other persons or does not seek at all to depict them in a manner specific to art according to aesthetic principles, but instead separates them – so to speak as a product of the artist’s imagination – from things specifically observed, even if in treating and describing them the artist has recourse to insights and experiences from previous observations and creates the impression that what is described could also be applied to an event that could also have been observed by others. At all events, it is this second type which is meant when fictionality is discussed. What is described remains fictional in character even if the author receives confirmation that he or she has hit upon the “truth” with his or her fictional product. Generally what is meant is that he or she has captured something typical or generally valid.

However, it is undisputed that artistic freedom extends not only to presentations which are the “products of a person’s imagination”, but also to artistic treatment of real-life events which can be observed and communicated intersubjectively. Furthermore it also extends to intermediate forms, i.e. combinations and mixtures of artistic treatments of circumstances that can be observed intersubjectively with “products of the imagination”.

c) It is easy to lose sight of this diversity in artistic creativity and the necessity for developing protective aspects that take it into account if the protection of what is artistic is ultimately limited to what is fictional and a work of art is evaluated using an either/or presumption of fiction or empiricism (real-life facts). If this happens there is a risk that the independence [of the artist] in the use of [his or her] observations – the artistic construction of reality – will be lost. Nor can this risk be avoided by making the degree and scope of protection of artistic freedom – as the majority would like done – dependent on the degree of fictionality. Operationalisation with reference to the fact that the fictional outweighs the factual may be useful as a legal aid for distinguishing what can be observed intersubjectively from what are “products of a person’s imagination”, but it is not suitable for taking into account the special way of artistically treating an event which can be observed intersubjectively. The artistic treatment of such events in a novel – in the language of the majority by developing a “second level” – does not turn them into fiction but does however turn them into a work of art. Then to this extent there must also be a presumption in favour of the artistic. Speaking of a presumption of “fictionality” is likely to obscure this aspect of the need for protection unless it is broadly understood as also encompassing the artistic treatment of an event that can be observed intersubjectively. Then, however, one cannot expect the artist to "fictionalise” the event if this is supposed to mean that he or she should change facts that he or she has treated artistically or make them unrecognisable, or that he or she should “mislead” people or do other similar things. What the majority understand by the term “fictionalisation” is at all events not so clear that it could be used as a practical guide for authors. The majority believe that “they could reduce the identifiability” – obviously it remains however – and remove the parts of the novel that violate rights of personality: But when can an “aesthetic reality” (understood as a construction of reality specific to art) possibly violate rights of personality?

d) If in spite of these objections the protection of artistic freedom is made dependent on the degree of fictionality, there would at all events have to be related evidentiary principles or principles for rebutting the presumption. The majority recognises the unsuitability of the legal evidentiary principles to the extent that it holds in the case of the depiction of Lale that the author has allowed distinctions to become blurred and played with the overlap between truth (obviously meant in the sense of an event that can be observed intersubjectively) and fiction (obviously meant as additions from the author’s imagination); the majority also recognises the unsuitability of the legal evidentiary principles in finding that if the author did not set out to write a report, he could not reasonably be expected to prove something which he regarded as fictional. It may be added: Something that claims to be fictional cannot also violate the rights of personality of others.

Categorisation is more difficult where the artist selects as the starting point for his or her description events that can also be observed by others, but then due to his or her special way of looking at things as an artist and/or due to his or her adding events or character traits plucked from his or her imagination – but which are also depicted like observable events – does not make it possible to distinguish in detail to what extent he or she is describing what can be observed and to what extent he or she is making artistic “additions” through his or her way of making observations and descriptions or even through adding things he has dreamed up.

The majority of the Senate did not make any attempt in relation to the depiction of Esra to make these kinds of distinctions. Instead they conclude from circumstantial evidence (such as accounts of the first-person narrator’s own experience, realistic and detailed narrative) that the author was describing events that could in principle also be observed by others and was suggesting in this context to readers that he was describing events that had really happened. His statements to the contrary during the proceedings were accorded just as little value as the various opinions published by literary experts on the disputed text in this case – i.e. analyses specific to art. Thus it is difficult to avoid the impression that it is the subject-matter – in particular the description of sexual details – that excludes the application of an analysis specific to art in weighing made in the case of a description of this kind in a novel. In a false conclusion the possibility that the author may have also “constructed” an aesthetic reality specific to art in the case of this literary topic is rejected.

He is not given the benefit of the presumption of fictionality. This would, however, have to be understood in a broader sense in order to be able to extend it to the situation relevant here. If it were to be applied, it would be necessary to ask (provided there were individual parallels between the events and what can be observed intersubjectively) whether the artistic treatment of these events had lifted them to the “second level” that was emphasised by the majority as being decisive so that the artist could be said to have constructed a “new reality” following its own aesthetic rules. Expert advice is needed to clarify this so that it would in principle be necessary to obtain the assistance of literary experts.

An author can help to make it clear that the reader should not assume that the story is fact (intersubjectively provable) (C II 3 a) by including an appropriate disclaimer in his or her book. A disclaimer will have its own significance if it is in keeping with the content of the novel, i.e. if it does not appear to be false. However, if the disclaimer turns out to be false, then the author will be considered to have revoked his or her claim to treat a topic artistically which he or she asserted by choosing to express himself or herself in the form of a novel and will not have the benefit of the protection of artistic freedom. In this context, it is unfortunate that the majority use the term “denigrate” (Schmähung) to express the opposite of a work of art. At all events the term “denigration” (Schmähkritik) in connection with the principles governing Article 5.1 of the Basic Law is a technical term which is related and restricted to the legal categorisation of value judgments and covers cases where an evaluation has no basis whatsoever even from the point of view of the critic and is aimed at personal defamation. However, if as is here the case, the issue is whether the account can be categorised as an intersubjectively understandable description of events that have really happened or as fiction or as a construction of reality specific to art, then such categories are not suitable or at all events only as rough indications.