What is the general right of personality in German law?
The general right of personality (German: allgemeines Persönlichkeitsrecht, or APR) is a fundamental right that protects the dignity and autonomy of every individual in Germany. It is not explicitly mentioned in the German Basic Law (Grundgesetz), but it is derived from the combination of Article 2 (1) and Article 1 (1), which guarantee the free development of one's personality and the inviolability of human dignity. The APR covers various aspects of personal life, such as identity, privacy, communication, reputation, and posthumous reputation. It also imposes obligations on both state authorities and private parties to respect and protect the personality rights of others.
Definition and origin
The APR is an absolute, independent, and comprehensive right to respect and development of one's personality. It was developed by the Federal Constitutional Court (Bundesverfassungsgericht) in 1954 in its famous Mephisto decision, and has since been further elaborated by jurisprudence. The APR is intended to fill the gaps and complement the other fundamental rights that are explicitly listed in the Basic Law.
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Legal basis
The legal basis for the APR is Article 2 (1) in conjunction with Article 1 (1) of the Basic Law. Article 2 (1) states that everyone has the right to the free development of his personality, as long as he does not violate the rights of others or the constitutional order or the moral law. Article 1 (1) states that human dignity is inviolable and that it is the duty of all state authority to respect and protect it.
Constitutional Court ruling
The Constitutional Court derived the APR from Article 2 (1) in conjunction with Article 1 (1) in its Mephisto decision, which concerned a novel based on the life of a deceased actor. The Court held that the novel violated the actor's posthumous right of personality, which was part of his human dignity. The Court also recognized that the APR has a multifaceted scope that encompasses different modes of expression and development of one's personality.
Purpose and function
The purpose and function of the APR is to protect individuals from comprehensive interference with their personal sphere by the state or by other private parties. The APR aims to safeguard the individual's identity, privacy, communication, reputation, and posthumous reputation. The APR also enables individuals to determine for themselves who they are, how they want to be seen by others, and what information they want to disclose or keep confidential.
Scope of protection
Personal scope
Material scope
The material scope of the APR covers various aspects of one's personality that can be classified into four main categories: the right of self-determination, the right of self-preservation, the right of self-presentation, and the right of informational self-determination. Each category has different subcategories that correspond to specific situations and interests.
Right of self-determination
The right of self-determination (German: Selbstbestimmungsrecht) is the core element of the APR. It grants individuals the freedom to decide for themselves how they want to live their lives, as long as they do not violate the rights of others or the constitutional order or the moral law. The right of self-determination includes, for example, the right to choose one's name, gender, religion, profession, education, marriage, family, and political affiliation.
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Right of self-preservation
The right of self-preservation (German: Selbstbehauptungsrecht) is the defensive aspect of the APR. It protects individuals from physical or mental harm, coercion, or manipulation by others. The right of self-preservation includes, for example, the right to life, bodily integrity, health, personal security, and personal liberty.
Right of self-presentation
The right of self-presentation (German: Selbstbildungsrecht) is the expressive aspect of the APR. It allows individuals to shape and communicate their personality to others in various forms and contexts. The right of self-presentation includes, for example, the right to one's own image, word, name, voice, signature, artistic work, and intellectual property.
Right of informational self-determination
The right of informational self-determination (German: informationelle Selbstbestimmung) is the informational aspect of the APR. It empowers individuals to control the collection, processing, and dissemination of their personal data by others. The right of informational self-determination includes, for example, the right to privacy, confidentiality, data protection, and access to information.
Right of personal honor
The right of personal honor (German: Ehrenschutz) is a special subcategory of the right of self-presentation. It protects individuals from defamation, insult, slander, libel, or any other form of verbal or non-verbal attack on their reputation or dignity. The right of personal honor includes, for example, the right to respect, recognition, esteem, and reputation.
Posthumous right of personality
The posthumous right of personality (German: postmortales Persönlichkeitsrecht) is a special subcategory of the APR that applies to deceased persons. It protects their memory and legacy from distortion or exploitation by others. The posthumous right of personality includes, for example, the right to respect for one's death and burial, protection from unauthorized publication or use of one's works or data, and preservation of one's historical or cultural significance.
Interference with the general right of personality
The general right of personality can be interfered with by state authorities or by private parties. An interference occurs when an act or omission affects or threatens to affect one or more aspects of one's personality in a negative way. The interference can be direct or indirect, intentional or unintentional.
By state authorities
State authorities can interfere with the general right of personality when they exercise their public powers, such as law enforcement, taxation, regulation, or administration. For example, state authorities can interfere with the general right of personality by conducting searches, seizures, surveillance, or data collection on individuals or their property.
By private parties
Private parties are also obliged to respect and protect the general right of personality of others. However, private parties can interfere with the general right of personality when they act in their private interests, such as business, media, or personal relations. For example, private parties can interfere with the general right of personality by publishing false or defamatory statements, invading privacy, infringing intellectual property, or exploiting personal data.
Illegality of the interference
An interference with the general right of personality is not always illegal. It depends on whether the interference can be justified by a legitimate reason or a competing right. The illegality of the interference is determined by applying a proportionality test that balances the interests and rights of both parties.
Constitutional justification
An interference with the general right of personality by state authorities can be justified if it is based on a constitutional provision that explicitly or implicitly authorizes it. For example, Article 10 (1) of the Basic Law allows for restrictions on the privacy of correspondence, posts and telecommunications in certain cases. However, the constitutional justification must also comply with the principle of proportionality, which means that the interference must be suitable, necessary and reasonable to achieve a legitimate public interest.
Limitation of limitations
An interference with the general right of personality by private parties can be justified if it is based on a limitation of limitations (German: Schranken-Schranke). This means that the interference must respect the core content and essence of the general right of personality, which cannot be infringed under any circumstances. Moreover, the interference must also comply with the principle of proportionality, which means that the interference must be suitable, necessary and reasonable to achieve a legitimate private interest.
Violation of the general right of personality - compensation
If an interference with the general right of personality is illegal, it constitutes a violation of the general right of personality (German: Verletzung des allgemeinen Persönlichkeitsrechts). The person whose general right of personality has been violated can seek compensation from the person who caused the violation. The compensation can include monetary damages, injunctive relief, declaratory relief, or restitution.
Conclusion
The general right of personality is a fundamental right that protects the dignity and autonomy of every individual in Germany. It is derived from Article 2 (1) in conjunction with Article 1 (1) of the Basic Law and covers various aspects of personal life. The general right of personality can be interfered with by state authorities or by private parties, but only if the interference can be justified by a legitimate reason or a competing right. Otherwise, the interference is illegal and constitutes a violation of the general right of personality. The person whose general right of personality has been violated can seek compensation from the person who caused the violation.
FAQs
Here are some frequently asked questions about the general right of personality in German law:
What is the difference between the general right of personality and the right to privacy?
The general right of personality is a broader concept than the right to privacy. The right to privacy is one aspect of the general right of personality that protects individuals from unwanted intrusion or disclosure of their personal information. The general right of personality also covers other aspects, such as identity, communication, reputation, and posthumous reputation.
How does the general right of personality relate to other fundamental rights?
The general right of personality is derived from Article 2 (1) in conjunction with Article 1 (1) of the Basic Law, which are the basis for all other fundamental rights. The general right of personality can complement, support, or limit other fundamental rights, depending on the context and the situation. For example, the general right of personality can support the freedom of expression, but it can also limit it if it infringes on the personal honor of others.
Who can enforce the general right of personality?
The general right of personality can be enforced by individuals who have been affected or threatened by an interference with their general right of personality. They can file a complaint with the Constitutional Court or a civil court, depending on the nature and source of the interference. They can also seek assistance from other institutions, such as data protection authorities, press councils, or professional associations.
What are some examples of violations of the general right of personality?
Some examples of violations of the general right of personality are: unauthorized use or publication of one's image, name, voice, or work; false or defamatory statements about one's character, conduct, or achievements; invasion or disclosure of one's private or confidential information; coercion or manipulation of one's decisions or actions; physical or mental harm to one's body or health; distortion or exploitation of one's memory or legacy.
What are some challenges or limitations of the general right of personality?
Some challenges or limitations of the general right of personality are: defining and measuring its scope and content; balancing it with other competing rights and interests; adapting it to new technologies and social changes; enforcing it across borders and jurisdictions; preventing its abuse or misuse. 44f88ac181
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