Germany – Privacy
Privacy law
Privacy law in Germany is designed to protect a person's personality rights.
Private information
The law and procedure for complaints about the publication and broadcast of private information is the same as for false and defamatory statements (see below). In a privacy claim, the publisher/broadcaster can defend the case, not on the grounds of truth, but on the grounds that the disclosure of the private material was in the public interest.
The type of claimant
German law provides an exception for socalled public figures of relative and absolute current interest. Public figures of absolute current interest are those who are known because of their prominent position in public life, independent from any specific context (e.g. politicians and actors). Public figures of relative current interest are those who are not abstractly recognized by the public but have achieved a certain degree of recognition in connection with a specific event (e.g. the winner of a competition in a specific sports discipline). Public figures of relative current interest may generally be depicted in connection with reports about the event which has made them known (e.g. the winner of a competition shown on the winner's rostrum). Public figures of absolute current interest in contrast may be depicted independently from any specific event. However, this excludes very private areas of their life; for example, nude pictures of them may not be published without the person's consent. The more a person seeks publicity about a particular area of their life, the less privacy protection that person will have in that area
Photographs
As a rule, publications of photographs always require the consent of the individuals depicted. However, the subject's interest in keeping his or her private life confidential must be weighed against the need of the public to be informed. German courts have developed a detailed, balanced practice in this respect, according to which, for example, pictures taken in a secluded location or showing children and their parents is not permitted. In contrast, pictures from the "ordinary" private life of celebrities (e.g. shopping or doing sports) had usually been permitted. In 2004, however, the European Court of Human Rights ruled in the Princess Caroline case that the German public figure defence was too wide. It held that German courts should decide if the claimant has been depicted in public in connection with the activity that has made them famous. Furthermore, the disclosure of photographs of someone's private life can only be justified if the photographs contribute to a matter of public debate. Thus, photographs depicting the private life of ordinary people will almost always require consent and similar photographs of celebrities will often require consent. If the photographs are of a politician, then it seems more likely that the publisher/broadcaster can justify the publication of the photographs.
Procedure and remedies
Interim injunctions
The first step in a press complaint is usually when the claimant writes to the publisher/broadcaster and demands (a) an undertaking not to repeat the allegation and (b) a right of reply (i.e. the publication or broadcast of a reasonably prominent counterstatement setting out the claimant's version of events). If these demands are not met, the claimant may apply to court (the Landgericht) for an interim injunction and a right of reply. The case will be heard by three judges but a single judgment will be given. If the claimant dispenses with the first step of sending a warning letter, he bears the risk of having to pay the costs of the proceeding if the publisher immediately accepts the interim injunction issued by the court. Sometimes the claimant will not send a cease and desist letter. This is because he or she does not wish to put the publisher on notice of the application for an interim injunction. There are two main reasons for this approach: first, the publisher does not have an opportunity to give submissions to the court before the interim injunction is granted; second, if the court does not grant the interim injunction, the defendant will not find out that the application had even been made. So if the case is not clear-cut, the claimant may prefer not to send a cease and desist letter prior to applying for an interim injunction. Depending on the court, the application for an injunction normally has to be filed in court within 1-3 months of the alleged infringement. If the complaint relates to a defamatory statement or an invasion of his privacy, the application must state this. If the complaint concerns the truth of the facts stated in the article or broadcast, then the claimant must also file an affidavit from a person who has relevant knowledge of the facts showing that they are false. Provided that the court believes the claimant on the balance of probabilities, it will grant the injunction (often without the publisher having had the opportunity to comment). No reasons are given by the court at this stage. If the interim injunction is granted, the claimant must officially serve the court order on the defendant within one month. If this is not done, the order will be invalid. The publisher can file an opposition against the interim injunction, in which case the court will schedule an inter partes hearing to discuss the facts of the case and either set aside the interim injunction or confirm it with a reasoned judgment. This judgment sometimes takes up to a week to be delivered. It can be appealed to a court of second instance (the Oberlandesgericht). To appeal, a party has one month from when the judgment is served to file the appeal to the Oberlandesgericht and two months from the service of the judgment to provide written reasons why the judgment was wrong. After the interim injunction has been upheld by the court, the claimant will invite the publisher to acknowledge the injunction as a final and binding decision. If the publisher refuses, the dispute has to be fought in a normal court action, the socalled proceeding on the merits, so as to obtain a final decision. However, in most cases in Germany, media complaints are dealt with at the interim injunction stage. It is not a necessity to start a normal action after the interim injunction stage. Interim injunctions are to prevent a publisher or broadcaster from repeating the allegations. Such injunctions are not usually significant obstacles to the business of a news organisation as the newspaper will already have been published or the news programme will already have been broadcast. However, an interim injunction could have serious consequences for book and magazine publishers since the book/magazine may have to be pulled from the shelves. Having said that, the vast majority of interim injunctions in Germany concern newspaper reports or broadcasts. It is important to understand that at the interim injunction stage, no damages can be awarded. However, breach of an interim injunction can lead to a fine of up to about $300,000 but, in most cases, fines would be less than $12,000.
Normal action
If the claimant requires an order for a correction (as opposed to a right of reply) to be published and/or monetary compensation, he must start a normal action as these remedies cannot be obtained by way of interim injunction proceedings. Normal actions are usually started in the place where claimant lives. However, in media cases, claimants often choose to bring their disputes (including interim injunction applications) in the Landgericht of Hamburg, Munich or Berlin as these courts are more experienced in this field. The first step in an ordinary action is when the claimant sets out in writing what his complaint is, a list of his or her witnesses and the documents on which he or she will rely. The defendant must then file a similar document setting out its defence and documents relied on.
It can take about 4-9 months from start of the claim to the trial. It is rare that court hearings last more than one or two hours. In most cases, the hearing takes about 30 minutes. Sometimes, there will be a second hearing for witness cross-examination. Although the claimant and witnesses can be cross-examined, the judges and lawyers put a lot of emphasis on the written documents in the case. In fact, in most cases the court has usually made up its mind before the hearing and listens to the advocates and witnesses to confirm its view of the case. There will be three judges hearing the case. The court will give a written judgement within about two months of the trial. This can be appealed to a higher court, the Oberlandesgericht (also comprising three judges).
Trial remedies
If the claimant is successful at trial, he will generally be granted a final injunction preventing the allegations being repeated. The claimant also usually asks for a correction or at least a right of reply (see above). Damages are only awarded in German media cases in exceptional circumstances. The maximum awarded was $92,000 in 2004. This was for a privacy complaint by Princess Caroline's youngest daughter relating to publications in 1999 and 2000. The judgment is under appeal to the constitutional court.
Costs (lawyers' fees)
There are two aspects of costs which need to be considered. First, lawyers will agree the amount of costs they will charge their own client. In many cases, costs are assessed by hourly rates. The costs of a publisher or broadcaster in a contested interim injunction hearing could be about $4,000 or so. The costs of defending a media case to trial (including an interim injunction hearing) on behalf of a publisher or broadcaster can often be in the region of $18,000-$55,000 and sometimes more. Conditional fee agreements and contingency fees are not allowed. The second aspect concerns costs orders as a result of litigation as between parties. The costs regime in Germany is go
เยอรมนี – ความเป็นส่วนตัว กฎหมายความเป็นส่วนตัว กฎหมายความเป็นส่วนตัวในเยอรมนีถูกออกแบบมาเพื่อปกป้องสิทธิในบุคลิกภาพของบุคคลข้อมูลส่วนตัว กฎหมายและขั้นตอนการร้องเรียนเกี่ยวกับการเผยแพร่และถ่ายทอดข้อมูลส่วนตัวเป็นเหมือนกับคำเท็จ และรังเกียจ (ดูด้านล่าง) ในการเรียกร้องความเป็นส่วนตัว ผู้เผยแพร่/อากาศสามารถปกป้องกรณี ไม่ ไร้ความจริง แต่ ในบริเวณที่เปิดเผยของวัสดุส่วนตัวในสาธารณประโยชน์ชนิดของผู้อ้าง German law provides an exception for socalled public figures of relative and absolute current interest. Public figures of absolute current interest are those who are known because of their prominent position in public life, independent from any specific context (e.g. politicians and actors). Public figures of relative current interest are those who are not abstractly recognized by the public but have achieved a certain degree of recognition in connection with a specific event (e.g. the winner of a competition in a specific sports discipline). Public figures of relative current interest may generally be depicted in connection with reports about the event which has made them known (e.g. the winner of a competition shown on the winner's rostrum). Public figures of absolute current interest in contrast may be depicted independently from any specific event. However, this excludes very private areas of their life; for example, nude pictures of them may not be published without the person's consent. The more a person seeks publicity about a particular area of their life, the less privacy protection that person will have in that areaPhotographs As a rule, publications of photographs always require the consent of the individuals depicted. However, the subject's interest in keeping his or her private life confidential must be weighed against the need of the public to be informed. German courts have developed a detailed, balanced practice in this respect, according to which, for example, pictures taken in a secluded location or showing children and their parents is not permitted. In contrast, pictures from the "ordinary" private life of celebrities (e.g. shopping or doing sports) had usually been permitted. In 2004, however, the European Court of Human Rights ruled in the Princess Caroline case that the German public figure defence was too wide. It held that German courts should decide if the claimant has been depicted in public in connection with the activity that has made them famous. Furthermore, the disclosure of photographs of someone's private life can only be justified if the photographs contribute to a matter of public debate. Thus, photographs depicting the private life of ordinary people will almost always require consent and similar photographs of celebrities will often require consent. If the photographs are of a politician, then it seems more likely that the publisher/broadcaster can justify the publication of the photographs.Procedure and remedies Interim injunctions The first step in a press complaint is usually when the claimant writes to the publisher/broadcaster and demands (a) an undertaking not to repeat the allegation and (b) a right of reply (i.e. the publication or broadcast of a reasonably prominent counterstatement setting out the claimant's version of events). If these demands are not met, the claimant may apply to court (the Landgericht) for an interim injunction and a right of reply. The case will be heard by three judges but a single judgment will be given. If the claimant dispenses with the first step of sending a warning letter, he bears the risk of having to pay the costs of the proceeding if the publisher immediately accepts the interim injunction issued by the court. Sometimes the claimant will not send a cease and desist letter. This is because he or she does not wish to put the publisher on notice of the application for an interim injunction. There are two main reasons for this approach: first, the publisher does not have an opportunity to give submissions to the court before the interim injunction is granted; second, if the court does not grant the interim injunction, the defendant will not find out that the application had even been made. So if the case is not clear-cut, the claimant may prefer not to send a cease and desist letter prior to applying for an interim injunction. Depending on the court, the application for an injunction normally has to be filed in court within 1-3 months of the alleged infringement. If the complaint relates to a defamatory statement or an invasion of his privacy, the application must state this. If the complaint concerns the truth of the facts stated in the article or broadcast, then the claimant must also file an affidavit from a person who has relevant knowledge of the facts showing that they are false. Provided that the court believes the claimant on the balance of probabilities, it will grant the injunction (often without the publisher having had the opportunity to comment). No reasons are given by the court at this stage. If the interim injunction is granted, the claimant must officially serve the court order on the defendant within one month. If this is not done, the order will be invalid. The publisher can file an opposition against the interim injunction, in which case the court will schedule an inter partes hearing to discuss the facts of the case and either set aside the interim injunction or confirm it with a reasoned judgment. This judgment sometimes takes up to a week to be delivered. It can be appealed to a court of second instance (the Oberlandesgericht). To appeal, a party has one month from when the judgment is served to file the appeal to the Oberlandesgericht and two months from the service of the judgment to provide written reasons why the judgment was wrong. After the interim injunction has been upheld by the court, the claimant will invite the publisher to acknowledge the injunction as a final and binding decision. If the publisher refuses, the dispute has to be fought in a normal court action, the socalled proceeding on the merits, so as to obtain a final decision. However, in most cases in Germany, media complaints are dealt with at the interim injunction stage. It is not a necessity to start a normal action after the interim injunction stage. Interim injunctions are to prevent a publisher or broadcaster from repeating the allegations. Such injunctions are not usually significant obstacles to the business of a news organisation as the newspaper will already have been published or the news programme will already have been broadcast. However, an interim injunction could have serious consequences for book and magazine publishers since the book/magazine may have to be pulled from the shelves. Having said that, the vast majority of interim injunctions in Germany concern newspaper reports or broadcasts. It is important to understand that at the interim injunction stage, no damages can be awarded. However, breach of an interim injunction can lead to a fine of up to about $300,000 but, in most cases, fines would be less than $12,000.Normal action If the claimant requires an order for a correction (as opposed to a right of reply) to be published and/or monetary compensation, he must start a normal action as these remedies cannot be obtained by way of interim injunction proceedings. Normal actions are usually started in the place where claimant lives. However, in media cases, claimants often choose to bring their disputes (including interim injunction applications) in the Landgericht of Hamburg, Munich or Berlin as these courts are more experienced in this field. The first step in an ordinary action is when the claimant sets out in writing what his complaint is, a list of his or her witnesses and the documents on which he or she will rely. The defendant must then file a similar document setting out its defence and documents relied on.It can take about 4-9 months from start of the claim to the trial. It is rare that court hearings last more than one or two hours. In most cases, the hearing takes about 30 minutes. Sometimes, there will be a second hearing for witness cross-examination. Although the claimant and witnesses can be cross-examined, the judges and lawyers put a lot of emphasis on the written documents in the case. In fact, in most cases the court has usually made up its mind before the hearing and listens to the advocates and witnesses to confirm its view of the case. There will be three judges hearing the case. The court will give a written judgement within about two months of the trial. This can be appealed to a higher court, the Oberlandesgericht (also comprising three judges).Trial remedies If the claimant is successful at trial, he will generally be granted a final injunction preventing the allegations being repeated. The claimant also usually asks for a correction or at least a right of reply (see above). Damages are only awarded in German media cases in exceptional circumstances. The maximum awarded was $92,000 in 2004. This was for a privacy complaint by Princess Caroline's youngest daughter relating to publications in 1999 and 2000. The judgment is under appeal to the constitutional court.Costs (lawyers' fees) There are two aspects of costs which need to be considered. First, lawyers will agree the amount of costs they will charge their own client. In many cases, costs are assessed by hourly rates. The costs of a publisher or broadcaster in a contested interim injunction hearing could be about $4,000 or so. The costs of defending a media case to trial (including an interim injunction hearing) on behalf of a publisher or broadcaster can often be in the region of $18,000-$55,000 and sometimes more. Conditional fee agreements and contingency fees are not allowed. The second aspect concerns costs orders as a result of litigation as between parties. The costs regime in Germany is go
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