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JUDGMENT (Extracts) FIFTH SECTION CASE OF ERNST AUGUST VON HANNOVER v. GERMANY (Application no. 53649/09) JUDGMENT (Extracts) STRASBOURG 19 February 2015 FINAL 19/05/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. ERNST AUGUST VON HANNOVER v. GERMANY JUDGMENT 1 In the case of Ernst August von Hannover v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, André Potocki, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 20 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 53649/09) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Ernst August von Hannover (“the applicant”), on 5 October 2009. 2. The applicant was represented by Mr M. Prinz, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by their Agent, Ms K. Behr, of the Federal Ministry of Justice. 3. The applicant alleged, in particular, that the refusal by the Federal Court of Justice to grant him a notional licence in compensation for the unlawful use of his forename in an advertisement had infringed his right to respect for his private life within the meaning of Article 8 of the Convention. 4. On 15 December 2011 the application was communicated to the Government. 5. The company British American Tobacco (Germany) GmbH was granted leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1954 and lives in Monaco. 2 ERNST AUGUST VON HANNOVER v. GERMANY JUDGMENT A. Background to the case 7. In 1998 the applicant was involved in an altercation with a cameraman outside his property, “Gut Calenberg”, during which he struck the cameraman with an umbrella. In January 2000 the press reported on another scuffle between the applicant and the manager of a discotheque on Lamu Island off the Kenyan coast, as a result of which the applicant was convicted of assault. 8. On 27 March 2000 the company British American Tobacco (Germany) GmbH (“the company”) launched a ten-day advertising campaign with full-page advertisements in magazines and on posters at bus stops and other busy locations showing, on the lower half, a crumpled packet of Lucky Strike cigarettes lying on its side. The top half read, in large lettering: “Was it Ernst? Or August?” At the bottom of the advertisement was the phrase “Lucky Strike. Nothing else.” (“Lucky Strike. Sonst nichts.”) The campaign covered eighteen towns and cities and 6,364 billboards, which meant that it had a potential reach of approximately 2.97 million people. It was also reported in the media. 9. The applicant asked the company that had commissioned the advertisement and the advertising agency that had designed it to discontinue the campaign. The agency agreed to do so in writing, but the company refused. The applicant then made an urgent application to the Hamburg Regional Court. 10. On 31 March 2000 the Regional Court granted an interim injunction against any further distribution of the advertisement at issue, and confirmed the injunction on 14 April 2000. The company subsequently announced that it was discontinuing the advertisement, but refused to reimburse the costs incurred by the applicant for the official notice served on it. 11. On 8 March 2001 the applicant asked the company to pay him damages of 250,000 euros (EUR). The company did not respond to that request. B. Decisions of the German courts 1. Judgment of the Regional Court 12. On 23 December 2003 the applicant applied to the Hamburg Regional Court for an order requiring the company and the advertising agency that had designed the advertisement to pay him EUR 100,000 for a “notional licence” (fiktive Lizenz) and at least EUR 500 in compensation for infringing his right to protection of personality rights, and also to reimburse the costs incurred in serving the official notice. 13. On 21 January 2005 the Regional Court allowed the applicant’s application as regards the notional licence and costs, and dismissed it as regards compensation. It pointed out that although everyone had the right to ERNST AUGUST VON HANNOVER v. GERMANY JUDGMENT 3 decide whether or not to allow his or her name to be used for advertising purposes, the general right to protection of personality rights (allgemeines Persönlichkeitsrecht) protected a person against the unlawful use by third parties of his or her name, including in the context of advertising. The Regional Court went on to observe that although the forenames “Ernst” and “August” were fairly common, the combination of the two was not. Moreover, since entering into a relationship with Princess Caroline of Monaco the applicant had become well known and the crumpled cigarette packet was a clear allusion to his scuffles. The Regional Court explained that advertising was also protected by freedom of expression in so far as it contributed to shaping public opinion; this applied, in its view, to the impugned advertisement. It further pointed out that both the right to freedom of expression and the right to protection of personality rights were protected under the Basic Law and that, in principle, they deserved equal respect. Where a person was used for advertising purposes without his or her consent, the right to protection of personality rights prevailed as a general rule. The Regional Court added that the company’s argument that as a result of his scuffles, the applicant had himself caused the event to which the advertisement referred did not deprive him of protection but it did affect the degree of the interference and the level of protection of freedom of expression. In conclusion, the Regional Court held that when balancing the competing interests, more weight was to be attached to the protection of the applicant’s personality rights than to the company’s right to freedom of expression regarding an advertisement which was essentially humorous in nature and pursued commercial aims. 14. As regards the pecuniary damage sustained, the Regional Court pointed out that the aim of a “notional licence” was to ensure that anyone using someone else’s personality without permission would not be in a more advantageous position than if he or she had obtained the person’s consent. It explained that the cost of such a licence was determined on the basis of the amount of a fee that would have been reasonable (angemessen). Having regard in particular to the applicant’s high profile, the billboards and advertising media used, and the fact that the advertisement had only used the applicant’s forenames, the Regional Court assessed the pecuniary damage at EUR 60,000. It also awarded the applicant the costs incurred in serving the official notice because they had resulted from the actions of the company and the agency. 15. On the other hand, the Regional Court did not award the applicant compensation in respect of non-pecuniary damage on the ground that there had been no serious interference with the protection of his personality rights. It emphasised that the applicant had struck the cameraman in public and that the advertisement had simply referred back to that event. Furthermore, the fact that the advertisement was merely derisive meant that there was no unavoidable need (unabwendbares Bedürfnis) to award 4 ERNST AUGUST VON HANNOVER v. GERMANY JUDGMENT pecuniary compensation, and the award of a notional licence should be deemed sufficient redress. 2. Judgment of the Court of Appeal 16. On 15 May 2007 the Hamburg Court of Appeal upheld most of the Regional Court’s judgment, varying it solely as regards the order for the company to reimburse the costs incurred in serving the official notice. 17. The Court of Appeal observed that the company and the agency had interfered with the applicant’s right to his own name without his permission. In that context, it pointed out that even though the advertisement had only used the applicant’s forenames, those names were well known to the general public because of the relationship between the applicant and the daughter of Prince Rainier III of Monaco and the repeated press reports on the applicant’s altercations in 1998 and 2000. It further noted that the company had derived a pecuniary advantage from using the applicant’s forenames. In cases such as the present one, where the impugned advertisement was designed to enhance the recognition and sales of a brand of cigarettes, freedom of expression generally took second place to the protection of personality rights. The Court of Appeal considered that the impugned advertisement had made very little contribution, if any, to shaping public opinion, that the applicant’s scuffles had been neither a political nor a societal event, and that the incidents had only been exploited for the purpose of entertaining a general public curious about the behaviour of famous people. 18. The Court of Appeal further pointed out that the impugned advertisement had infringed the pecuniary aspect of the right to protection of personality rights by depriving the applicant of his right to make his own choice as to whether and how his name could be used for advertising purposes. Clearly, the advertisement had not given the impression that the applicant identified with the product advertised or that he recommended it, nor was it offensive or degrading in nature, but with the sole aim of increasing sales of a brand of cigarettes it publicly mocked the applicant by suggesting that he even crumpled up cigarette packets.
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