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APR Jura: Das Recht am eigenen Bild und Wort - Grenzen und Möglichkeiten


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.




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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.


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.


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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.


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.</


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