Decisions of the Federal Court of Justice
(Bundesgerichtshof)
Bundesgerichtshof (Sixth Civil Division) 19 September 1961
BGHZ35,363= NJW i96i,2059
(with approving notes by W. Rötelmann NJW 1962, 736 and H. Hubmann
= VersR 1962, 350, 562).
This case is first published in the German Law Archive courtesy of:
Translated German Cases and Materials
Under the direction of Professors P. Schlechtriem, B. Markesinis and
S. Lorenz
Copyright: Professor B S
Markesinis
Translated by F H Lawson and B S Markesinis
The plaintiff is a professor in the law faculty of the University of G at which he holds a chair of
international and ecclesiastical law. From a stay in Korea he had brought with him a ginseng root, which he
placed at the disposal of his friend Professor H, a pharmacologist, for research. The latter mentioned in a
scientific article on ginseng roots that he had come into possession of genuine Korean ginseng roots
'through the kind assistance' of the plaintiff. This led to the plaintiff being described in a popular scientific
article, which appeared in the year 1957 in the H and W journal, along with Professor H and other
scientists, as one of the best-known ginseng researchers of Europe.
The defendant company dealt in a tonic containing ginseng. In its advertisement for this tonic the plaintiff
was referred to as an important scientist expressing an opinion on its value, and in an editorial note, printed
in immediate connection with an advertisement in another journal, allusion was made to its use as an
aphrodisiac. Both the advertisement and the journal were very widely distributed.
The plaintiff claimed that he had suffered an unauthorised attack on his personality right; and that the
advertisement gave rise to the impression that he had, for payment, issued an opinion on a controversial
topic in a department of knowledge not his own, and unprofessionally lent his name to advertising a
doubtful product. He had suffered damage to his reputation as a learned man and been made an object of
ridicule to the public and above all to his students. In reliance on BGHZ 26, 349 (Herrenreiter) he claimed
DM 10,000 as satisfaction for the harm done to him.
The Landgericht awarded him DM 8000 as damages for pain and suffering. The appeals to both the Court
of Appeal and the Bundesgerichtshof were unsuccessful for these
Reasons
1. By invoking the plaintiff's scientific authority in its advertising to encourage belief in the effectiveness of
its preparation for the mentioned purposes, the defendant company unlawfully disparaged his personality
right (§ 823 I BGB). The reference to researches by the plaintiff, which lacked any objective foundation,
was in the circumstances calculated to make him an object of ridicule in society and lessen his scholarly
reputation. Moreover, he was bound to feel outraged by the way his name was used in advertising a
preparation recommended as a sexual stimulant. The defendant company's conduct was also blameworthy.
Before using the plaintiffs name for its advertisement it ought to have sought his agreement or at least to
have ascertained whether and where he had stated what was asserted in its advertisement. The information
in a popular article in the H and W journal ought in no way to have been adopted unseen; it was moreover
substantially altered. The Court of Appeal rightly characterised the defendant's conduct as irresponsible.
Likewise approval must also be given to the Court of Appeal's finding that the defendant company was also
responsible for the note in the M journal which adopted in somewhat modified form the contents of theadvertisement. Even if it was the advertising agency employed by the defendant company that caused the
note to appear, the information contained in it depended on material supplied by the defendant company. At
the very least, the defendant company had not supervised the advertising agency as was necessary.
2. The senate also agrees with the Court of Appeal's view that the plaintiff has a claim to compensation for
immaterial damage. The case is, in its main lines, very similar to those decided by the Bundesgerichtshof
and reported in BGHZ 26, 349 (Herrenreiter) and 30, 7. In both cases the way a product was advertised
attacked the protected sphere of the personality right of persons who claimed compensation for the
unlawful injury. In both the conditions for compensation for material damage were absent or at any rate not
proved. If, in the circumstances, no permission to use a name or portrait for advertising purposes is in
question, it is not possible to estimate pecuniary compensation on the lines of a licence fee according to the
principles governing so-called unilateral acquisition without permission. The First Civil Senate awarded
damages for pain and suffering to the plaintiff in the case decided by it and reported in BGHZ 26, 349 and
also regarded an award of -called 'immaterial damages', with its function of satisfaction as the adequate
compensation that the law must afford to a plaintiff for the violation of his personality right. From the
decision reported in BGHZ 30, 7 it must be taken that the standpoint of the Fourth Civil Senate is at least
not at variance with that of the First Civil Senate.
This Senate agrees with the First Civil Senate that satisfaction may be awarded to a person affected by the
blameworthy infringement of his personality right. It is indeed stated in § 253 BGB that money
compensation can be claimed for non-pecuniary damage only in cases expressly designated by the law.
When the BGB established that enumeration principle, the high value of the protection of human
personality and its special sphere had not received the recognition that it enjoys according to Arts. I and 2 I
of the Constitution. From the standpoint of the BGB, the protection of property interests always stood in the
foreground, whereas the personal worth of a human being received only insufficient and fragmentary
protection. In recognising a general personality right of mankind and granting it the protection of § 823 I
BGB, the courts drew for civil law purposes the consequences resulting from the rank the Constitution
assigned to the worth of human personality and the protection of its free development. That protection,
however, would be incomplete and full of loopholes if an infringement of the personality right did not give
rise to a sanction adequate to the violation. Just as the restriction of protection by the law of delict to
specific legal interests of a human being has proved too narrow to afford the protection of personality
required by the Constitution, so a narrowing of immaterial damages, for immaterial loss to cover only
injury to specifically mentioned legal interests, no longer conforms to the value-system of the Constitution.
For Art. I declares it to be an urgent obligation on the public power to protect the sacred dignity of the
human being. Article 2 I puts the right of a human being to free development of his personality at the head
of the fundamental rights. If the law of delict, in protecting the personality right in the non-material realm,
retreated completely to a position where it merely protected the particular personality interests mentioned
in Art. 2 II, which are emanations from the personality right, the civil law would not be paying attention to
the value-decision of the Constitution. The elimination of damages for immaterial loss from the protection
of personality would mean that injury to the dignity and honour of a human being would remain without
any sanction of the civil law, which deals with the disturbance of essential values and makes the doer of
injury owe satisfaction to the victim for the wrong done to him. The law would then renounce the strongest
and often only instrument calculated to ensure respect for the personal worth of the individual.
3. That does not mean that the legal consequences of injuries to body, health, and freedom on the one hand
and the violation of the personality sphere on the other hand must be exactly the same or at least largely
correspond to each other. A need for differentiation is already indicated by the fact that the factual aspect of
an injury to a general personality right is much less specific than where body, health, or freedom is injured.
That means that there are many marginal cases where the question is whether the case is one included in the
generalised description of violation of the personality and whether, if it does, the unlawfulness is not
excluded by the competing rights of the 'offender', among which the right to free expression of opinion
deserves particular attention. It is precisely where a so-called balancing of interest must take place that the
limits of what is allowed are not always easy to fix. If for every overstepping of the limits, however petty,
compensation for immaterial loss were to be awarded to the person affected, there would be a danger that
unimportant injuries would be used inappropriately to make a gain. The purpose of awarding satisfaction
would then be stultified. It must further be observed that it is more difficult to apply the general criterion of
monetary value to measure immaterial injuries to the personality right than the consequences of bodily
injuries. In injuries to the general personality right the satisfaction function of damages for pain and
suffering advances into the foreground as that of compensation recedes. Hence it will always be necessary
to look at the kind of injury to the personality right to see if the person affected, whose injury cannot
otherwise be redressed, should be granted satisfaction for the wrong he has suffered. That will in general
only be the case when the doer of damage is blamed for a serious fault or when an injury to a personality
right is objectively significant.
Only when such disturbances are serious may the civil law, taking seriously the protection of personality
and its value as such, react against the injury by granting satisfaction to the person affected. Insignificant
injuries do not call for satisfaction. Having regard to the special character of an injury to a personality right
Swiss law, which has devoted greater attention than the BGB to legal protection of the personality (cf. Art.
49 I of the Swiss Code of Obligations) also restricts damages for immaterial loss to serious cases.
4. The conditions for an award of immaterial damages especially occur when - as in a present case - there is
a wanton attack on the personality right of another person out of a desire to increase the force of one's
commercial publicity. Such an unfair attempt to succeed can be effectively countered only if it is burdened
with the risk of an appreciable loss, and on the other hand, anyone who seeks to make money out of an
unfair invasion of the sphere of another's personality must not feel hurt if he is forced to pay a money
compensation. For the plaintiff the outrage inflicted - in particular since the object was recommended for
specific purposes - was not at all insignificant, the more so because he ran the risk of readers assuming that
he had lent his name for a money consideration. The award of a money compensation by way of
satisfaction was justified by the seriousness of the attack as well as by the seriousness of the fault.
The amount of satisfaction to be given was for the judge of fact to assess. It could be attacked on appeal
only if it rested on an incorrect finding of the applicable law or if the judge of fact overlooked essential
points of view. No such defects, however, are here apparent. The Court of Appeal did right in attaching
importance to the spread of publicity, which extended to Austria and Switzerland. It was also an essential
factor in fixing the amount of the satisfaction that the defendant company continued the advertising
complained of even after being warned by the plaintiff, thus displaying an especially reckless attitude. On
the other hand, the Court of Appeal observed in the defendant company's favour that the mention of the
name in the advertisement was not especially prominent, so that it might not have been noticed by the
cursory reader.