Oxford University Comparative Law Forum
Privacy, Publicity and Restitution of Wrongful Gains: Another New Economy?
by Peter Schlechtriem1
(2001) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article
Table of content
Art. 8 of Schedule I to the Human Rights
Act 1998 protects privacy, and it has been predicted that this will spawn
an abundance of new actions and claims. The following is some speculation
on the basis of continental experiences as to what the law of restitution
and unjust enrichment may contribute to this coming legal wealth.
When in 1931 the amateur golfer Mr.
was depicted in an advertisement by the defendant chocolate manufacturers
with a packet of their chocolate protruding from his pocket, he could claim
compensation, but only on the ground that this was defamatory because of
the innuendo that he, an amateur, was willing to compromise his amateur
status for advertising money.2 I submit
that nowadays he could and should argue that although he would never have
sold his fame to anyone, if it was exploited without his authorization,
he should be able to claim the value of this use, i.e. what he would have
obtained if he had forgone his high principles and sold himself to the
Mr Tolley would have faced some problems
under German law as well. Although the right to claim in restitution in
case of wrongful invasion of someone's right of personality, of which privacy
is but an important part, is established beyond doubt, this had not always
been the case. First, the right of personality had to be invented after
the Second World War by the civil law courts and to be confirmed by the
Federal Constitutional Court, a right which was strongly based on the bill
of rights part of the German constitution protecting the dignity and integrity
of the individual.4 At first this right
was used only as a basis for injunctions to suppress untrue and damaging
press coverage, or to force the respective media - then mostly newspapers
- to publish a correction or revocation.5
That would not have helped the German equivalent to Mr. Tolley.
He came along as a gentleman horseback rider, whose photograph was taken
clandestinely and used in advertising for a viagra-like drug of the sixties,
much to his discomfort. Revocation would only have made matters worse.
So the courts granted him damages for pain and suffering as allowed in
cases of harm to body or liberty under § 847 of the German Civil Code,
a doctrinal crutch which was later abandoned.6
In the meantime, however, a then famous actor had already taken the direct
route of unjust enrichment law, when his picture was used without his authorization
to advertise Vespa motor scooters, claiming that he licensed the right
to use his picture as part of his general right of personality only in
exchange for money, and that this business opportunity was taken wrongfully
from him, for which he should be recompensed under the law of unjust enrichment.7
He and others after him succeeded. So did my daughter when she was 14 year
old. One day, she and a classmate were riding their ponies when a man approached
the two girls and asked them whether he could take pictures of them. The
girls were thrilled. Some time later, someone showed my daughter a teenager
magazine, with a wild story about two girls on ponies, lost in a swamp,
who had been rescued by the reporter of the said magazine. Four pages of
photographs depicted my daughter. It was a nice story, not in the least
defamatory. And the pictures were friendly, too. But they were published
without permission, to be precise: without my permission as a father.
My daughter was not too enthusiastic when I told her that I intended to
do something about this, but she became more sympathetic when I mentioned
that she could gain some money in the process. I investigaged with someone
who had knowlede of the media market and asked him about the tariffs for
buying pictures. I was informed that they would depend on the photographs,
their size and, most importantly, the circulation of the paper in question.
My source figured that a sum in the region of DM 1000 would be the market
price in the case of this teenager magazine and its rather limited circulation.
I called the chief editor, introduced myself and my profession, and asked
for an explanation. He said that he would investigate the matter, talk
to his lawyers, and contact me again. Three days later he called back,
apologized and explained that it was all the reporter's fault. I accepted
his apology and asked for more. He said: "How much do you have in mind?"
I brazed myself like a poker player and boldly asked for DM 3000. He answered:
"Would you accept a cheque?" I said "Yes", and felt like a fool for not
having asked for more. As it went the money was all spent on clothes at
The conclusion is that privacy, the
right of a person to be let alone, can have a market value. This value
belongs to the person, and not to the media or the public. If someone converts
this right to his own use and benefit without permission of the owner,
he has to surrender the proceeds, just as in the case of conversion of
I. Some comparative observations
How would Mr. Tolley fare today
in some European countries? I will begin with Germany:
1. Although recognized as a protected
right since the 1950ies, the right of personality and its main part, i.e.
the right of privacy, will not always trigger unjust enrichment claims
in case this right is violated. This is obvious where the invasion of privacy
does not yield any economic enrichment, as in the case of a Peeping Tom.
He may be subjected to an injunction, or held liable in a tort action for
non-economic loss, i.e. for damages with a punitive element, but not in
an unjust enrichment action. But even where and invasion of privacy had
clearly a monetary motive on the side of the defendant, a Mr. Tolley
as German plaintiff would be on the safe side only when suing in tort,
because for unjust enrichment claims the German Federal Court of Justice
has for long insisted on an additional requirement, which was absent in
Mr. Tolley's case, namely that he was willing to sell his right
and his reputation for money. Since the actor in the Vespa advertising
case had frequently licensed the use of his picture for advertising, he
met this requirement. Others failed because they never had, and never would
have, allowed their picture - or their name, their likeness, their voice,
their life history, all these being parts of the comprehensive right of
personality - being used for advertisement or other commercial exploitation.
However, a new decision seems to indicate a turn, since this decision emphasizes
the economic dimension of the right of privacy by recognizing that this
right can be inherited and exploited by successors. In this case, the daughter
of Marlene Dietrich was allowed to sue a firm which had used the image
of her mother for a musical, and which had also merchandised the musical's
name "Marlene" together with pictures and the signature of Marlene Dietrich.8
The economic gains of the wrongdoer
could, however, be equally skimmed off by tort claims if these gains were
taken into account when assessing the damages. This is what the German
Federal Court of Justice did in the famous Caroline of Monaco case, which
has been frequently mentioned and analysed in English law publications.9
The lower courts had granted a modest sum for violation of the princess'
right of privacy. The Federal Court of Justice reversed the Court of Appeal's
decision and advised the lower court expressly to take into account the
gains made by the publisher, who had printed a purely invented interview
with the princess, when measuring the damages for non-economic loss, not
the least in order to prevent this kind of prying and interfering with
people's private lives. Most academic writers who have commented on this
case have pointed out that damages which are not based on any loss suffered
by the injured person but rather on the gain of the wrongdoer are just
a claim for surrender of an unjust enrichment in disguise.10
2. The escape route to skim off wrongfully
gained benefits by tort claims must ring a familiar note in English ears,
as in 1972 exemplary damages were labelled in England as a "blunt instrument
to prevent unjust enrichment by unlawful acts.11
The same approach is even more popular in other jurisdictions, in particular
in France. There, the protection of la vie privée - as of
one's name and pictures - is well established in the law of torts. But
the gain of the wrongdoer is influential in the assessment of damages,
which belongs to the discretionary power of the judge of first instance
and, therefore, is rarely controlled by higher courts. In one case, the
defendant had marketed perfume under the name of "Rothschild" and was sued
by the American branch of the Rothschild family.12
The court of first instance had granted one symbolic franc as damages,
while the court of appeal awarded damages to the amount of the proceeds
from the sale of the said perfume. The singer Petula Clark received damages
for the unauthorized use of her image in a newspaper approximating the
price she used to obtain when she sold her pictures.13
The actor Jean-Paul Belmondo, whose picture was used to advertise clothing,
was granted damages taking into account the usual royalty he charged for
the use of his image.14 A model whose
picture was used for a record cover without her permission was granted
a share in the exceptionally rich proceeds from the exploitation of her
picture.15 Caroline of Monaco has also
inspired French courts.16 A paper had
published pictures showing her with her lover in a rather private situation.
The court of first instance granted her 80 000 Francs, but only one symbolic
franc to her lover. The paper appealed, claiming that the princess had
not suffered any economic loss. The Court de Cassation upheld the decision
of the first instance, leaving it to the discretion of the judge of first
instance to determine the damages in case of an intentional invasion of
the right of privacy. It comes as no surprise tha that in France as well,
academic writers argue that the right of privacy should be treated as a
property right granting its owner the exclusive right of exploitation,
a right which should be protected as is property in chattels.17And
since an unjust enrichment claim in case of conversion or other unauthorized
use of chattels is just one of many protecting remedies, it is but a small
step to qualify the disgorgement of the proceeds of an unlawful infringement
of the right of privacy as a claim founded in unjust enrichment.
1. The Human Rights Act 1998
not only protects the right of privacy but also - in Schedule I Art. 10
- the freedom of expression. A clash between these two rights seems to
be inevitable, because every newspaper or television station charged with
a violation of the right of privacy will claim immunity under the freedom
of expression guaranty. The conflict is familiar to German jurists, because
many cases of alleged violations of the right of personality involve the
defence of freedom of the press to inform the public, or of freedom of
the arts to use persons as objects of artistic creations, in other words
the defence that publishers, reporters and artists simply publish their
findings, pictures etc. on the basis and within the limits of the human
right of freedom of expression. In particular, where pictures of so-called
public figures, i.e. persons who are exposed to the limelight of public
interest because of their standing as politicians, star artists and sportsmen,
members of the high society of nobility and business high-rollers etc.,
were published, the defence could be raised that these persons were public
figures and therefore formed part of a public domain. German copyright
law even contains an exception from the consequences of unauthorized use
of pictures in case of such figures of "contemporary history", as they
are called by the statute.18 The German
courts and in particular the Federal Constitutional Court have continuously
attempted to strike a balance between the legitimate interest of the public
to be informed - this interest being the main basis for the protection
of the freedom of the media - on the one hand, and the equally legitimate
interest of public figures to secure at least a core of privacy on the
other.19 As decisions such as those in
the case of Caroline of Monaco and her children show,20
the results are sometimes very finely spun, because the outcome of a litigation
may depend on whether the princess moved within a public space, visible
with unarmed eyes by any curious spectator, or in a more or less secluded
area such as a private swimming pool, or the backroom of a fashionable
restaurant. False statements are not covered by freedom of expression,
unless they are clearly recognizable as being without substance,21
nor are defamatory or insulting language to express a value judgement protected.
This problem, e.g. the necessity
of balancing conflicting rights, which will certainly come up as a clash
between Art. 8 and 10 of Schedule I to the Human Rights Act, is, however,
not one of unjust enrichment claims alone, but concerns any remedy granted
or proposed to protect the right of privacy, such as an injunction to stop
certain publications, or a damage claim for an asserted violation of this
right. I would even dare the provocation of suggesting that unjust enrichment
claims in these cases may somewhat facilitate the balancing and finding
a solution. Let us assume that there are rumours that a member of the political
establishment is consorting with figures of dubious reputation; Christine
Keeler's recently published biography,22
or Jeffrey Archer's woes may serve as a model. In this situation, the public
has a legitimate interest in knowing all about these rumours, which extends
to seeing pictures which prove the allegations or accusations made by a
newspaper. But why should the use of these pictures be free? This resembles
claiming my land for the construction of a motorway - the public represented
by the state may have the right to confiscate my land as public domain,
but not without compensation. If and in so far as Caroline of Monaco has
to put up with pictures of herself in various tabloids, why should she
not be entitled to the same compensation which she would have obtained
had she sold these pictures? We are concerned with the freedom of expression,
but not with freedom from having to pay for the material used for this
expression. And where the infringement of the right of privacy is not in
conflict with the freedom of press, such as in cases of unauthorized use
of pictures or of a name for advertising or marketing of products, it is
obvious that the right of privacy cannot be regarded as a kind of common
property which is free to be exploited like the air by anyone who intends
to make a profit by its use.
2. There are other counter-arguments
to my thesis. A right to be compensated under unjust enrichment principles
for the exploitation of the right of privacy tends to favour the rich and
famous, because their publicity increases the value of their right of privacy
considerably in comparison to ordinary people such as this author and most
of his readers. Tony Weir has phrased this concern acidly in the
following words: "...to give a right of privacy whichcan be vindicated
only publicly will benefit maily publicity-seekers ... who are indignant
that vulgar exposure by others has prevented their making a profit by vulgar
self-exposure".23 That is true, but letting
aside the vulgarity aspect, which does not really add to the issue,24
the circumstance that some people are better of than others, i.e. that
some people have more valuable assets than others and therefore get higher
compensation for an unauthorized conversion or use of their assets than
others, is a fact of life. The law of privacy in general and the law of
unjust enrichment in particular are not tools of social engineering to
be used to soften inequalities in wealth and sources of wealth such as
3. Tolley, as mentioned
before, would not have succeeded in the German Federal Court of Justice
with an unjust enrichment claim based on exploitation of his image, because
he himself had never and would have never marketed his image himself. It
is only - thus goes the argument of Germany's highest court in civil matters25
- if the owner of the right of privacy had himself already marketed his
right of privacy , or if he at least was willing to do so, that he could
he claim compensation for its unauthorized use. This requirement is an
unnecessary, and self-imposed obstacle. If we place the economic value
of the right of privacy on the same footing with the economic value of,
say, a chattel, it becomes clear that this economic value, which belongs
exclusively to the owner, is independent of the owner's intention to exploit
this value on the market. If I own a portrait of one of my ancestors, an
heirloom which I would never sell, and someone converts it, I surely can
claim the proceeds of this conversion. Why should it make any difference
if it is my picture that someone converts into money, which I myself would
never have done?
To summarize, unjust enrichment
claims seem to me to be an almost ideal legal instrument not only to protect
the right of privacy, but also to cope with the necessary weighing and
balancing of counter-rights such as the right of freedom of expression.
If one has to surrender the profits from the unauthorized use of pictures,
even if their publication may be qualified as a protected expression, the
incentives for the more outrageous examples of prying and spying into other
people's lives might be somewhat reduced.
1 Dr.iur. Dr.h.c.
Prof. em. University of Freiburg, Germany. This paper is based on a lecture
given at the University of Oxford on February 23, 2001. The author wishes
to express his deeply felt gratitude for the invitation to hold the Heather
Grierson Visiting Professorship in European and Comparative Law during
the academic year 2000-2001, which allowed him to lecture and conduct research
in Oxford during Hilary Term 2001.
2 Tolley v J.S.
Fry and Sons, Ltd.,  AC 333.
3 But see House
of Commons Library Research Paper 98/25 of 13.02.1998.
4 The leading case
is BGH 25.5.1954, BGHZ 13, 334 (Schacht), reproduced in translated form
in Lawson/Markesinis, Tortions Liability for Unintentional Harm
in the Common Law and the Civil Code, vol. II (1982), pp. 105-110; also
in Markesinis, The German Law of Obligations, vol. II (Torts), 3.
ed. 1997, p. 376 et passim.
5 The development
is analyzed and illuminated by Markesinis, The Right to Be Let Alone
Versus Freedom of Speech, in: Foreign Law & Comparative Methology,
Oxford 1997, pp. 382-397; see also Stoll, The General Right to Personality
in German Law: An Outline of its Development and Present Singificance,
in: Markesinis (ed.), Protecting Privacy, Oxford 1999, pp. 29-47.
6 BGH 14.2.1957,
BGHZ 26, 349 (English translation in Markesinis, The German Law
of Obligations, vol. II, pp. 380 et seq.
7 BGH 8.5.1956,
BGHZ 20, 345.
8 BGH 1.12.1999,
BGHZ 142, 214.
9 BGH 15.11.1994,
BGHZ 128, 1; see Schlechtriem, in: Markesinis, Protecting Privacy,
Oxford 1999, pp. 131 et seq.
10 See Seitz,
NJW 1996, pp. 2848-2850; Canaris, Gewinnabschöpfung bei Verletzung
des allgemeinen Persönlichkeitsrechts, in: Festschrift Deutsch, 1999,
pp. 85-109 at 88 for a classical example for the analysis of unjust enrichment
claims in these cases.
& Co. Ltd. v Broome  AC 1027, 1130 (Lord Diplock).
Paris 4.July 1984, D.S. 1985. J. 293; Cour d'Appel Paris 10. July 1986,
J.C.P. 1986.II.20721 (note Agostini).
13 Cour d'Appel
Paris 1.Dec. 1965, J.C.P. 1966. II.14711 (note Lindon).
14 Cour d'Appel
Paris 13. Feb. 1971, J.C.P. 1971.II.16774.
15 Cour d'Appel
Paris 19. Sep.1985, D. 1986 IR 189.
16 Civ.1re 5.
Nov. 1996, D. 1997, 403 (note Laulom).
D. 1999, pp. 541 et seq., 543.
18 § 23 Kunsturhebergesetz
(Law Concerning Copyright on Works of Art and Photography) of 9.1.1907.
19 See Markesinis,
The Right to be Let Alone (supra note 5); the latest "balancing"decision
of the Federal Constitutional Court (BVerfG 9.10.2000, NJW-RR 2001, 411)
dealt with a (false) statement by the defendant that the plaintiff, a CEO
of a company, had defrauded the company. The court emphasized that "the
result of the balancing is based on the concrete case and cannot be generally
and abstractly anticipated"; in case of factual statements, true statements
must besuffered, while false statements need not.
20 BVerfG 15.12.1999,
NJW 2000, 1021; see also et seq. BVerfG 31.3.2000 and 13.4.2000, NJW 2000,
21 See BVerfG
9.10.2000, NJW-RR 2001, 411.
22 Christine Keeler,
Truth at Last (2001).
23 Weir, A Casebook
Tort, 9th ed. (2000), p. 331.
24 One might for
instance wonder whether this verdict applies to my daughter.
25 See BGH 14.2.1958,
BGHZ 26, 349, 353.
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