Regional Court Frankfurt am Main: Postmortem personality right of a Holocaust survivor prevails over publications by a British history professor (Case 2-03 O 306/19)
by RA Dr. Christian Seyfert, LL.M. (San Francisco, GGU)
We have recently successfully represented the daughter of a Holocaust survivor in a civil case before the Regional Court in Frankfurt am Main. As the plaintiff, the daughter exercised the postmortem personality rights of her mother, who had died in 2010. The daughter now lives in Australia. At issue in this trial was the legality of the publication of statements and images by the defendant, a UK-based history professor. Because these publications had been made on the Internet and these Internet publications were also visible in Frankfurt am Main, the Regional Court in Frankfurt am Main affirmed its tortious jurisdiction in accordance with Section 32 of the German Code of Civil Procedure.
Facts of the case:
The plaintiff’s mother and her family were deported from Prague to the Jewish ghetto in Theresienstadt in December 1941. At the end of 1943 they were taken to the Theresienstadt family concentration camp in Auschwitz-Birkenau. In July 1944, this camp was closed and those who were classified as “fit for work” were sent to other concentration camps. The plaintiff’s mother and grandmother belonged to this group and were taken to a concentration camp in Hamburg. A female concentration camp guard worked there. This concentration camp guard fell in love with the plaintiff’s mother and imagined a future together with her after the war. In February 1945, the plaintiff’s mother was transferred to another concentration camp in Hamburg. The concentration camp guard also moved to this concentration camp. At the end of March 1945, the plaintiff’s mother was taken to the concentration camp in Bergen-Belsen, followed by the concentration camp guard.
After the Bergen-Belsen concentration camp was liberated in mid-April 1945, the concentration camp guard was arrested. The concentration camp guard had previously tried to hide among the prisoners. She was sentenced to two years in prison by a British military court in May 1946.
After the liberation, the plaintiff’s mother worked as an actress for a short time. She subsequently emigrated to Australia and died there in 2010.
The defendant works as an associate professor at a university in the UK. In her publications and lectures she deals with the aforementioned concentration camp guard and the plaintiff’s mother and publishes and speaks on issues of lesbian sexuality during the Holocaust.
The defendant contacted the plaintiff in 2014. When the plaintiff raised concerns about the planned publications, the defendant wrote to the plaintiff by e-mail on June 21, 2014 that she would only name the plaintiff’s mother with an abbreviated surname. The plaintiff also told the defendant that there was no sexual relationship between the concentration camp guard and her mother.
The defendant held various lectures in Germany on this topic in 2019. The defendant’s lectures were announced in German language on the Internet, for example, with the following words (in the following please find a translation into English):
“Sexuality in the concentration camp - facets of a forced female relationship
In the winter of 1945, the inmates of the Tiefstack women’s satellite camp observed the relationship between the guard [name of the concentration camp guard, deleted here] and the prisoner woman [name of the plaintiff's mother, deleted here] with fascination and loathing. Even though most of the survivors described [the name of the concentration camp guard, deleted here] as “decent”, the lesbian relationship aroused discomfort and thus reflected homophobia in the prisoner society.
According to the concentration camp guard’s story and interviews of the speaker with a lesbian Holocaust survivor of the camp [name of the defendant, deleted here] shows how forced and consensual sexuality can be thought about in the camps and how a queer story of the Holocaust makes it possible to recognize impotence and control of the victims of the Holocaust.”
The defendant promoted one of her lectures on her Twitter account using a photo portrait of the plaintiff’s mother. The defendant also provided a photo of the plaintiff’s mother to the operators of a Canadian website who used the image in a publication.
There is no evidence that the female concentration camp guard had ever actually sexually consummated her love for the plaintiff’s mother. The plaintiff’s mother would not have wanted a photo of her published when this publication is related to lesbian sexuality in the concentration camps. This would have destroyed the plaintiff’s mother’s lifetime image and achievements.
We had claimed in this lawsuit that the plaintiff’s mother’s postmortem personality rights had been violated and that her postmortem right to her own image had been violated.
For the plaintiff, who exercised her mother’s postmortem rights, we requested that the defendant refrain from
- making, verbatim or analogous, the allegation and / or from having it made and / or from disseminating it and / or having it disseminated that there was a sexual or lesbian relationship between the German guard in the concentration camps Neuengamme, Tiefstack and Bergen-Belsen [name of the concentration camp guard, deleted here] and the plaintiff’s mother, who died on 15.09.2010,
- using the unabridged surname of the plaintiff’s mother and / or having it used in connection with reporting on an alleged lesbian or sexual relationship with [name of the concentration camp guard, deleted here],
- spreading and / or publicly exhibiting portraits of the plaintiff’s mother, as such portraits can be seen e.g. in a photograph, in connection with reports about an alleged lesbian or sexual relationship with [name of the concentration camp guard, deleted here] without the plaintiff’s consent.
Violation of post-mortem personal rights:
The Regional Court in Frankfurt am Main followed our argument and decided the case in favor of the plaintiff. According to the Regional Court in Frankfurt am Main, the plaintiff is entitled to claim her mother’s post-mortem personality rights that the defendant must refrain from alleging that there was a sexual or lesbian relationship between the plaintiff’s mother and the concentration camp guard. According to the court, there was an illegal interference by the defendant with the plaintiff’s mother’s post-mortem personal rights. According to the court, the personality of every person is also protected beyond death based on the surviving dignity of the deceased person. See Sec. 1(1) of the German Constitution. In this regard, the deceased person is protected against serious disfigurement of her life image at the request of her close relatives. The plaintiff’s mother’s dignity was infringed in this case by the defendant’s allegation of a sexual / lesbian relationship of the plaintiff’s mother with the concentration camp guard.
The post-mortem protection of personality rights does not end after ten years regarding its non-monetary components.
According to the court, it does not matter whether the defendant’s allegation that the plaintiff's mother and the concentration camp guard were involved in a lesbian relationship is true. The fact whether the plaintiff’s mother had a lesbian relationship with the concentration camp guard is generally a matter of privacy. In such cases the core area of the personality is affected. Such an assertion means an intrusion into the deceased person’s private sphere. Even though social perception has changed to a large extent over the years, the revelation of an alleged homosexual orientation can still be assigned to the core area of the private sphere of a person which was violated in this case by the defendant.
Violation of the post-mortem right in one's own image:
The defendant must also refrain from spreading and / or publicly exhibiting portraits of the plaintiff’s mother, as such portraits can be seen e.g. in a photograph, in connection with reports about an alleged lesbian or sexual relationship with [name of the concentration camp guard, deleted here] without the plaintiff’s consent. Since the plaintiff’s mother is recognizable from the photo portrait at issue, the use of the plaintiff’s mother’s portraits in connection with reports about an alleged lesbian or sexual relationship with [name of the concentration camp guard, deleted here] is not allowed without the permission of the plaintiff.
The post-mortem protection of the plaintiff’s mother had not ceased to exist. Regarding the non-monetary components of the post-mortem rights in a person’s image, there is no expiration after ten years. The ten-year expiration refers only to the monetary components of post-mortem personality rights.
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