The Michael Schumacher “Interview”
24 April 2023
It has been widely reported that the German magazine Die Aktuelle recently ran a front cover with a picture of a smiling Schumacher and the headline promising ‘Michael Schumacher, the first interview’.
The strapline added: “it sounded deceptively real”.
Anyone walking past a news stand would have assumed that this was a genuine interview with the former Formula 1 driver, who has suffered catastrophic brain injury since a skiing accident in 2013. Only buyers of the edition would have learned from the full article inside, that the ‘quotes’ had been produced by AI.
The news agency Reuter reports that “Schumacher’s family maintains strict privacy about the former driver’s condition, with access limited to those closest to him.”
And in a 2021 Netflix documentary his wife Corinna said
“We live together at home. We do therapy. We do everything we can to make Michael better and to make sure he’s comfortable, and to simply make him feel our family, our bond …We’re trying to carry on as a family, the way Michael liked it and still does. And we are getting on with our lives.”
Unsurprisingly, Aktuelle’s profiteering has caused quite a furore and the editor-in-chief of Die Aktuella has since been sacked. The tabloid has also apologised to the family of the Formula One legend.
Of interest to us here is that the family is, or was, proposing to take legal action against the paper. To English lawyers, the puzzle is what would be the basis of their claim. It was not a libel, because the subject suffered no reputational damage. It was not a malicious falsehood, because the author of the piece “fessed” up to the fact that it was a fake. It was not a breach of confidence, because there was no relationship of confidence between Schumacher, his family, and the editors of Die Aktuelle. Apart from an action based on Article 8 of the European Human Rights under the 1998 Human Rights Act, there would in this country be no readily available legal action. They might have been able to rely on Naomi Campbell v MGN Ltd, a House of Lords ruling in 2004 that a newspaper that published photographs of the celebrated model leaving a Narcotics Anonymous had breached her right to privacy under Article 8.
The HL found – by a slim majority – that the photographs were confidential as their publication would have caused substantial offence to a person of ordinary sensibilities in the Claimant’s position. With this ruling, the HL effectively forged a free-standing right to privacy in English law under the (relatively newly introduced) Convention on Human Rights.
But the facts of the Schumacher case are clearly very different. What made it possible for the family to countenance legal action is an aspect of German law that has no mirror image on these shores. It is the concept of a “personality right” which is one of the interests protected under the umbrella of Paragraph § 823 of the German Civil Code. This provision, at first blush, only authorises tort recovery if the plaintiff can show injury to his “life, body, health, freedom, property, or some other (similar) right.” In order to bring cases of defamation or invasion of privacy within the ambit of this code provision, plaintiffs often argued that a person’s interest in his reputation and privacy should be regarded as his “personality right” and should be protected as one of the “other rights” mentioned in § 823.
Initially the German courts resisted this expansion of § 823. But then came the landmark case of “Soraya” in 1973 (BVerfGE 34, 269 = NJW 1973, 1221. Federal Constitutional Court in Proceeding Concerning the Constitutional Complaint of Publishing Company “Die Welt” and Mr. K.-H. V.)
In April 1961, the defendants’ paper carried a front-page story purporting to be the transcript of an interview with the plaintiff Princess Soraya, former wife of the Shah of Iran. The interview, which appeared to reveal much of plaintiff’s private and very private life, was wholly fictitious, i.e., it was totally and freely invented by its author, a freelance journalist. The defendants published the story without investigating whether the interview had actually taken place. In July, 1961, defendants’ paper carried another story dealing with Princess Soraya, and as a part of that new story the defendants published a brief statement by the Princess to the effect that the alleged April interview had not taken place.
Now this is getting a bit closer to the Schumacher story.
Princess Soraya sought damages for “violation of her personality rights.” The Landgericht (as court of first instance) awarded her D.M. 15,000. The Oberlandesgericht (intermediate appellate court) and the Bundesgerichtshof (court of last resort in civil and criminal matters, abbr. BGH) affirmed, and the defendants brought the case before the Federal Constitutional Court by way of a constitutional complaint.
The post-WWII German constitution, the Basic Law or Grundgesetz, has as its first two provisions the protection of human dignity and the free development of the personality (translation here).
In the Soraya case the BGH, explicitly invoking these constitutional provisions, held that a plaintiff’s “personality right” is one of the “other rights” which are protected by § 823 against intentional or negligent infringement. This was fundamental development in German tort law. In contrast to what had gone before, the German courts were henceforth able to treat injuries to a person’s reputation or privacy as actionable torts. Incidentally, until this case, defamation had been traditionally thought too as a crime rather than a tort in Germany. The German Civil Code contains no specific provisions concerning the subjects which our legal system would label as defamation or invasion of privacy.
So this was a judicial breakthrough that determined the course of privacy/personality actions in German ever since.
Even after this judicial breakthrough, however, a difficult issue remained to be resolved regarding the kind of damages for which recovery could be allowed under German law in cases of injury to the plaintiff’s “personality right.”
In cases that followed the Soraya ruling the BGH generally held that a cause of action for money damages under § 823 should be recognized only if (a) the injury to the plaintiff’s “personality right” is substantial, and (b) the defendant’s act is sufficiently culpable to justify the rendition of a money judgment in a sizeable amount. According to an analysis of the Soraya case, the BGH is inclined to find that both conditions, (a) and (b), are clearly satisfied in a case in which a defendant, by way of large-scale promotion of his own commercial interests, has wantonly violated the plaintiff’s “personality right.”
With admirable prescience and pragmatism, the German Court has pointed out the drastic technological and social changes that have taken place since the enactment of the Civil Code. The development of mass media, hardly predictable in 1900, makes the protection of an individual’s personality right more important and more difficult in our day. Any judge, said the BVG, who takes the value system of the German Basic Law seriously can no longer feel bound by the provision in the Civil Code insofar as that provision denies recovery for non-pecuniary damages even in cases of grave injuries to an individual’s personality right.
The German Constitutional Court (BVG) concluded, in Soraya, that
“occasionally, the law can be found outside the positive legal rules erected by the state; this is law which emanates from the entire constitutional order and which has as its purpose the ‘correction’ of written law. It is for the judge to ‘discover’ this law and through his opinions give it concrete effect. The Constitution does not restrict judges from applying statutes in their literary sense when deciding cases put before them. Such an approach assumes a basic completeness of statutory rules which is not attainable in practice . . . The insight of the judge may bring to light certain values of society . . . which are implicitly accepted by the constitutional order but which have received an insufficient expression in statutory texts. The judge’s decision can help realize such ideas and give effect to such values.”
Courts all over the world have struggled for decades to work out a balance between the right of free speech and the right of privacy. The Schumacher case has put this struggle in sharp focus, because none of the draughtsmen of the constitutional rights or indeed those adjudicating the conflicts before them could have predicted ChatGPT and its proliferating cousins.