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Germany: Complex Press Regulations Attempt To Divide Public, Private Spheres

Munich, 27 May 1998 (RFE/RL) -- In March 1992, the popular German weekly Bunte, proudly announced a minor sensation -- it had achieved an exclusive interview with Princess Caroline of Monaco.

The magazine emphasized that the interview was a real coup because Caroline normally refused to give interviews. The interview itself consisted mostly of the usual trivia about Caroline's life, but it did contain a few snippets offering new information about the princess.

The real sensation came later. Under legal pressure, Bunte's publishers admitted that the entire interview was a fake -- that in fact Princess Caroline had never spoken to the magazine. It turned out to be a costly fabrication. Four years later, in July 1996, a Hamburg court ordered Bunte's publishers to pay Caroline more than $100,000 (DM 180,000) in compensation (Schmerzensgeld) .

The "Caroline Example," as it is called, is now frequently cited to underline the protection German law offers against too-intrusive media. The point is that even the so-called glamorous people, whose names appear frequently in sensationalist newspapers and magazines, cannot be considered media targets open to any kind of intrusion, misuse and abuse.

Of course, faking an interview carries misuse to its limits. But even in less extreme cases, German law on the media insists that all individuals, no matter how prominent, have the right to declare a private sphere which the media may not enter without permission. And the right to protection from intrusive media is even more strictly enforced for ordinary citizens.

In Germany, the behavior of the media is governed by a number of watch-dogs. There is a national press council and each individual state (Land) has a code of conduct, known as the "Pressekodex," for the media. In practice, the Pressekodex is virtually the same in each state. When its controls are violated, the victim can turn to the law.

In very broad terms, German law says that what is true can almost always be reported. But there are restrictions on reporting about intimate matters, about the private sphere and about previous convictions.

Michael Schmuck, a lawyer who has written a book about the law's application to the media, says that basically it is forbidden to write about intimate matters unless the person involved has agreed or has discussed them himself in public. Such matters may also be written about if they are common knowledge and can no longer be considered as intimate.

What are "intimate" matters ? According to Schmuck, the term covers everything that occurs in the bedroom or the bathroom and everything that concerns the body, including illness and nudity. That means, for example, that a newspaper cannot say that a person has cancer unless he has agreed to publication.

The question of what constitutes the "private sphere" may sound simple. But in Germany it can be complicated, particularly when it concerns people who are permanently in the public eye --politicians and other prominent figures such as athletes, actors and pop singers.

Paragraph eight of the Pressekodex says: "The press respects the private life and intimate sphere of the individual. However, if private behavior affects public interest, it may be discussed in the press in individual cases. But the issue of whether the personal rights of uninvolved persons are damaged must (also) be taken into consideration ."

Basically. the German media cannot report on, or photograph, an individual's private life without specific permission from the person in question. That clearly applies to life at home: A reporter or television cameraman cannot peer through the window or peek through the keyhole. The rule of thumb is that everything that happens behind fences or garden walls -- that is, everything in the house and garden -- is in the private sphere. In practice, this means paparazzi photographers who climb a tree or use a ladder to film what is going on behind the garden wall are committing what has been called "optical trespassing."

A "private sphere" can also sometimes be established in a public place -- a cafe, a park or a beach. If a prominent individual goes to a public cafe, sits in a corner and makes it clear, through gestures or statements, that he wants to be left alone, then that is his "private sphere." So what happens there should neither be written about or photographed. As a German court said in one case, such people are no longer "prominent" but just private persons -- people like you and I, who have a right to their privacy.

The best example of this in practice is long-time German Chancellor Helmut Kohl's annual vacations. For many years, Kohl has taken his summer holiday in the same Austrian lakeside resort. When he first arrives, the press is allowed a few so-called official photographs. After that, Kohl is in his "private sphere" as a holiday-maker and is never photographed swimming in the lake, eating in local restaurants or sunning himself in the garden.

Of course, when it comes to public figures, it is difficult to take an absolute position on privacy. As one commentator has said, if Frau Schmidt gives her daughter a slap in the garden that is no one else's business. But if a journalist happens to see a woman slapping a state premier in the garden, that may, in some circumstances, be considered a matter of public interest.

Drunkenness is also usually considered a private matter. One rarely sees in the German media anything about what happens at private parties attended by prominent people or reads detailed reports of drunken behavior by anyone in a public position. But one popular German entertainer is as well known for his drunken misdeeds at home and in foreign countries as he is for his talent. He makes comments about them himself in his stage and TV appearances. In these circumstances, his lack of sobriety is no longer in the "private sphere" and the media comment on it freely.

Unlike the media in many other countries, there is also little comment in Germany on marital problems. Media legal-expert Michael Schmuck says: "Lets assume that a government leader has an extra-marital affair, or a relationship, with a colleague. That is naturally a private matter. It may only be reported when this affair or relationship has a negative effect on his activities as a government official or a politician."

An example of such media forbearance is the case of Social Democrat leader Gerhard Schroeder, who is challenging Kohl for the German chancellorship in elections four months from now. Schroeder is also Premier of the state of Lower Saxony. Two years ago, before he became Kohl's challenger, many in his entourage -- and presumably many journalists -- knew he was having an extra-marital relationship. But it was not mentioned in the German media until Schroeder himself brought it into the open. Once he had done so, there was plenty of comment and many interviews with his abandoned wife, who had been with him since their student days. Schroeder has since divorced his wife and married the woman.

But if German rules allow the privacy of prominent people to be invaded in certain circumstances, this does not extend to those around them, particularly family and friends. Obviously, the German media is interested in the activities of Chancellor Helmut Kohl. But one reads very little about his wife and even less about his son because they are considered "private people" and not "public personalities."

In the case of Princess Caroline of Monaco, the German federal court has ruled that while she may be considered a "public personality" her children do not fall into this category. Therefore, photographs of them may not be published in the German press without specific permission. The exception is when the children appear along with Princess Caroline herself in officially approved photographs.

The complex rules governing the media in Germany also cover protection against slander, libel and misrepresentation. The most serious cases go to the courts. Apart from any other penalties it might decide on, a court often orders that the newspaper or magazine publish a correction on the same page as the original false report with the same amount of space. Thus, the magazine which said on its front page that it had conducted an exclusive interview with Princess Caroline also had to publish in the same space on the front page an admission that it had not spoken with her.

Another expression of controls on the press is the "gegendarstellung" ("opposing interpretation"). It appears rather frequently in newspapers or magazines at the demand of someone who believes he has been misrepresented. In one not very serious case, a designer of sports clothing published a "gegendarstellung" denying a press report that most of his women customers were over 50. He said they were between the ages of 25 and 40.

Most of the time, however, the "gegendarstellung" deals with more important matters. The rules governing the publishing of a "gegendarstellung" are quite strict, which usually means that only serious matters appear. The curious thing about the "gegendarstellung" is that it does not have to be true, but is simply an expression of the facts as seen by the protester. If the courts approve the use of this instrument, the newspaper or media concerned has to publish it without changes. In most German states, the press laws allow the newspaper to publish a short statement under the "gegendarstellung" saying that it is obliged to print it, regardless of whether it is true or not.

Naturally, the more popular, scandal-loving German newspapers do what they can to publish saucy stories regardless of press-law restrictions and the fear of libel laws. One of the most common measures employed is not to publish the full name of the individual involved. Instead of identifying a man in a scandal case as Johannes Schmidt, he will be named only as Johannes S.

This practice is also obligatory in reporting court cases. In Germany, the full names of the accused, the witnesses and even those of the lawyers and judges may only be published with their permission and when it is considered in the public interest to do so. Normally, it is considered enough to hide an identity by printing only the initial of the family name --for example, "the accused Henry J."

Again, this rule does not have to be observed fully in the case of a very prominent person or when the case is considered to be of special interest to the public at large. For instance, when the father of tennis star Steffi Graff was tried on tax-evasion charges, his name was given in full. And because at present there is great public feeling against child-killers, the German press usually prints the full name of a man convicted of the murder of a child.

But, to add to the complexity, the convicted German child-killer's family and friends are covered by the regulations on privacy. Without specific permission, they can be identified only by the initial of their last name. The same right of privacy applies to most of the witnesses in the case, unless they specifically allow the use of their full name.