DISSENTING OPINION OF JUDGE ZUPAN Č I Č

I regret that I am unable to join the majority in this case. Indeed, I believe that the German courts below the Federal Court of Justice were largely right in their assessment of the case.

I do not find the reversal of these lower decisions remotely persuasive.

At the centre of the controversy, as defined by the German Federal Court of Justice (see paragraph 24 of the majority judgment), is the balancing of the hierarchical position of Mr Bohlen ’ s personality rights and the freedom of expression.

The German provisions governing Mr Bohlen ’ s personality rights have their international equivalent in Article 8 of the Convention. To maintain, therefore, that the German legal order places them beneath the constitutional protection of the freedom of expression perhaps makes sense in the domestic legal order – although I find this an extremely formalistic opinion – but that is obviously not true at the international level. There can be no a priori predominance of the freedom of expression over the personality rights protected by Article 8 of the Convention.

True, the Federal Court of Justice referred to the pecuniary aspect, that is to say the damages for the violation of Mr Bohlen ’ s personality rights. It held that it was this compensatory aspect which could not be maintained on a par with the constitutional protection of the freedom of expression. I find this surprising. How can the remedy (damages for the violation of personality rights) be divorced from the right? The right and the remedy are two sides of the same coin.

Also, the implication of the advertisement is clear enough. It insinuates that Mr Bohlen would not have committed the alleged mistakes in his writing if only he smoked “Lucky Strike” cigarettes. The lit cigarette on top of the cigarette box is a clear recommendation to this effect. The message is not even subliminal; it is assertive and suggestive.

Furthermore, we are speaking here of the freedom of expression of the British American Tobacco Company in mocking Mr Bohlen, for purely and recognisably commercial purposes.

There is no redeeming value in the tobacconist ’ s message. This is not a message serving a social purpose of any kind – unless cigarette smoking is considered to be that redeeming social value.

On the contrary, in the valued social context of the efforts to prevent smoking – a recognised social goal! – tobacco advertising is certainly not a field in which freedom of expression should be protected. In my opinion, this would in principle be true even without Mr Bohlen ’ s complaint.

Tomorrow we might encounter a case in which the limits imposed by the Contracting States on cigarette advertising will be raised as a matter of the freedom of expression. The case of Mr Bohlen might be cited as the relevant precedent.

Understandably, Mr Bohlen – a non-smoker – felt offended and protested that his name and his work had been abused in order to promote cigarette smoking.

As I wrote in my concurring opinion in von Hannover v. Germany (no. 59320/00, ECHR 2004-VI), those who live in glass houses should not throw stones:

“And while I find the distinctions between the different levels of permitted exposure, as defined by the German legal system, too Begriffsjurisprudenz -like, I nevertheless believe that the balancing test between the public ’ s right to know on the one hand and the affected person ’ s right to privacy on the other hand must be adequately performed. He who willingly steps onto the public stage cannot claim to be a private person entitled to anonymity. Royalty, actors, academics, politicians, etc. perform whatever they perform publicly. They may not seek publicity, yet, by definition, their image is to some extent public property.

Here I intend to concentrate not so much on the public ’ s right to know – this applies first and foremost to the issue of the freedom of the press and the constitutional doctrine concerning it – but rather on the simple fact that it is impossible to separate by an iron curtain private life from public performance. The absolute incognito existence is the privilege of Robinson; the rest of us all attract to a greater or smaller degree the interest of other people.

Privacy, on the other hand, is the right to be left alone. One has the right to be left alone precisely to the degree to which one ’ s private life does not intersect with other people ’ s private lives. In their own way, legal concepts such as libel, defamation, slander, etc. testify to this right and to the limits on other people ’ s meddling with it. The German private-law doctrine of Persönlichkeitsrecht testifies to a broader concentric circle of protected privacy ... The Persönlichkeitsrecht doctrine imparts a higher level of civilised interpersonal deportment.

It is time that the pendulum swung back to a different kind of balance between what is private and secluded and what is public and unshielded.

The question here is how to ascertain and assess this balance ... I would suggest a different determinative test: the one we have used in Halford v. the United Kingdom (judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III), which speaks of ‘ reasonable expectation of privacy ’ .

The context of criminal procedure and the use of evidence obtained in violation of the reasonable expectation of privacy in Halford do not prevent us from employing the same test in cases such as the one before us. The dilemma as to whether the applicant here was or was not a public figure ceases to exist; the proposed criterion of reasonable expectation of privacy permits a nuanced approach to every new case ... Of course, one must avoid a circular reasoning here. The ‘ reasonableness ’ of the expectation of privacy could be reduced to the aforementioned balancing test. But reasonableness is also an allusion to informed common sense, which tells us that he who lives in a glass house may not have the right to throw stones.”

It is a tautology to say that everybody who has ever published a book has sought publicity. This is what publishing anything is all about. However, for the Federal Court of Justice to maintain that Mr Bohlen himself courted publicity to further his own interests (see paragraph 26 of the judgment), and was consequently hostage to adverse publicity because he had published a book, is going too far.