Schwartz and Peifer on Privacy Law in Germany and the US

Paul M. Schwartz, University of California, Berkeley School of Law, and Karl-Nikolaus Peifer, University of Cologne Law School, have posted Prosser's Privacy and the German Right of Personality: Are Four Privacy Torts Better than One Unitary Concept? It also appears in the California Law Review 98 (2010): 1925. Here is the abstract:

After fifty years, William Prosser’s essay “Privacy” rests securely in the canon of classic American law review articles. Today, Prosser’s verdict on the momentous article by Samuel Warren and Louis Brandeis can fittingly be applied to his own work: “It has come to be regarded as the outstanding example of the influence of legal periodicals upon the American law.” At the fiftieth anniversary of Prosser’s “Privacy,” this article takes a comparative approach in assessing his accomplishments. Germany’s legal system offers a fitting point of comparison because of its well-developed privacy law as well as its rich media landscape with similar kinds of invasions of privacy. Moreover, both the United States and Germany share the same Western cultural focus regarding the importance of the individual and the significance of permitting each person to use self-determination in forming her life.

We argue that Prosser built on the earlier work by Warren and Brandeis to operationalize their central insight into terms that the U.S. legal system could easily adopt. Prosser also decided that the common law privacy cases were not tightly linked to each other in a conceptual fashion, but rather were “a complex of four distinct and loosely related torts.” The splintering of the privacy tort was a highly significant and profoundly creative jurisprudential choice.

Yet, there is a road not taken in American privacy law – that of a right of personality. The idea behind such a right is that each person, as a unique and self-determining entity, is due certain kinds of protection. This Article explores the development and current status of the right of personality in Germany. German law views the privacy tort as safeguarding an interest that rests on human dignity.

Thus, while there is one unitary concept of tort privacy in Germany, more than four categories follow from it. Nonetheless, many of the resulting categories can be placed into the Prosser categories. In other words, there has been a fair amount of convergence between the two legal systems. Another aspect of the convergence concerns judicial methodology. German courts engage in a balancing approach that is quite similar to the tack of American courts.

There are also significant differences between the approaches in the Germany and the United States. One highly significant difference is that German personality rights have a constitutional aspect. As a result, they apply to the behavior of both the government and private parties. Another difference is that German law does not balance interests in cases that involve “a core area of life formation.” In these cases, the court conducts a necessary examination of whether a “significant impact” on the core interest took place. If such an impact occurred, the court must protect the individual against the violation of her interests. Information about the core area of private life is subject to absolute protection.

In the article’s final Part, it considers the present and future status of tort privacy in Germany and the United States and the relative merits of the two approaches. We conclude by discussing the question posed in this Article’s subtitle: are four privacy torts better than one? The answer turns, however, on the role that each legal form plays in its respective legal system and underlying culture. Our approach is to consider the different legal and cultural functions served by the different forms of the privacy tort in the United States and Germany.