Protection of personality rights
Recent years have also seen tort law assume greater significance for the protection of personality rights. For example, a decision of the European Court of Human Rights, criticising the inadequate protection of the private sphere of prominent persons by German law (decision of 24 June 2004, ECHR NJW 2004, 2647), has considerably improved the chances of very prominent people to fend off intrusions into their private lives. Several states have also enhanced the protection of personality rights with regard to illegal photographs, minors and the deceased.
Moreover, the sharp distinction between damages awarded for pain and suffering and for violations of personality rights, which the German civil courts have been practicing for years, was affirmed by Germany's Federal Constitutional Court (BVerfG NJW 2000, 2187) and expressly approved by legislators in the course of the German tort law reform of 2002.
This enables courts to award higher amounts of damages to persons whose personality rights have been violated: While damages for pain and suffering are based on the immaterial loss of the victim, damages for the violation of personality rights are nowadays based on the financial circumstances of the tortfeasor, i.e. normally the media group responsible for the violation.
The much-criticised discrepancy between the relatively low damages awarded for pain and suffering and the high amounts of indemnification paid for even relatively minor violations of personality rights does therefore not violate the principle of equality. Instead, the two indemnification obligations serve completely different objectives.
In the case of bodily injuries, criminal law assumes the preventive function of tort law. This enables tort law to restrict itself to providing compensation for the material and immaterial damages the victim suffered. Regarding the protection of personality rights, on the other hand, criminal law fails. Therefore it is left to tort law to enforce the law by deterring (potential) tortfeasors as well as compensating the victims.
The European Union's first two anti-discrimination directives from the year 2000 (2000/43/EG and 2000/78/EG) have meanwhile been implemented in all states except Germany. However, since these directives were frequently implemented significantly behind schedule and some states moved part of the protection against discrimination into criminal law, it is not yet possible to foresee what consequences this will have for tort law.
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