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09.09.2016

Germany: Broadcast of abuse drama against the explicit wish of a victim

by Ingo Beckendorf
A former pupil of a school in the German District Hessen (“Odenwaldschule”), where the systematic abuse of children took place, tried to stop the broadcast of a film version of the dramatic events titled “The elected” (“Die Auserwählten”) by the German public broadcaster WDR. The District Court (“Landgericht”) Hamburg dismissed his action on the 3rd of June 2016 (rn.: 324 O 78/15).

Odenwaldschule Odenwaldschool (Photo: Kuebi = Armin Kübelbeck, Odenwaldschule Goethehaus 01, CC BY-SA 3.0)

Public focus was placed on the school, when the systematic abuse of its pupils by the headmaster and the teaching stuff became known at the end of the nineties. On 16th of June 2015, the school had to file for bankruptcy and the school closed several weeks later. A film version of the events titled “The elected” was produced and transmitted by the German public broadcaster ARD.

At the beginning of the film a text box pointed to the fact, that the film does not show the individual fate of a person, but rather exemplary the abuse of at least 132 children by the former headmaster and other teachers in its basic mechanisms. The plaintiff wants to prevent the further broadcast of several scenes of the film, which show a film figure named “Frank Hoffmann”. Claims for damages are not part of his action.

According to the Court, there are various indications, that the film and its transmission affect the general personality rights of the former pupil and abuse victim. It is obvious, stated the Court, that the film figure of “Frank” is based on the model of the plaintiff, as there are many identifying features as far as personal and school matters are concerned. However, after considering all interests, the Court concluded that rights of the defendants outweigh the personality rights of the plaintiff.

The film is a motion picture and no documentary, which could claim a detailed reproduction of all facts, said the judges from Hamburg. Relevant for the decision was the extent of alienation of the film figure from its model and the resulting consequences for the general personality rights of the plaintiff.

The more differences exist between the film figure and its original model, the lower is the impact on the personality rights of the plaintiff. As far as the similarities between the real events at the school and the film scenes are concerned, there are variations in the figure of “Erik” and the biological teacher “Petra Grust”. Furthermore, the plaintiff himself engaged in the public debate at some occasions.

Taking into account all circumstances of the individual case, the Court decided in favour of the defendant, although, it recognized that the broadcast of the film caused stress to the plaintiff and that the plaintiff deserves special protection as an under aged victim of a serious criminal act.

In the future the film shall be shown in schools, associations and other establishments as part of the educational and preventive work.

Ingo Beckendorf is research assistant in the Institute Of European Media Law (EMR) in Saarbrücken/Brussels.

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