From Dr. iur. Bruno Glaus, Uznach, 12.03.2002 / BG (original text German)
Situation
The starting point is the Clone-It project and the subsequent protests, because the self-portrayal of individuals in the web world is smashed, mutilated, spoofed, parodied, etc.
Conflict
Interests collide: interest in self-expression, interest in protecting intellectual property, interest in art debate and provocation through art, interest in scientific knowledge, interest in survival, interest in protecting privacy, etc.
General legal basis
Conflicts of interest are ultimately conflicts of fundamental rights (between the right to human dignity, personal freedom, protection of privacy, active and passive freedom of information, freedom of the media, freedom of art, guarantee of property, economic freedom and the right to political activity). The (indirect third-party effect of fundamental rights (Art. 35 BV) applies in private law – also in the area of the protection of personality rights (cf. Tarkan Göksu, Drittwirkung der Grundrechte im Bereich des Persönlichkeitsschutzes, SJZ 98, 2002, p. 89ff.). The question of the violation of personality rights and the unlawfulness of the violation of personality rights must be answered by interpreting undefined legal concepts in conformity with the constitution. In the event of a conflict, the judge must seek and determine a balance of interests in accordance with the principle of proportionality.
Protection of personality and fundamental rights
Not all civil liberties are also aspects of personality. The protection of personality includes the right to human dignity (Art. 7 BV), the fundamental right to life and personal freedom (Art. 10 BV), the protection of privacy and economic freedom (Art. 27 BV). The right to self-presentation is part of the constitutionally guaranteed personal freedom, concretised in Art. 28 ff. ZGB and in the Data Protection Act (enclosure), which is a law that includes any processing of personal information (i.e. it is not just a database law).
The question of unlawfulness
Not every violation of personality rights is unlawful and therefore inadmissible. On the contrary, a justifying factor can negate the unlawfulness of the violation, as a violation of personality rights is not unlawful if it is justified on the basis of consent, a legal provision or the pursuit of higher-ranking interests (Art. 28 para. 2 ZGB, SJZ 98, 2002, p. 99). In this case, the infringer invokes superior interests. In this conflict situation, the judge must find a balance between the conflicting fundamental rights, taking into account all the particularities of the individual case.
Permissibility of the reproduction of unlawful statements by the press
‘The dissemination of an unlawful press statement may be lawful under certain conditions. It is lawful at least if the third-party statement is presented completely and truthfully, is labelled as such and does not appear to be an original report by the disseminator, in a sense presenting its own view (recognisable distancing) and knowledge of it is of value to the reader (information interest)’ (medialex 1996, p. 41ff. and Christoph Born, Wann haften Medienschaffende für die Wiedergabe widerrechtlicher Äusserungen Dritter, in medialex 2001, p. 15).
Analogous application of the principles for artists
Interference with personal rights by artists can be lawful and therefore not unlawful under certain conditions. The basic prerequisite is an overriding interest in information, art or science. The interference should be recognisable as far as possible or at least declared in the concept as a limited ‘laboratory experiment’. The purpose may be, for example, to investigate the protests triggered by a project (comparable to blind and double-blind trials with drugs). In most cases, an intervention – usually unlawful – can only be justified for a limited period of time by an overriding artistic interest (e.g. action art, caging an animal, street harassment by theatre makers, etc.). The means used for the purpose must be necessary, proportionate and reasonable (cf. the data protection principles).
Enhancement of artistic freedom through the new Federal Constitution
The explicit mention of artistic freedom in the Federal Constitution will lead to this freedom being invoked more often than before to justify infringements of copyright or personality rights (Jacques de Werra, Liberté de l’art et droit d’auteur, medialex 2001, p. 143ff.). Not only will the privileges in copyright law be interpreted more extensively – for example, the right to quote, the parody privilege, the catalogue privilege – but the interest in an art debate or artistic statement in general will have to be weighed in the balance. Until now, however, this balancing of interests has only been a marginal subject of legal and cultural policy debates.
Cultural understanding influences legal judgement
The reactions to clone-it have shown: The legal judgement also depends on the understanding of art and culture of those affected and judging. The project was categorised as an outgrowth of an old eighties and sixties understanding of culture. Those who share the view that art and politics have something to do with each other come to different conclusions. In art history, there is ample evidence that the rebellion against the ruling power, the revolt, the negative is an act of creativity, perhaps even a basis for it. Thomas Mann, like Egon Erwin Kisch, wrote that art is ‘opposition’, Carl Andre described art as a ‘political weapon’, another art ‘as a model for carrying on regardless’ (Peter Weiss in Aesthetik des Widerstands), anyone who does not have the courage to smash forms in order to liberate life is not cultured (Antonin Artaud, quoted in: 1460 Antworten auf die Frage: Was ist Kunst?, Dumont Buchverlag, Cologne 2000, p. 131 ff.).