“Esra”: Forbidden Forever

I’m a bit late in getting around to this, but the German Federal Constitutional Court has issued a decision confirming (G) a lower court’s ban on German novelist Maxim Biller’s novel "Esra." The book revolves around the relationship of two figures named Esra and Adam, a first-person narrator, and was closely modeled on Biller’s personal life. The problem, from the perspective of German law, was that Biller inserted a very big clef into this roman a clef — his novel-girlfriend was identified as the winner of a German film prize, and her mother as the winner of an alternative Nobel Prize — which was also true of his real life girlfriend. 

"Esra" and her mother sued, and won.  The high court’s 5-3 majority (decision (G); summary in press-release format (G)) held that because Biller described personal crises the ex-girlfriend faced and "intimate sexual practices," the novel intruded into the "private sphere" of the real-life person on which the character of Esra was based. So, unless you already have a copy of this novel, you won’t be getting to read it anytime soon. The court also noted that Biller mentioned facts that would have made the woman easily recognizable to a wide pool of persons. In fact, working from the facts mentioned in the court’s opinion, you can find out her name in about 30 seconds of Internet research. (A useful reminder that most lawsuits are filed for symbolic reasons, not to achieve a practical goal…)

Three judges dissented, in two opinions. They attacked the majority’s test for determining the extent to which a fictional character was based on a real one as unworkable: all art, they write, is a "transformation of the real into new realities," and judges are poorly-suited to determine whether an author has undertaken the legally appropriate degree of transformation. The dissenters also objected to the majority’s focus on descriptions of sexual intimacy; since the reader never knows exactly what aspects of a novel are the author’s pure invention, they might not necessarily immediately conlude the character in the novel had actually performed these acts.  Both decisions, say the dissenters, are ones that judges are ill-suited to make; two dissenters even suggest that under the majority’s rule, Goethe’s Sorrows of Young Werther would have been banned.

I tend to agree with the majority opinion here. The longer I live in Germany, the more sympathy I develop for legal rules that protect the private lives of ordinary citizens. These rules seem to have a strong Signalwirkung in Germany; in that the respectable press shies away from reporting details of public figures’ intimate lives to a much greater extent than in the United States, where even the biggest newspapers run columns analyzing politicians’ weight, hairstyle, home decoration taste, and even preference in underwear. Some people see this American obsession with personality trivia as a harmless distraction, but I think history, over the past six years or so, has shown that it can have grave world-historical consequences.

Of course, the laws themselves are the product of cultural factors. As the article I quoted a few weeks ago shows, even in daily interaction, Germans keep many aspects of their private lives to themselves, and therefore understand the rationale of laws that help them do this.  Another point in favor of the majority opinion is the ease with which Biller could have changed some of the details in the novel.  Because of the details Biller discusses, it’s not just the small circle of people who knew Biller would be able to identify the character.  That’s the risk anyone who sleeps with a writer takes. What Biller did revealed the woman’s identity to the much larger pool of people who know who won the German film prize in that particular year.  Finally, on an aesthetic note, I find novels in which writers neurotically dissect their personal lives kind of superfluous, so anything that discourages more of them can’t be all bad.  Here, I note that Biller very unwisely sent his ex-lover a copy of the book saying he wrote it "only for you" to show the woman how much he loved her.  The majority couldn’t help citing this fact on the first page of its opinion.

But, the American in me can never get used to the idea of banning a book (rather than awarding money damages after the fact), and the dissenters do make a pretty convincing case for what, in American constitutional law, would be called the "chilling effect" of the majority’s rule.  You probably don’t want novelists constantly looking over their own shoulders, monitoring whether they have altered enough details of a particular character who could be mistaken for a real person, and the majority’s rule would seem to bring about just this situation.

So, to sum up, if I could be split into 8 different people, I would rule just as the court did: 5-3.

16 thoughts on ““Esra”: Forbidden Forever

  1. “But, the American in me can never get used to the idea of banning a book (rather than awarding money damages after the fact)[…]”

    In my humble german opinion, things like privacy cannot be payed off by money.

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  2. “But, the American in me can never get used to the idea of banning a book (rather than awarding money damages after the fact)[…]”

    In my humble german opinion, things like privacy cannot be payed off by money.

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  3. I understand your point, Alphager. The reason I said that preventing the publication of the book is suspect in American eyes is that the United States has an historically-grounded distrust for what are called ‘prior restraints’ on the press. That’s the historical aspect of the Americna reaction, see here:

    http://www.rcfp.org/handbook/c05p01.html

    However, you could also make a pragmatic argument for letting the book be published, and then suing for damages. Say you’re “Esra”, and you sue Maxim Biller. You may be able to prevent the book being widely circulated by getting an injunction (Verfuegung). However, the fact that you sued a prominent writer will, itself, gain media attention. And, as the court’s opinion shows, enough facts will be revealed that will allow people to figure out who you are.

    Therefore, unless you could somehow prevent the press from reporting the fact of your lawsuit, it will nevertheless become public knowledge that intimate facts about your life were portrayed in his book, and people will be able to figure out who you are. Therefore, your privacy could end up being invaded much more deeply than it would if you had never sued, and simply allowed the book to be published. After all, a successful Maxim Biller book will probably sell perhaps a couple thousand copies, and if there’s no lawsuit publicity, many readers may never grasp that ‘your’ character was based on a real person.

    So the paradox is that by filing a lawsuit against a prominent person in a society with press freedom, you will inevitably draw additional publicity to the invasion of privacy you’re complaining about. If this outcome is inevitable once you file the lawsuit, then perhaps a better solution is to simply sue the author and the publishing house for damages. True, you’ll still increase the attention to the invasion of privacy, but at least you’ll be compensated for the damages, and the damages award could theoretically make the author and the publishing house more reluctant to publish privacy-invading books in the future.

    As I said, I’m sympathetic to the invasion of privacy claim in this particular suit. But I still question the effectiveness of trying to stop the publication of books, at least in an open society in which the reason the book’s publication was stopped — which itself is the thing you’re trying to keep secret — will become common knowledge.

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  4. I understand your point, Alphager. The reason I said that preventing the publication of the book is suspect in American eyes is that the United States has an historically-grounded distrust for what are called ‘prior restraints’ on the press. That’s the historical aspect of the Americna reaction, see here:

    http://www.rcfp.org/handbook/c05p01.html

    However, you could also make a pragmatic argument for letting the book be published, and then suing for damages. Say you’re “Esra”, and you sue Maxim Biller. You may be able to prevent the book being widely circulated by getting an injunction (Verfuegung). However, the fact that you sued a prominent writer will, itself, gain media attention. And, as the court’s opinion shows, enough facts will be revealed that will allow people to figure out who you are.

    Therefore, unless you could somehow prevent the press from reporting the fact of your lawsuit, it will nevertheless become public knowledge that intimate facts about your life were portrayed in his book, and people will be able to figure out who you are. Therefore, your privacy could end up being invaded much more deeply than it would if you had never sued, and simply allowed the book to be published. After all, a successful Maxim Biller book will probably sell perhaps a couple thousand copies, and if there’s no lawsuit publicity, many readers may never grasp that ‘your’ character was based on a real person.

    So the paradox is that by filing a lawsuit against a prominent person in a society with press freedom, you will inevitably draw additional publicity to the invasion of privacy you’re complaining about. If this outcome is inevitable once you file the lawsuit, then perhaps a better solution is to simply sue the author and the publishing house for damages. True, you’ll still increase the attention to the invasion of privacy, but at least you’ll be compensated for the damages, and the damages award could theoretically make the author and the publishing house more reluctant to publish privacy-invading books in the future.

    As I said, I’m sympathetic to the invasion of privacy claim in this particular suit. But I still question the effectiveness of trying to stop the publication of books, at least in an open society in which the reason the book’s publication was stopped — which itself is the thing you’re trying to keep secret — will become common knowledge.

    Like

  5. “These rules seem to have a strong Signalwirkung in Germany; in that the respectable press shies away from reporting details of public figures’ intimate lives to a much greater extent than in the United States”

    I might be mistaken, but I think it’s less the legal rules on privacy that make the press shy away, but rather that people usually don’t want to know that much about public figures’ private lives and preferences. What happened in the US with Clinton and Lewinski would have been unthinkable here. If Schroeder had had sexual relationships with a trainee, it probably wouldn’t even have been a topic. Even if it had and if he’d lied about the facts afterwards, it’s hard to imagine someone would have brought charges against him. Private lives of public figures tend to be regarded as private in the literal meaning (from privatus, Latin for “dissociated”). There are exceptions, of course, with certain public figures being hunted down by paparazzi, but in general the interest remains rather low.

    Like

  6. “These rules seem to have a strong Signalwirkung in Germany; in that the respectable press shies away from reporting details of public figures’ intimate lives to a much greater extent than in the United States”

    I might be mistaken, but I think it’s less the legal rules on privacy that make the press shy away, but rather that people usually don’t want to know that much about public figures’ private lives and preferences. What happened in the US with Clinton and Lewinski would have been unthinkable here. If Schroeder had had sexual relationships with a trainee, it probably wouldn’t even have been a topic. Even if it had and if he’d lied about the facts afterwards, it’s hard to imagine someone would have brought charges against him. Private lives of public figures tend to be regarded as private in the literal meaning (from privatus, Latin for “dissociated”). There are exceptions, of course, with certain public figures being hunted down by paparazzi, but in general the interest remains rather low.

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  7. To those whose books are banned in this country, I would dare to suggest that they put a .pdf version of the book on the internet, from a server in Vanuatu or wherever they can’t be prohibited from doing so. Of course that way they still have to forego the income they would have made in Germany, but at least the book is made publicly available to German readers.

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  8. To those whose books are banned in this country, I would dare to suggest that they put a .pdf version of the book on the internet, from a server in Vanuatu or wherever they can’t be prohibited from doing so. Of course that way they still have to forego the income they would have made in Germany, but at least the book is made publicly available to German readers.

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  9. Norbert — I like the suggestion about posting banned books on websites. In fact, I like the idea of posting all books on websites.

    Now, you contend that “people usually don’t want to know that much about public figures’ private lives and preferences.”

    I don’t know if you’re German, but if you are, I suggest you’re making a teeny little mistake. People like you, and other members of the more educated classes in Germany, probably don’t want to know this information. For that matter, neither do I. But millions of other Germans — in fact, the majority of them — do want to know about the private lives of public figures. That’s how the biggest-selling newspaper in Germany got that way.

    That’s why I carefully mentioned the elite in my original post. I would wager that, in general, there’s not much difference in the amount of interest in private lives of public figures in the U.S. and Germany. The difference is that there is a much starker elite/non-elite distinction in the extent to which this interest is admitted to/gratified. German elite journalists follow a strict code about what they will choose to report, but American journalistic elites will report about matters that a German journalist would consider ‘private.’

    That’s my perspective.

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  10. Norbert — I like the suggestion about posting banned books on websites. In fact, I like the idea of posting all books on websites.

    Now, you contend that “people usually don’t want to know that much about public figures’ private lives and preferences.”

    I don’t know if you’re German, but if you are, I suggest you’re making a teeny little mistake. People like you, and other members of the more educated classes in Germany, probably don’t want to know this information. For that matter, neither do I. But millions of other Germans — in fact, the majority of them — do want to know about the private lives of public figures. That’s how the biggest-selling newspaper in Germany got that way.

    That’s why I carefully mentioned the elite in my original post. I would wager that, in general, there’s not much difference in the amount of interest in private lives of public figures in the U.S. and Germany. The difference is that there is a much starker elite/non-elite distinction in the extent to which this interest is admitted to/gratified. German elite journalists follow a strict code about what they will choose to report, but American journalistic elites will report about matters that a German journalist would consider ‘private.’

    That’s my perspective.

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  11. In fact, working from the facts mentioned in the court’s opinion, you can find out her name in about 30 seconds of Internet research. (A useful reminder that most lawsuits are filed for symbolic reasons, not to achieve a practical goal…)

    Not quite. The names are indeed not a secret at all, even though most news outlets avoid mentioning them. The fact that so-and-so was Maxim Biller’s girlfriend and that she sued him should really not be off-limits to the press. The details about their (sex) life that are apparently revealed in the book are.

    By the way, I dislike damages in such cases for another reason: I think it introduces bans and punishment through the civil-law backdoor (and that in a legal system where punitive damages are considered unconstitutional). For example, it is not forbidden by any criminal law statute to publish private letters without consent and you will not be punished for it. But it can easily happen to you that a court will make you pay a big sum of money if the aggrieved party desires so, but don’t worry, you are no defendant or anything, with all those funny rights that such people have.

    That is already the case in Germany. The basis for such claims is called Allgemeines Persönlichkeitsrecht (APR), and titles for damages as well as cessation and desistance can be derived from this right – which is exactly what happened in the case of Maxim Biller. It should be mentioned, if you will forgive me the trollish tone for a moment, that the APR appears in no written law because the judges of the BGH essentially pulled it out of their honourable asses in a blatant violation of the separation of powers which they proudly call “richterliche Rechtsfortbildung.”

    Like

  12. In fact, working from the facts mentioned in the court’s opinion, you can find out her name in about 30 seconds of Internet research. (A useful reminder that most lawsuits are filed for symbolic reasons, not to achieve a practical goal…)

    Not quite. The names are indeed not a secret at all, even though most news outlets avoid mentioning them. The fact that so-and-so was Maxim Biller’s girlfriend and that she sued him should really not be off-limits to the press. The details about their (sex) life that are apparently revealed in the book are.

    By the way, I dislike damages in such cases for another reason: I think it introduces bans and punishment through the civil-law backdoor (and that in a legal system where punitive damages are considered unconstitutional). For example, it is not forbidden by any criminal law statute to publish private letters without consent and you will not be punished for it. But it can easily happen to you that a court will make you pay a big sum of money if the aggrieved party desires so, but don’t worry, you are no defendant or anything, with all those funny rights that such people have.

    That is already the case in Germany. The basis for such claims is called Allgemeines Persönlichkeitsrecht (APR), and titles for damages as well as cessation and desistance can be derived from this right – which is exactly what happened in the case of Maxim Biller. It should be mentioned, if you will forgive me the trollish tone for a moment, that the APR appears in no written law because the judges of the BGH essentially pulled it out of their honourable asses in a blatant violation of the separation of powers which they proudly call “richterliche Rechtsfortbildung.”

    Like

  13. > the APR appears in no written law because the judges of the BGH essentially pulled it out of their honourable
    > asses in a blatant violation of the separation of powers which they proudly call “richterliche Rechtsfortbildung.”

    Seemingly they once felt the need to give their honourable behinds some serious boot themselves. They’re making up for past sins now, calling it justizspezifische Vergangenheitsbewältigung.

    Like

  14. > the APR appears in no written law because the judges of the BGH essentially pulled it out of their honourable
    > asses in a blatant violation of the separation of powers which they proudly call “richterliche Rechtsfortbildung.”

    Seemingly they once felt the need to give their honourable behinds some serious boot themselves. They’re making up for past sins now, calling it justizspezifische Vergangenheitsbewältigung.

    Like

  15. I’ll admit that personally, I arrived at a point where I find that but what about free speech!? chorus really tedious. And we’re speaking those guys could bore for their country tedious. I mean, seriously. I’m not going to go into the ever popular “yelling ‘Fire!’ in a crowded theatre” bit, or libel, slander, whatever. I’d just like to notice that, say, holocaust denial being punishable in Germany strangely hasn’t led to the world — or even just Germany — coming to an end. (And that’s not even going into how many seem to confuse a right to speak with one to be listened to.) That law with regard to the internet (as alluded to by Norbert), now that may be a topic worth discussing. Or in fact not that law specifically, but the handling of what is considered objectionable or illegal material in general, giving how wildly the views/laws on that seem to vary from country to country.

    Now as for Esra and all, is it just me, or is the obvious first response, Dude, if you seriously tried to prevent people from ending up thinking it’s a roman a clef, you’ve failed rather miserably — did it ever occurr to you that maybe, you’re a crap writer? 🙂 (Or conversely, gee, if he was this original with regard to their background, why would I assume him to’ve been more creative when it came to the sex bits?) Both, of course, are kneejerk reactions rather than the result of months and months of close-reading and analysis. 🙂

    Like

  16. I’ll admit that personally, I arrived at a point where I find that but what about free speech!? chorus really tedious. And we’re speaking those guys could bore for their country tedious. I mean, seriously. I’m not going to go into the ever popular “yelling ‘Fire!’ in a crowded theatre” bit, or libel, slander, whatever. I’d just like to notice that, say, holocaust denial being punishable in Germany strangely hasn’t led to the world — or even just Germany — coming to an end. (And that’s not even going into how many seem to confuse a right to speak with one to be listened to.) That law with regard to the internet (as alluded to by Norbert), now that may be a topic worth discussing. Or in fact not that law specifically, but the handling of what is considered objectionable or illegal material in general, giving how wildly the views/laws on that seem to vary from country to country.

    Now as for Esra and all, is it just me, or is the obvious first response, Dude, if you seriously tried to prevent people from ending up thinking it’s a roman a clef, you’ve failed rather miserably — did it ever occurr to you that maybe, you’re a crap writer? 🙂 (Or conversely, gee, if he was this original with regard to their background, why would I assume him to’ve been more creative when it came to the sex bits?) Both, of course, are kneejerk reactions rather than the result of months and months of close-reading and analysis. 🙂

    Like

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