Lucky Strike obtains favourable European Court of Human Rights judgments in German advertising cases

07 May 2015

Stefan Engels, Amir Heydarinami

The European Court of Human Rights (ECHR) has rejected the claims of two German celebrities, whose names and other details were used in a German advertising campaign for Lucky Strike, the cigarette manufacturer.

The celebrities, Dieter Bohlen and Prince Ernst August of Hannover, did not agree to the use of their names for commercial purposes. Despite this, the ECHR held that no breach of personal rights had occurred because the advertisements contained satirical references to events of public interest which were already in the public sphere. The case brought by Prince Ernst August of Hannover related to a Lucky Strike advertising billboard which showed a picture of a crumpled cigarette packet, accompanied with the slogan, "Was that Ernst? [which means 'serious' in German] Or August?". The advertisement’s slogan was an ironic reference to two altercations that had received media coverage in Germany many years before. The first incident, in 1998, allegedly involved Prince August and a cameraman, while the second incident, in 2000, allegedly involved the Prince and a nightclub manager. The case brought by Dieter Bohlen, a German musician and TV personality, related to a Lucky Strike advertising billboard bearing the words, "Look, dear Dieter, this is how you write great books easily". Certain words in the slogan had been crossed out (to give the appearance of having been deleted), although the words were in fact still legible. This was an allusion to reports that, following litigation, Dieter Bohlen had been forced to remove several passages from his sensational book Behind the Scenes.

Although both Prince Ernst August and Dieter Bohlen were initially awarded damages by the lower German courts, the German Supreme Court overturned these decisions and ruled in Lucky Strike’s favour in 2008.

The ECHR upheld the verdicts of the German Supreme Court, confirming that it is permissible for advertisements to make reference to individuals in the public eye (even without the relevant person’s consent), provided that:

  • the advertisement concerns an issue or event of public interest;
  • the individual involved has been the subject of public debate in respect of that issue or event;
  • the advertisement only contains information that is already known to the public; and
  • the advertisement does not do any additional damage to the reputation of the individual.

In the Dieter Bohlen and Prince Ernst August cases, the ECHR determined that these criteria had been fulfilled. The ECHR noted that the German Supreme Court’s judgments had identified a fair balance between freedom of expression and respect for private life.

 

This article is part of BrandWrites by Bird & Bird - May 2015