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.
German Joys 