Post-Mortem Personality Rights Protections under German Law

This article is devoted to the post-mortem personality rights protection under German Law. The aim of a present article is to investigate posthumous personality protection, especially a protection of a dignity of the deceased persons.

For the purpose of this article the German legislation as well as the German legal literature is analysed. Moreover, important case law is studied. For example, the most important case - the Mephisto case - is analysed. In that case the German Federal Constitutional Court established a right to posthumous personality protections. In Mephisto case the German Federal Constitutional Court ruled that it would be incompatible with the constitutional command of the inviolability of human dignity, if individuals could be freely disparaged after death. Accordingly, it means that in Germany, death does not stop the state’s duty to protect individuals from assaults on human dignity.

First, an issue of ambivalence of the dignity is examined. It is argued that after death a post-mortem personality rights of the deceased may still exist.

Second, the most controversial issues are explored. It includes both a comatose patients as well as transplantation of human organs. The comatose patients are not able to express their own will. It is not clear if they need a help or they want to save life even with a pain or suffering.

It is submitted that the transplantation of organs does not affect the human dignity of the deceased in case of fulfilling the following conditions: 1.) deceased person clearly expressed his/her will; 2.) the relatives agreed in case if deceased person did not clearly expressed his/her will; 3.) the transplantation is performed in accordance with the law.

Last, but not least the most important issue of modern time – posthumous personality rights and social networks – are presented. The existing social media accounts after death is a new global problem of the society. There are legislation provisions in Germany, which regulates posthumous protection of personality rights and human dignity in relation to the social networks. However, the legislation changes is much slower then dynamic development of the social networks and internet.