Can a company mention the name of an expert without first obtaining their consent? The Federal Court of Justice (I ZR 171/21) has provided a clear answer to this question of naming without consent—and it is different from what many would expect.
Use of name without consent does not violate naming rights
A specialist spoke about irritable bowel syndrome at a press conference in 2019. The press kit, including the quote, was subsequently made publicly available online.
A pharmaceutical company later picked up on this quote and used it—unchanged, factually and without any reference to a product—in an informational advertisement. The doctor demanded that the company cease and desist and pay damages for lack of consent. However, all courts, including the Federal Court of Justice (BGH), dismissed the lawsuit.
Why is naming permitted?
1. No violation of § 12 BGB (right to a name)
§ 12 Right to a name
If the right to use a name is disputed by another party or if the interests of the entitled party are infringed upon by another party using the same name without authorization, the entitled party may demand that the other party remedy the infringement. If further infringements are to be expected, the entitled party may take legal action to prevent them.
Section 12 of the German Civil Code (BGB) protects against the misuse or confusion of a name.
The Federal Court of Justice (BGH) clarified:
- The name was mentioned solely for the purpose of providing a correct source reference.
- the company did not adopt the name
- there was no risk of confusion
This meant that there was no unauthorized use of the name.
2. GDPR: Lawful data processing
The GDPR protects personal data such as names. However, use is permitted if there is a legitimate interest and the rights of the individual do not outweigh this.
The Federal Court of Justice considered the processing to be permissible in this case because:
- the quote was publicly accessible
- it was reproduced accurately
- the advertisement also provided information to the public
3. No infringement of general personal rights
The general right of personality protects against unwanted advertising or misrepresentation, among other things.
There was no interference because:
- the quote was correct
- no recommendation or proximity to the product was suggested
- the doctor had actively entered the public arena and had to expect his statements to be published (so-called "self-disclosure")
The public interest in information thus outweighed his personal interests.
What the ruling means
The ruling means that publicly expressed and accurately reproduced statements may be used by name even without consent, as long as this does not give the impression that the person is advertising a product. It thus strengthens freedom of communication, but sets clear limits on distorted or promotional representations.
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