The German Federal Constitutional Court, Germany's supreme court, will soon have to decide what importance to attribute to the personality right of companies (Unternehmenspersönlichkeitsrecht) vis-à-vis artistic freedom. The reason such decision became necessary is that Grünenthal GmbH, the chemical company that produced the tranquilizer "Contergan" in the 1950s and triggered the worldwide "Contergan scandal," filed a constitutional complaint against the broadcasting of a feature film by Hogan & Hartson client, the production company "Zeitsprung," which used the true "Contergan scandal" as a guideline for its (fictitious) film plot.
In 1957, Grünenthal GmbH put the tranquilizer Contergan on the market promoting it, inter alia, as especially suited to pregnant women because of the lack of side effects, even though investigations were never conducted prior to its placement on the market as to why and in which way the tranquilizing effect was brought about. This explains why Grünenthal did not realize that the drug if taken by pregnant women could penetrate the placenta with devastating consequences for the unborn child. And devastating they were indeed. More than 5,000 handicapped babies were born in Germany alone, 2,000 babies died before birth, and, overall, approximately 12,000 babies fell victim to Contergan. As early as autumn 1958, Grünenthal received the first notifications from doctors and hospitals expressing their suspicion that Contergan might cause severe neural damages. In October 1961, after several research results were publicly disclosed following an article in a large German newspaper, Grünenthal removed the drug from the market while continuing to try to suppress criticism of the drug using various (unfair) means. Criminal proceedings were instituted against those responsible at Grünenthal. The criminal proceedings, however, became something of a scandal themselves: After the public prosecutor's office took six years to conduct its investigations and Grünenthal's attorneys protracted the proceedings for three years by applying clever tactics, the victims were forced to work towards a settlement before the claim became statute-barred in order to receive at least a minimal financial compensation. Grünenthal finally agreed to pay 100 million DM into an endowment for Contergan victims. The criminal proceedings were subsequently dropped.
Around the 50th anniversary of the Contergan catastrophe, our client, the production company "Zeitsprung", jointly with Westdeutscher Rundfunk (WDR), used the events surrounding the introduction of the drug to produce a feature film on the basis of historical facts. The film uses the main facts of the scandal but can clearly be identified as a feature film as it describes the story from the point of view of the victims' attorney who himself is the father of a child victim to Contergan.
Grünenthal nevertheless tried to prevent the film from being shot, even before shooting started, solely on the basis of the script. In February 2006, the Regional Court of Hamburg issued an interim injunction blocking the shooting of approximately 40 shots and dialogues. Grünenthal alleged, and was joined in its view by the Regional Court of Hamburg, that the representation of different historically not entirely correct facts would violate the company's personality right. Upon the appeal of WDR and Zeitsprung, the Hanseatic Higher Regional Court largely set aside the interim injunction and permitted the broadcasting of the film, arguing that our client could invoke artistic freedom and that it would not be evident that Grünenthal's personality right as a company was severely impaired. Grünenthal subsequently filed for a provisional order with the German Federal Constitutional Court aiming at a prohibition of the broadcast until a decision was rendered on the constitutional complaint. The Federal Constitutional Court rejected the filing in August 2007. The Federal Constitutional Court gave as reasons that it would represent a severe intervention not only in the freedom of broadcasting but also in our client's artistic freedom if it would be prevented from the television premiere of its feature film at a point of time chosen in terms of topical relevance and in a context chosen pursuant to media-specific aspects. The court pointed out that viewers would understand that the film is fictional, not a documentary, thereby justifying departure from the individual facts of the case.
Due to the rejection of the expedited motion, the film was broadcast on German TV in November 2007 and it received very high audience ratings. A decision on the constitutional complaint should soon be issued and should, in accordance with the Federal Constitutional Court's arguments brought forward in the summary proceedings, be in favor of our client. Hogan & Hartson also won the first and second instance of the principal proceedings. It is possible that the German Federal Court of Justice will also have to decide on the case.