Notes
Numerous disputes arising from artistic works (e.g. novels, films) in which real persons recognise themselves and believe that they are portrayed in a distorted or negative light support the finding that the core of the protection of the freedom of artistic endeavour no longer lies primarily in defending rights against the state (i.e. in protection against interferences and censorship by the state), but in the role of the state as an intermediary in resolving collisions between the fundamental rights of private persons. The research presented in the thesis strengthens my conviction that art is a value per se and therefore it must to be given particular weight in the event of a collision with other constitutionally protected rights and interests. Art is a free creative endeavour in which the artist's inner world is reflected and poured out into an artistic work that is externally perceivable through a certain artistic form of expression (e.g. writing, painting, stage performance, music). Considering the special importance of art for society and civilization - namely, artists fill the world's cultural treasury with their efforts and thereby make an invaluable contribution to humanity and give meaning to its existence - the legal assessment thereof must be extremely scrupulous and lenient. Artistic endeavour must be deemed a privileged form of the freedom of expression and the imparting of ideas and thoughts. The circle of entitled persons that may invoke the freedom of artistic endeavour is narrower than in instances involving the general freedom of expression (which everyone enjoys), while the extent and substance of legal protection within the scope of this right must be broader. Such special extent and degree of protection of the freedom of artistic endeavour must be reflected not only on the abstract but also on the concrete level. The legislature assigned a special weight to the freedom of artistic endeavour already when drafting the Constitution by determining it to be a specially protected category of freedom of expression. However, mere abstract recognition of art as a specially protected value does not suffice. Thus, the role of the courts when deciding individual cases involving a collision between the freedom of artistic endeavour with other personality rights is increasingly important, namely that they take into consideration and assign appropriate weight to artistic forms of expression when weighing and legally assessing the circumstances of an individual case. Art regularly draws inspiration from real events and persons, which the artist moulds with his or her subjective view and experience and transforms to a new aesthetic level. Artistic expression does not entail that the author wishes to communicate verifiable statements about reality to the public, but embodies the artist's efforts to provide his or her own artistic account, which does not directly refer to actual reality but is rather an account that creates a unique, aesthetic reality. An artistic work differs from inartistic forms of expression of opinions in that it is open to various interpretations and allows a multi-dimensional understanding of its substance. One of the elements of the freedom of artistic endeavour is that the artist may draw from fantasy. Thus, the presentation of reality in artistic works cannot be equated with reality itself, which entails that something declared by a literary character in a novel cannot be equated with the author's personal opinion. However, it would not be appropriate to deem art and fiction to be the same. Resorting to fantasy is one of the fundamental features of certain forms of art (e.g. literature, drama), but not all. In certain forms of art a realistic portrayal of real persons and events (e.g. paintings, sculptures, portraits) lies in the foreground. The criteria for a constitutional review when weighing between colliding rights are different in cases in which a review of the admissibility of interferences with the freedom of artistic endeavour is concerned than in cases involving a review of the admissibility of interferences with the general freedom of expression or the freedom of journalistic expression. The criteria must be adapted to the specific features of the art form of the work under review. In each such review the task of the court is to establish the specific features of an individual art form or genre (also by engaging court experts) and take them into consideration when weighing between the fundamental rights in collision. Not taking into consideration the specific features of the individual artistic form of the reviewed work in such weighing entails a denial of the freedom of artistic endeavour. A fundamental starting point of a judicial review involving literary works is that the narrative is fictional (i.e. the fictional nature of the literary work is assumed). This assumption applies also in cases in which real persons can be recognised behind literary characters. In order to establish a violation of a personality right it is assumed that a larger or smaller circle of readers can recognise the real person on which the author of the literary work based a character in the narrative. However, the fact that a person can be recognised does not in and of itself suffice to establish that a personality right has been violated. In addition, the intensity of the interference with the personality right must be assessed. In this regard, the following are important: first, the degree to which an author addresses the reader such that the reader can connect the substance of the author's literary work with real persons, and second, the intensity of the interference with the personality right if the reader makes such a connection. There is a mutual connection between the degree to which the author has created a new aesthetic reality that is independent of actual reality and the degree of the interference with the personality right. The greater the resemblance between a literary character and a person from real life, the greater the degree of the interference with the personality right. In other words, the greater the degree of artistic alteration, the lesser the risk of a violation of personality rights. When taking into consideration the circumstances of an individual case, the court must review and substantiate with great caution whether the degree of the interference with the personality right is so serious that the freedom of artistic endeavour must be withdrawn or subordinated. In view of the special importance of the freedom of artistic endeavour, minor interferences or merely the possibility of the occurrence of a serious interference with personality rights will not suffice for such a conclusion. Only a serious interference with personality rights can justify a limitation of the freedom of artistic endeavour.