The broad scope of application of the General Data Protection Regulation (GDPR) and its primacy over national law pose some challenges for reconciliation with established national laws regarding the commercial exploitation of personal images for advertising purposes. There is however a jurisdiction that could serve as a model for illustrating this discourse: Germany. The GDPR aims to enhance control over personal data by restricting personal autonomy in private law, as consent is increasingly used as a tool to exploit personal data under the guise of personal autonomy. In contrast, the German legal system expressly recognizes the property component of the right to one’s own image and de facto allows for the licensing of the right to one‘s own image to address the inevitable and widespread market of commercializing personal portraits. Therefore, an interesting contrast awaits exploration.
Both the German legal system and the GDPR pursue (partially) the same goal, namely to strengthen informational self-determination, and both aim to combat the widespread commercialization of personality to some extent. However, they employ different legal instruments. Under almost identical application conditions, the GDPR is supposed to override the German legal regime concerning the commercial exploitation of personal images for advertising purposes, notwithstanding the flexibility Article 85 GDPR provides for Member States. This raises the following research questions: How does the GDPR regulate the commercial exploitation of personal images for advertising purposes? Are the consequences practically appropriate and theoretically justified?
Ultimately, the enforcement of unstable legal relationships between affected individuals and data controllers does not seem to meet the needs of celebrities and companies for collaboration. If in this regard the rules of the GDPR are not appropriate or reasonable, German experiences in dealing with the monetization of personal data could provide valuable insights for the GDPR to find a fair balance between the interests of the data economy through the exploitation of personal data and the protection of natural persons against the negative consequences of exploitation. Overall, the risk-based approach of the GDPR relies on clarifying and assessing risks in specific sectors, and in this regard, the German legal system regulating the right to one’s image offers more than 100 years of experience in mature markets of commercial exploitation of personal images for advertising purposes.
Part I of the dissertation establishes a framework explaining how the German legal system has regulated merchandising in both contract and tort law. Part II examines the application of the GDPR to unauthorized merchandising and merchandising with consent. The regulatory differences between the German approach and the protection offered by the GDPR are presented in Part III. Against this background, Part IV offers solutions de lege lata and de lege ferenda for the identified discrepancies. Part V, finally, concludes the dissertation with 25 theses.
Since this dissertation aims to propose concrete solutions to a very practical problem, case studies are essential. Therefore, at the beginning of Part I, several German merchandising cases are listed that will be examined throughout the work, as they provide a good starting point for comparing different legal systems. On the one hand, by assessing the same cases decided by German courts under the rules of the GDPR, the thesis manages to illustrate issues related to the regulation of the GDPR in the field of merchandising. Thus, the insights into the incompatibility of the two legal regimes are reliable and convincing. On the other hand, the solutions proposed in Part IV can be evaluated in real cases to determine which of them are robust enough to achieve a regulatory outcome that is not inferior to that of the German legal system.
To ensure that the overall picture of the German legal system and the GDPR is not compromised by the detailed description of cases, the first chapters of Part I and Part II provide a historical and comprehensive examination of case law and literature on both legal systems. The case study is only a tool to highlight regulatory differences. However, the proposed solutions are based on a comprehensive and in-depth understanding of the principles and objectives of the GDPR and German law in regulating the processing of personal data for merchandising purposes.
Publication
Sun, Jingzhou, Personality Merchandising and the GDPR. An Insoluble Conflict? (MIPLC Studies, 42), Nomos, Baden-Baden 2022, 282 pages.
