BGH on former Chancellor memoirs: Will Kohl’s widow inherit millions in compensation?

Confidential conversations with Helmut Kohl are quoted in a book. A court awarded the former chancellor a million euros during his lifetime, and he died shortly afterwards. Will his widow inherit the claim? A case for the BGH.

135 tapes, more than 600 hours of material, thousands of pages of transcripts on paper – that was the result of long discussions between the former Chancellor Helmut Kohl and the journalist Heribert Schwan. Between 1999 and 2002 they were in the basement of Kohl’s house in Oggersheim. On this basis, Schwan wrote three authorized volumes as a ghostwriter – Kohl’s memoirs about the period from 1930 to 1994. Schwan had refrained from being named as an author in his publishing contract.

Before a planned fourth volume could appear, Kohl had a serious fall and suffered a traumatic brain injury. He could hardly speak afterwards. Shortly afterwards he married his second wife Maike Richter. During this time there was also a falling out between Kohl and Schwan. The reasons for this remain controversial. The publishing contract was terminated.

Years of litigation

At this point the story may end, but it is only just beginning. Because Schwan published another book together with a co-author. The title: “Legacy. The Kohl Protocols”, with numerous unauthorized and, above all, derogatory quotes from Kohl about other politicians. Years of legal dispute broke out over this publication between Kohl and Schwan as well as his co-author and the publisher.

Kohl’s widow has continued this legal battle since her husband’s death. It was about the violation of Kohl’s personal rights and compensation. Specifically, over 116 text passages were disputed. Kohl’s widow’s lawyers are demanding compensation of five million euros. Now the Federal Court of Justice will negotiate about it.

Confidentiality agreed

Schwan was convinced that he was not only allowed to publish the controversial quotes, but had to publish them. “I think that the contemporary witnesses or the generation of experiences that we are, we have all witnessed 16 years of Kohl, have the right to know what makes Kohl tick, how he thinks, what values ​​he has,” he said at the Frankfurt Book Fair 2014.

The courts have seen it differently over the years. In an urgent procedure, the publication of more than 100 text passages was prohibited. The Cologne Regional and Higher Regional Court assumed that Kohl and Schwan had agreed to maintain secrecy about their conversations. The two men had not expressly stipulated that. The duty of secrecy arises from the fact that Kohl should have “decision-making authority over the use of his statements”, while Schwan should only have a “serving function” as a ghostwriter.

The higher regional court later confirmed such a “right of final decision” of Kohl in the main matter. This was “the basis for many years of trusting cooperation”. It was only against this background that the former Chancellor opened up to Schwan. In this respect, the decision against Schwan is now final.

The Federal Court of Justice, on the other hand, has yet to finally clarify to what extent the publisher may distribute the quotations. Unlike Schwan, the publisher is probably not obliged to maintain secrecy. Therefore, it could also be a question of whether there is an overriding public interest in the publication of the quotations – and how difficult the personal rights of the former chancellor still weigh after his death.

One million euros in compensation

In 2017, the Cologne Regional Court also awarded the former chancellor a record amount: compensation of one million euros for violating his personal rights. Owed jointly by Schwan, his co-author and the publisher. But Kohl died shortly after the verdict was pronounced. The Federal Court of Justice must therefore now decide whether his widow will inherit the claim for compensation.

The higher regional court had decided in the lower instance: The claim for compensation for violation of general personal rights was not hereditary, which is why the claim expired with the death of Kohl. The compensation aims to provide satisfaction that will become less important with the death of the former chancellor. The court did not want to make an exception – for example because the life of the deceased had been grossly falsified by the publication.