German Authors and Genres

Maxim Biller’s novel Esra has occupied the German courts ever since it was first published. In October 2007, the Federal Constitutional Court, ruling as the court of last appeal, decided that the novel should remain banned in a judgement that gave the right to privacy precedence over the freedom of art.

What would have happened if Maxim Biller had chosen not to make it abundantly clear that the characters in his novel were based on real, living people? What would have happened if he had not given his characters unmistakeable attributes, had not introduced one as the Turkish holder of the Alternative Nobel Prize and another as the recipient of the German Federal Film Prize in 1989?

A book in the dock

Esra relates the breakdown of the relationship between Adam, a writer, and his Turkish girlfriend. The novel was published by Kiepenheuer & Witsch at the end of February 2003. Shortly afterwards, a woman who had once been Biller’s partner started legal proceedings against the book in a joint action with her mother – and since then it has been a matter for the courts.

In March 2003, Munich Regional Court prohibited the sale of the novel because it placed highly intimate details of the plaintiffs’ private lives into the public domain in an unacceptable fashion. Four months later, a version appeared with marked omissions, which was banned a little later by Munich Regional Court, and then by Munich Higher Regional Court. The publishing company invoked the freedom of art as its defence and appealed several times. After the Federal Court of Justice had rejected an appeal in the summer of 2005, Kiepenheuer & Witsch lodged a constitutional complaint. On 12 October 2007, the Federal Constitutional Court in Karlsruhe confirmed the previous judgements on the Esra case. In consequence, the novel remains banned.

Writing at the limits

It appears as if Maxim Biller very consciously wanted to use Esra to test out the limits of the freedom of art. This is suggested not least by the fact that his text itself raises the issue of these limits again and again, and even anticipates the accusations that Biller’s publishers were to fight against for four years.

“From the beginning, Esra had told me I should never write anything about her,” it says in the novel. The book also includes a passage in which Esra tells the first-person narrator plainly that she does not want to show him her breasts in order to read about exactly this somewhere at a later date, but because, “I want to be private with you.”

However, the text of the novel also reflects the author’s own position: “It was not easy for me to live with Esra’s fear of the written word. I tried to put myself in her shoes and understand where her sensitivity came from. She was probably like most people: She did not want to see how someone else saw her.” And he sets out his conscious decision to narrate the story: “I may not be the kind of person who is constantly making notes and planning how every second of his life could be used for future stories and novels – all the same, I don’t want anyone telling me what I am allowed to write about and what is not allowed. That would be as if you were to take away the air from me.”

Protecting the right to privacy

The Esra case is the first decision by Germany’s highest court to prohibit a book in the Federal Republic of Germany since 1971. At that time, the judges of the Federal Constitutional Court banned the publication of Klaus Mann’s roman à clef Mephisto because they believed it infringed Gustaf Gründgen’s right to privacy. The action had been brought by the heirs of the late actor and theatre manager, who was recognisable in Mann’s novel as the Nazi careerist Hendrik Höfgen.

The judgement against Esra was passed by the closest possible margin of five votes to three. The declaratory part of the ruling stated that the right to privacy had been infringed: “This happens in particular as a result of the precise depiction of the most intimate details of a woman who is clearly identifiable as an actual intimate partner of the author. This constitutes an infringement of her intimate sphere and therefore an area of the right to privacy that is integral to the core of human dignity.”

Progress for the freedom of art?

The outvoted judges criticised the decision. They felt that the formula “the more intimate sphere, the more it is necessary to disguise” would ultimately lead to a “tabooisation of the sexual”, which would restrict the freedom of art in an unacceptable way.

In this respect, it is possible to discern some progress as far as the freedom of art is concerned in comparison to the Mephisto judgement. While the daughter’s action was judged to be justified, the Court rejected the mother’s application for an injunction. The fact that she felt she was depicted negatively in the novel – as a domineering, mentally ill alcoholic – was not sufficient for the book to be banned. For even if real people were identifiable behind its characters, a novel was “primarily to be regarded as a work of fiction.”

The fiction of the story

“Esra! Esra… It is a story. It is all just made up.” With these words, Adam seeks to explain the difference between fiction and reality to his girlfriend in the novel. Esra does not find this very convincing, if only because Adam contradicts himself on this point: “You didn’t say that before.”

In all likelihood, it would only have required a few changes and Maxim Biller’s second novel would have been available in bookshops today. And if he had known the consequences that awaited him, he would probably have taken a different approach. However, the 47-year-old author responded very robustly to such speculations at the end of a reading in the summer of 2007: “If my aunt had balls, she would be my uncle.”