Germany: Federal Supreme Court delivers judgment on claimforrectification in case of initially admissible articles on suspicion

Tobias Raab, Cristina Bachmeier

The German Federal Supreme Court (BGH) ruled in its decision of 18 November 2014 that, while affected people do not have a right on rectification after the suspicions have been cleared out, they can demand a postscript, making clear that the initially admissible suspicion had turned out to be wrong (case no. VI ZR 76/14).

In the present case, the defendant reported on the plaintiff, who worked as an in-house lawyer at a bank at that time. In one issue of her newsmagazine, the defendant published an article, which claimed that the bank, the plaintiff worked for, had been under investigation for trading high risk “rubbish” assets with very high losses. According to the article, these events led to the bank having to be saved from collapsing via tax funds in the midst of the finance crisis. In this article, the defendant published statements of a former security advisor of the bank which connected the plaintiff to instituted criminal proceedings against him.

The article evoked the suspicion that the plaintiff had ordered the security advisor to keep a former board member of the bank under surveillance. In the end, the advisor took his accusations back and the proceedings were abandoned. After that, the former in-house lawyer sued the defendant for rectification. Both courts in Hamburg (Landgericht – LG: case no. 324 O 628/10 from 20 April 2012 and Oberlandesgericht – OLG: case no. 7 U 44/12 from 28 January 2014) granted the lawsuit. Both instances decided the published suspicion had been unjustified.

In appeal proceedings, the BGH reversed the judgement and remanded the case back to the OLG.

At first, the BGH took into account the fact that the journal had shown an adequate amount of proving facts. Therefore, the publication of the article had initially been admissible. The judges also saw the great public interest in publishing the report in the context of the economic crisis, which justified the article.

Weighing up the plaintiff’s personality rights (as enshrined in article 2 I in conjunction with article 1 I of the German Constitution and article 8 of the European Convention on Human Rights) against the defendant’s freedom of press, speech and expression (as enshrined in article 5 I of the German Constitution and in article 10 of the European Convention on Human Rights), the Court decided that the defendant could not be sentenced after it had published an initially admissible report.

For those reasons the plaintiff could not demand the defendant to publish a rectification of the original article, stating she would not uphold the suspicion. The plaintiff, however, could demand a postscript, making clear that the initially admissible publication of the suspicion had turned out to be wrong and would not be kept up anymore.

Tobias Raab works as a scientific researcher at the Institute of European Media Law (EMR), Saarbrücken.

Cristina Bachmeier, LL.M., is a research associate at the Institute of European Media Law (EMR), Saarbrücken/Brüssel.

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The BGH’s decision is available in German here.