DE: Republishing is a less serious infringement of fundamental rights than first publication

by Christina Etteldorf
The German Federal Constitution Court (FCC) decided on July 28 2016 (1 BvR 335/14) that reporting on information, which is already known to a large audience, violates the general right of personality less than a new publication about the same theme. Thereby the court established new criteria, which will have meaning for the balancing between freedom of the press and protection of privacy in the future.

The case was about the daughters of German television presenter Günther Jauch who had brought proceedings against Burda publisher because of an article published by the Burda publishing house belonging magazine “Viel Spaß” (“Have Fun”). Jauch and his wife Thea had adopted two girls from a Siberian orphanage in the years 1997 and 2000. From 2000 until 2010 many media had reported about this adoption, explicitly mentioning names and ages of the two underage girls. In 2011 the journal “Viel Spaß” reported on public appearances of Jauch and mentioned in one sentence the adoption, the names and current ages of the girls. Unsuccessfully the daughters filed for an injunction before the competent national courts against the newspaper. Therefore, they raised complaints at the FCC, which were again unsuccessful.

The court decided that the plaintiffs had to accept the mentioning of their names and ages in the context of reporting on the adoption because this information had already been published in articles in the past without having been challenged by the plaintiffs.

Indeed, the FCC determined that the constitutionally guaranteed fundamental right to informational self-determination (Art. 2 sec. 1 in conjunction with Art. 1 sec. 1 GG) safeguarded the authority of the individual to decide in principle independently about when and within what limits real-world personal fact situations are allowed to be revealed and in this context especially underage children of celebrity parents had to be protected in regard to their personality development. However, in the view of the judges under these conditions the interest or reporting in the journal article as a means of using freedom of the press had to be weighed more strongly. The court based this decision on the fact that the information had been made available to a large audience by former articles and could still be retrieved easily on Internet sources. Therefore the republishing needs to be considered as having a lesser significance as far as the violation of the general right of personality is concerned. It counted to the disadvantage of the two complainants that they had not proceeded against publications in the years before.

Christina Etteldorf is legal trainee at the Higher Regional Court of Saarland