German businessman loses appeal against "New York Times"

By Emil Weber

A German national and international businessman, Mr. Boris Fuchsmann, lost his application at the European Court of Human Rights (ECtHR) on October 19th concerning the references to him in a wider article published by the "The New York Times" nearly sixteen years ago.

The European Court of Human Rights (ECtHR) in Strasbourg The European Court of Human Rights (ECtHR) in Strasbourg (photo: Nicoleon, Cour européenne des droits de l'homme, CC BY-SA 4.0)

The prestigious US newspaper reported in summer 2001 on police investigations in New York against a media company under suspicion of corrupt and unlawful payments for a broadcasting licence in Ukraine. According to the article, in the course of the inquiry, the representatives of the company met with wealthy and influential business owners involved in the media, such as Mr. Fuchsmann. Referring to a Federal Bureau of Investigations (F.B.I.) report, he was said to have close ties to “Russian organised crime” and was described as “a gold smuggler and embezzler”.

Mr. Fuchsmann’s application for an injunction had twice been considered inadmissible by Düsseldorf courts, since the newspaper was not distributed in Germany. The Federal Court of Justice later returned the case to the Appeal Court to consider the online version of the article, which was accessible from Germany. In summer 2011, the Court of Appeal decided that the newspaper “complied with the required journalistic duty of care and that the reporting had relied on sources and background information, which the journalist could reasonably consider reliable”. However it ordered the newspaper to remove a sentence from the online version of article, concerning an alleged USA entry ban for Mr. Fuchsmann, since he had proved that he had recently travelled there without restriction.

Mr. Fuchsmann then appealed at the European Court of Human Rights arguing that “the German courts had failed to protect him and his reputation”. He said the article was still accessible online despite the fact that it lacked a factual basis, since it referred to an investigative “internal interim report” consisting of “mere speculations”. He also argued that there was no public interest in mentioning his name since “no investigative proceedings had been initiated” against him, and that in this case he had a right to be forgotten.

The ECtHR said that the German courts conducted a fair balance of Mr. Fuchsmann’s right to the protection of his private life and "The New York Times"' right to freedom of expression.

According to the court, there was a public interest in reporting on the topic and in keeping the report in an online archive. “The Court […] notes the substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free”, the judgement read.

The article was free from polemic statements

The ECtHR agreed with the domestic courts that there was a public interest in Mr. Fuchsmann as “a German businessman internationally active in the media sector”, as in other cases where prestigious entrepreneurs were held to be public figures due to their position in society.

It held there was sufficient factual basis behind the reporting. “The main source […] was an internal FBI report and not an officially published report nor a public statement to the press by a public official”, the court said. “However, the Court also notes that the Court of Appeal examined the factual foundation for the statements at issue in detail and concluded that the information in the FBI report was corroborated by reports of several other law-enforcement agencies, as well as submissions by the applicant himself, […] that the journalist had based his articles on sufficiently credible sources”.

“Only with regard to the statement that the applicant had been barred from entering the United States did the Court of Appeal find that there was insufficient factual basis and issued a prohibitive injunction”, the judgement read.

Mr. Fuchsmann was approached by the newspaper, but he had not commented prior to the publication of the article. 

The ECtHR said the “article was free from polemic statements and insinuations”, that it made it clear that “only insights from reports by the FBI and other law-enforcement authorities were being reported” and the information “mainly concerned the applicant’s professional life and did not divulge any intimate private details”.

The court agreed with the domestic justice that the newspaper “had fully complied” with its “journalistic duties and responsibilities”.

Case of Fuchsmann v. Germany, application no. 71233/13. 19 October 2017

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Source information: This article was originally published by the European Centre for Press and Media Freedom –