Dr. Diana Grün
Partner - Prinz Rechtsanwälte PartG mbB
Defamation, Privacy and Data Protection
Negative reports and statements in the press and internet can damage reputation and have serious consequences. However, not every negative report, statement or evaluation can be attacked as a violation of law.
The guiding principle is: Untrue factual statements are illegal. Expression of opinion is permissible up to the limit of “abusive criticism”.
There is no justifiable reason for the publication of untrue factual statements. They are usually a violation of rights.
In contrast expressions of opinion enjoy fundamental constitutional protection and are thus generally admissible.
1. Civil Law
(a) Injunctive relief to stop an illegal publication
The injunctive relief (i.e., an interim injunction), which is obtained by a court’s cease and desist order, may stop an unlawful publication that already took place or is imminent. An injunction is of specific practical importance and can provide fast and effective protection from imminent dam-age. The injunctive relief may address both unlawful texts and impermissible photos or film. It is used in the event of written reporting not only to protect a person against false allegations of facts but – in cases of privacy invasion – also against the expression of opinion. The court’s cease and desist order prohibits the publication of illegal content by a media company.
The interim injunction can only be used as an instrument against the media company that has already published or is about to publish unlawful content. A reference to a previously granted interim injunction can prevent other media from subsequent reporting. Equally, it can be used to demonstrate to other media that the initial publication was untrue. Once an interim injunction has been granted, it may be used to correct the untrue reporting in other media. Because of the urgent enforcement in the German injunctive process, the positive effects are quickly obtained.
(b) Counterstatement to correct untrue statements
The right of reply provides an opportunity to contradict a report published in the media. A counterstatement is a statement of a plaintiff regarding an already published and untrue article.
An example of such counterstatement:
“On January 7, 2011, an allegation was published on Page 27 of newspaper X that we accepted bribes from Y. This allegation is untrue. We did not receive any payments from Y.”
Replies are only permitted to react to facts, but cannot be used to react to an opinion.
The following counterstatement is therefore inconceivable and legally impossible:
“On January 7, 2011, it was published on Page 27 of newspaper X that our football team had played badly on Saturday. This is not correct. The team played well.”
It is sometimes difficult to determine whether a statement is an allegation of fact or an expression of opinion. A statement is only considered an allegation of fact if its accuracy can be proven by means of evidence; however, if a statement has the character of a comment or an opinion it is considered an expression of opinion.
The counterstatement is prepared by the plaintiff or his attorney and sent to the opposing party with the request for immediate publication. The counterstatement has to be published “without delay,” i.e., usually within a period of 10 days of becoming aware of the violating statement. If the opposing party does not publish the requested counterstatement voluntarily, the publication can be enforced by court order by the competent Regional Court (“Landgericht”), provided the formalities are met. Place of jurisdiction is usually the Court where the media company is based.
A rectification, i. e. a withdrawal or a correction, is the acknowledgment by a media company that the published article contained false statement of facts.
“On January 7, 2011, we published on Page 27 that person A accepted bribes from person B. This allegation is untrue. A did not receive any payments from B.”
A claim for correction is only valid in cases of false allegations of facts, it is not possible in cases of expression of opinion.
The claim for correction can only be asserted via main proceedings, not in interim injunction proceedings. The applicant bears the burden to produce evidence and the onus of proof that the allegation of facts are false.
In practice these procedures are rare as they cannot be asserted in interim proceedings, but only in main proceedings. A claim for correction therefore is not the right instrument for a fast solution of a problem.
(d) Damages for pain and suffering, damages and enrichment
The claim for damages is aimed to replace a loss that actually occurred. A loss can consist of somebody losing his employment due to unlawful reporting, thus suffering from loss of income. Similarly, expenses for the prosecution and lawyer’s fees are possibly recoverable as damages.
In the event of a commercial exploitation of personality rights, for instance for unapproved image advertising using the image of a well-known athlete, the aggrieved party may calculate the damage three fold: One may assert the precise damage including the loss of profit or the profit gained by the newspaper by avoiding royalty payment. In a decision in 2006, the Court of Munich decided on the basis of a license analogy and granted the former German tennis player Boris Becker damages of 1.2 million EUR for unlawful depiction of his image in connection with an advertisement.
Pecuniary compensation claims (“compensation for personal suffering”) are used to compensate intangible damages. A claim for pecuniary compensation can be brought in cases of gross violations of personal rights if the damage cannot be otherwise compensated in a satisfactory manner. The pecuniary compensation is based on the reasoning that – without such a claim – violations of human dignity and honor often remain unsanctioned with the result that the legal protection of the personality would suffer. The important aspects are satisfaction and prevention. Whether a gross violation of personal rights occurred depends on the circumstances, such as affected private spheres, long-term effects of the damage, motive of the tortfeasor as well as the degree of culpability. Recently awarded amounts – depending on the severity of infringement – range between approximately 5,000 EUR and 400,000 EUR.
A claim on account of unjust enrichment may exist if an image, a name or other personality rights (such as a person’s voice) are commercially utilized without permission. To name an example, a famous goal keeper was granted compensation, because a photo showing his back standing in the goal, was used for a television advertisement.
2. Criminal law
Depending on the circumstances of the case, illegal statements may also have criminal consequences. There are a number of offences in the German Criminal Code that make serious illegal statements punishable. Examples are § 185 and others of German criminal code (insult, slander, defamation etc.), but also the incitement of the people (§ 130 German criminal code). However, criminal procedures are rarely recommended. Investigation proceedings usually take too long and rarely end in a conviction.
Privacy is protected in Germany by Article 2.1.of the German Constitution:
“Everyone has the right to the free development of his personality, insofar as he does not violate the rights of others and does not violate the constitutional order or the moral law.”
This must be seen in conjunction with Article 1.1 of the German Constitution:
“Human dignity is inviolable. It is the duty of all state authorities to respect and protect it.”
The basic idea is that it should be possible for people to possess a personal sphere in which they can behave freely and informally without having to fear that third parties can observe or intercept them.
The weakest level of protection is in the public sphere, in which the person consciously moves or expresses himself. Example: statements in a publicly accessible YouTube video. Similarly little protection exists within the social sphere, which describes the area of professional, political or voluntary activity.
The level of protection is already significantly higher in the private sphere, which describes private life (at home), but also individual facts or events that typically have a private character. Interventions are generally inadmissible and must undergo a strict proportionality test. Only in exceptional cases can justification by important goods of general interest be considered.
The highest level of protection exists in the sphere of intimacy, which includes, for example, the inner emotional world or the sexual sphere, but also the core area of honour. Interventions in the intimacy sphere are always impermissible.
Legal remedies for invasion of privacy are injunctive relief and damages. In regards to criminal procedures § 201a German criminal code (injury of the most personal sphere of life by pictorial photographs) could be relevant.
Due to the increasing availability of mobile phone cameras, celebrities in particular are exposed to the increased risk of being photographed unexpectedly and unnoticed for publication purposes in any situation.
Publication of paparazzi pictures could also constitute untrue statements of facts in cases where they are a photomontage. The publication of paparazzi photos could be an invasion of privacy as well. It depends in which context the photos are taken.
Legal remedies for paparazzi pictures are injunctive relief and damages. In regards to criminal procedures § 201a German criminal code (injury of the most personal sphere of life by pictorial photographs) could also be relevant.
Usually we recommend preliminary injunction proceedings as they are very quick in Germany. You will usually get a judgement within 2 weeks after filing. Preliminary injunction proceedings are suitable for injunctive relief and counterstatement claims. The limitation period for injunction proceedings is up to 5 weeks (depending on the court) after publication or knowledge of the infringing publication.
The limitation period in regards to main proceedings is generally three years after the end of the calendar year in which the claim arose and the party concerned became aware of the infringement. Without knowledge or grossly negligent ignorance, the limitation period is 10 years from the date on which the claim arose or 30 years from the infringing event, whichever is earlier.
If it is in dispute whether a statement is true or untrue, the question arises as to who has to bear the burden of proof. In the case of injunctive relief, rectification or claims for damages the bur-den of proof for the untruth lies with the applicant. The burden of proof rules do not apply to the counterstatement claim (this claim can only be pursued in the injunction proceedings). As already said while the counterstatement must not be “obviously untrue,” the falsehood of the violating statement does not have to be proven or substantiated.
Germany does not have jury trials in civil proceedings. The judges are professional judges.
The plaintiff is not required to appear in court in preliminary injunction proceedings. The plaintiff is also not subject to cross examination or discovery. There may be an exception to these rules in certain rare cases.
The losing party has to pay the costs of the proceedings according to the lawyers fee act in Germany.
Prinz Rechtsanwälte PartG mbB
The material in this Guide is for general information only and does not constitute legal advice.
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