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09.06.2016

Germany: Old reports in online-archives of newspapers may violate personality rights

by Sofie Luise Burger
The German Federal Court of Justice Bundesgerichtshof decided on 16 February 2016 (No. VI ZR 367/15) that reports which are not up to date anymore, but are still kept available in online-archives of newspapers, may violate personality rights. Whether it is valid to keep those reports available has to be decided by thoroughly balancing the personality rights of the affected person with the freedom of press and expression of the newspaper.

A professional football player who had been the subject of investigations for sexual abuse of nonresistant persons in the beginning of 2012. The investigation proceedings had been stayed a short time later for lack of sufficient evidence. The defendant is a daily newspaper who had reported about the investigation proceedings against the plaintiff in 6 reports altogether. The plaintiff was named in all of the reports. Four of them were illustrated with a picture of the plaintiff. Five of these reports were still available in the online-archive at the time of the decision. After the investigations had been stayed, the newspaper had amended the reports with a notice that the investigations had been stayed. The plaintiff requested that the newspaper no longer keeps any of the reports available and filed a law suit against the newspaper. The German Regional Court had sustained the plaintiff’s request, the Higher Regional Court had dismissed it.

The German Federal Court of Justice has now reversed the Higher Regional Court’s decision. According to the Federal Court, keeping the articles available was indisputably an interference with the plaintiff’s general personality rights: The Court stated that the reporting made the plaintiff’s possible misconduct public and therefore belittled the plaintiff in the eyes of the readers. Furthermore, the Court stated that this assessment cannot be affected by the fact that the articles had to be actively looked for by the reader in the online-archive of the newspaper.

Especially the fact that there had been investigations against the plaintiff for sexual abuse of nonresistant persons contained a high risk that the public equated the investigation with guilt and would judge the plaintiff accordingly, regardless of the fact that the proceedings had been terminated. According to the Court, this even applied if the articles were amended with a notice informing the reader about the termination of the proceedings.

Even though the matter did not affect the plaintiff’s sphere of privacy, since a criminal offence and the respective investigative proceedings could never be a matter of personal life, the articles still constituted a severe interference with the plaintiff’s right to personal honour and reputation according to art. 2 para. 1, art. 1 para. 1 German Constitution and art. 8 European Convention for Human Rights (ECHR).

The Court also stated that the plaintiff’s rights needed to be balanced with the defendant’s right to freedom of the media and expression according to art 5 para. 1 German Constitution as well as art. 10 ECHR. In doing so, it is of extreme importance whether the reporting about the suspicions regarding the plaintiff had been permissible in the first place. If the reporting was valid from the outset, keeping the reports available could consequently not be assessed differently.

The same applies for the pictures of the plaintiff if used to illustrate the articles. In this context, the Court also stated that the simple fact that legal proceedings had been initiated did not suffice as a factual basis for reporting about suspicions of criminal activity: the press has to ensure that a sufficient factual basis for their reports exists and the initiation of investigation proceedings do not automatically suffice. However, the previous courts had not conclusively ascertained whether the original reporting had been valid or not, which was why the Federal Court of Justice had referred the case back to the Higher Regional Court for further clarification.

Sofie Luise Burger is a research associate at the Institute of European Media Law (EMR) in Saarbrucken/ Brussels.


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The verdict of 16.02.2016 (No. VI ZR 367/15) is available in German here.





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