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13.03.2017

DE: Lawful seizure of press-products

Ingo Beckendorf

On 15 December 2016, the German Federal Court (Bundesgerichtshof, BGH) decided that, a publisher has no right to demand compensation for the seizure of a journal with reprinted Nazi-propaganda, when he himself contributed to the initiation of preliminary proceedings with his risky behaviour (case no.: III ZR 387/14).

Since January 2009, a press-corporation from the UK distributed the weekly journal "Zeitungszeugen“ ("newspaper-witness”) in Germany. The journal covered the time of Nazism in Germany and the press-landscape back then. Each issue of the journal contained two or three facsimile-reprints of newspapers from one selected day during the time of Nazism. These reprints were inserted in a four-sided cover, which explained shortly the historical background of the original newspapers. Large-formatted posters with Nazi-propaganda were also enclosed. On 23 January 2009, the prosecution started preliminary proceedings against the press-corporation due to the use of Nazi-symbols, which constitutes a criminal offence in Germany and due to the reprint of copyright protected work. In addition, the prosecutor confiscated the facsimile-reprints of the "Völkischer Beobachter“ (“the newspaper of the Nazi party”) from 1 March 1933 and the Nazi-propaganda poster “Reichstag in Flammen” (referring to the Reichstag fire). In the aftermath, about 12.000 complete copies of the issue from February 2009 were confiscated.

The press-corporation lodged a complaint against the seizure of its press-products with the Regional Court of Munich (LG Munich). On 20 April 2009, the LG Munich decided that, the use of Nazi-symbols did not constitute a criminal offence in the present case, because the purpose of the publications were the civic education. In addition, the copyright period had expired, because it was seventy years after the original release of the Nazi newspaper on 1 March 1933.

After the Court’s decision, the plaintiff claimed compensation of 2.634.677,52 Euro due to the seizure of the journals. The lower instances (LG Munich, 23. January 2013, case no.: 15 O 9627/11; OLG Munich, 27. November 2014, case no.: 1 U 781/13) awarded the compensation to the plaintiff.

However, the BGH decided that the plaintiff is not entitled to compensation due to the seizure of the press-products. The prerequisite for such a claim to compensation is the conduct of public officials in breach of their official duty. According to the Court, in the present case, the prosecutor and the examining magistrate did not act in breach of their official duty when ordering the seizure of the facsimile-reprints. With regard to the measures taken in investigation proceedings, the prosecutor and the examining magistrate have a certain margin of judgement. From their perspective, at the early stage of the investigation proceedings, it was reasonable to assume that the publications of the Nazi-symbols were in violation of German criminal law, because the facsimile-reprints could easily be separated from the newspapers cover, which included the historical treatise about the original newspaper and therefore could be easily used as Nazi-propaganda. In addition, the note of the publisher distancing himself from the content of the facsimile-reprints had been relatively small and could have easily been overlooked by the average consumers. Therefore, the confiscation order was not in breach of official duties and the plaintiff has no right to compensation.

Furthermore, the BGH decided that the plaintiff could neither base his claim for compensation on the expropriating nature of the confiscation of the newspapers. The plaintiff had made a deliberate decision to publish barely legal content. Therefore, he himself had contributed to the initiation of the investigation proceedings which led to the confiscation.

Ingo Beckendorf is a journalist and legal expert of the Institute of European Media Law (EMR) in Saarbrücken/Brüssel

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The verdict is available in German language.

 





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