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11.05.2017

DE: OLG Stuttgart confirms legitimacy of an identifying report related to the "Panama Papers"

by Tobias Raab

On 8 March 2017, the Higher Regional Court (Oberlandesgericht, OLG) of Stuttgart decided that an article about the so called "Panama Papers", which had been published by the German newspaper Süddeutsche Zeitung in 2016, was permissible (Case no. 4 U 166/16).

Panama Papers offshoreleaks.icij.org (Screenshot icij.org)

In the present case, the newspaper had published an article titled "The Phantom" on 5 April 2016, both in its print edition and on its website. The article did not only deal with the Panama Papers themselves - which are information and data on offshore companies that had been founded and organised by a law firm from Panama for numerous well-known clients in order to reduce their tax obligations in the countries of residence. It also reported on a private detective and undercover agent, who made an application for a preliminary injunction as a consequence of the article.

In the course of this case, the OLG Stuttgart especially had to decide whether the newspaper could have lost the right to publish the disputed information to the extent they had (possibly) been obtained in an illegal manner. The Court stated that at least one of the journalists participated in the possibly illegal activity of an anonymous informer by accepting the informer’s offer of not only providing already existing information, but also the latter’s willingness to find new information to be used consecutively while the story was being published.

The Court reached the conclusion that acquiring the information on the Panama Papers possibly in an illegal manner was neither to be seen as an offence committed to the detriment of the claimant, nor did the newspaper infringe his rights by publishing about him. The judgment makes clear that there might have been another finding if the concerned law firm itself had filed the lawsuit.

Even though the Court recognizes that there might have been an interference with the detective’s general right to protection of personality under Art. 1 para. 1, Art. 2 para. 1 of the German Basic Law (Grundgesetz, GG) and Art. 8 para. 1 European Convention on Human Rights (ECHR), he could not generally rely on this potential infringement as blocking any type of publishing information on him. The Court made clear that the claimant’s general right to protection of personality had to be balanced with the newspaper’s freedom of opinion under Art. 5 para. 1 GG and Art. 10 ECHR.

As there was an overriding public interest in creating transparency on the economic owners of those offshore companies, potential misuse such as tax fraud and money laundering, the newspaper’s freedom of opinion outweighed the detective‘s rights in the present case. The Court therefore decided that the publication was legally permitted as far as it dealt with the claimant’s passport and descriptions of his activities and practices.

On the other hand, the Court decided that there were some pieces of information the newspaper had illegally published. This concerned specifications on the claimant’s property and estate while also conveying the place of the estate and publishing the related abstract of the title. That type of information was not necessary for readers to understand that the claimant had been benefitting from an offshore company. The same applied to rumors about the claimant bribing police officers in Panama, as this was an allegation of fact which had not been made credible by the newspaper.

As no appeal was launched against the judgement of the OLG Stuttgart, the decision is final.

Tobias Raab is an Attorney at Law at the German law firm Stopp Pick & Kallenborn and publishes abstracts for the Institute of European Media Law (EMR), Saarbrücken/Brussels.


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The Higher Regional Court’s press release can be accessed here.





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