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16.05.2017

Germany: Right to information for journalists about the financing of political blogs

by Ingo Beckendorf

A journalist can assert a right to information of the press against an incorporated company for general public services which are controlled by the public hand. That was decided by the first civil division of the German Federal Court, the Bundesgerichtshof (BGH), on 16 of March 2017 (judgment rn.: I ZR 13/16).

The claimant is a journalist. He wrote an article about the financing of the federal election campaign of the Social Democratic Party of Germany (Sozialdemokratische Partei Deutschlands, SPD) in 2013 and earlier state elections of the SPD in North-Rhine Westphalia. In this context, the newsman investigated whether interne tblogs, which helped the SPD in their election campaigns in 2010 and 2013 with supporting contributions and documents, were financed by public funds.

The defendant is an incorporated company which cares for public water and energy supply and disposal of wastewater. The majority of the shares is held by communes. The journalist had the suspicion that the company financed the internet blogs indirectly.

In his opinion, the corporation paid exaggerated donations for supposed efforts of other companies who worked for the SPD blogs. Therefore, the journalist requested information from the defendant about the contract terms of the companies, the provided efforts and the invoiced fees.

The district court in Essen rejected the suit (judgement from 14.11.13 rn.: 3 O 217/13). The higher regional court in Hamm ordered the defendant to provide information from 2009 on (judgement from 16.12.15, rn.: I-11 U 5/14). The judges pointed out the incorporated company would be obliged to offer the information due to the North-Rhine Westphalian press law (§ 4 Abs. 1 LPresseG NRW). With its revision, the company wanted to reach the complete dismissal of the action, whereas the claimant tried to get information about orders given to companies by the defendant before 2009 with his cross-appeal.

The BGH rejected the cross-appeal of the claimant. The revision of the defendant was successful only in so far as it was directed against a sentence to provide information since 2014.  

The federal justices classified the defendant as an informative paying authority in the sense of the North-Rhine Westphalian press law (§ 4 Abs. 1 LPresseG NRW). The press law concept of authority contains also legal persons of private law, which are dominated by the public hand and are installed to fulfill tasks like basic public services. A domination in this sense is to be supposed, usually, if more than half of the shares of an incorporated company of the legal person are in the ownership of the public hand.

This requirement is fulfilled in this case. Therefore, the defendant cannot profitably argue with a right to withhold information in the sense of the North-Rhine Westphalian press law (§ 4 Abs. 2 Nr. 3 LPresseG NRW). 

The journalist’s interest in being informed about the financing of the internet blogs outweighs the interest of the defendant and the affected service companies to keep the contract terms secret. As far as the proper use of public funds and the political activities of a municipally dominated company are concerned, there is a weighty public interest information.

However, the request for information must be limited to the period for which there is a legitimate interest in information for the press. In this case, that is the space of time from 2009 until 2013. 

Ingo Beckendorf works as freelance expert for the Institute of European Media Law (EMR) in Saarebruck/Brussels.


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The decision of the OLG Hamm is online.





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