Admissibility of statements in reporting (Germany)

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The admissibility of statements in the reporting in the mass media is a criterion for possible claims due to the violation of the personal rights of persons who are the subject of the reporting or are related to it. The personal right is constitutionally protected in the German legal system by Art. 2 Paragraph 1 and Art. 1 Paragraph 1 of the Basic Law (GG). The restriction of this right therefore requires justification, which can result in particular from the public function of the media, whose task it is to provide the general public with information. This function also has constitutional protection through Article 5 (1) of the Basic Law, which guarantees freedom of expression and freedom of the press .

The activity of the press therefore moves in a field of tension between the public interest in information and private protection of personal rights. If the rights of a data subject outweigh this, the reporting is inadmissible. Public interest in the information communicated tends to be more likely on political issues than on those that primarily satisfy curiosity, sensationalism, and entertainment needs. The journalistic duty of care required here primarily includes thorough self-research before publication. The requirements are all the higher, the more the publication encroaches on the private life of specific people.

Conflicting interests

Legal position of the rapporteur

The fundamental communication rights protected by Art. 5 GG form an essential basis for the activities of the media .

Freedom of expression, Art. 5 Paragraph 1 GG

(1) Everyone has the right to freely express and disseminate his or her opinion in words, writing and images and to obtain information from generally accessible sources without hindrance. Freedom of the press and freedom of reporting through radio and film are guaranteed. A censorship does not take place.

(2) These rights are limited in the provisions of general laws, the statutory provisions for the protection of young people and in the right to personal honor.

The fundamental right of freedom of expression guaranteed by Art. 5, Paragraph 1 of the Basic Law represents a basis of the democratic community, which is reflected in its high priority in the case law. Freedom of expression protects statements that contain a value judgment. Opinions must be distinguished from factual assertions which, in the absence of a value judgment, do not fall under the protection of freedom of expression. However, they are protected by this basic right insofar as they form the basis of an expression of opinion or promote the formation of an opinion by third parties. On the other hand, proven or deliberately untrue factual assertions cannot be protected, as they cannot make a contribution to public opinion formation worth protecting.

According to Article 5, Paragraph 2 of the Basic Law, freedom of expression can be restricted by general laws . These are norms that are not directed against specific opinions and serve to protect a legal interest that has a similar meaning to freedom of expression. The criminal and civil law provisions for the protection of personal honor and the protection of minors are of particular importance for the reporting .

Freedom of expression, like most other fundamental rights, is essentially a civil defense against the state. They protect him from interference by sovereign authority. However, they also apply in disputes between private individuals, in particular by shaping the interpretation of indefinite legal terms . This effect of the fundamental rights, referred to as indirect third-party effect, means that civil courts must also take into account the content and significance of freedom of expression in the context of legal proceedings between private individuals.

Freedom of the press, radio and film, Art. 5 Paragraph 1 GG

Freedom of the press guarantees the independence of the press from the public sector. This protection extends in particular to the production and distribution of press products. In contrast to freedom of expression, the fundamental right relates less to the content of a statement than to the organization of press activities. Numerous press privileges are based on the freedom of the press, such as the right to information against authorities, the right to short reports and special criminal procedural provisions, such as confiscation prohibitions and the right to refuse to testify .

The freedom of broadcasting protects the activity of broadcasting and guarantees the existence of a plural broadcasting order. It obliges the state to create the technical prerequisites for free broadcasting. Furthermore, the state should ensure that the actual diversity of opinion is adequately represented on broadcasting.

The fundamental right of film freedom protects the production and distribution of films. Since films as works of art are regularly subject to the freedom of art protected by Art. 5 Paragraph 3 GG , which guarantees more extensive protection than film freedom, this fundamental right is of little practical relevance.

Freedom of the press, radio and film are subject to the same restrictions as freedom of expression. They can therefore be restricted by general laws . According to Art. 5 Paragraph 1 Clause 3 of the Basic Law, censorship is also prohibited. This includes measures that oblige a work to be approved before publication. This is known as pre-censorship .

Artistic freedom, Art. 5 Paragraph 3 Sentence 1 GG

(3) Art and science, research and teaching are free.

The freedom of art guaranteed by Art. 5, Paragraph 3, Clause 1 of the Basic Law protects the freedom of art. Art is understood to mean expressions of free creative design. Artistic freedom is distinguished from freedom of opinion and freedom of the press in that it can only be restricted by conflicting constitutional law. In contrast to the rights of Article 5 (1) of the Basic Law, a restriction by simple law can only be considered if this simple law serves to protect a constitutional asset, such as the general right of personality. The freedom of art thus offers the artist a higher level of protection.

The art forms novel, satire and caricature are important for reporting . It is in their nature that they contain exaggerations, alienations and exaggerations. Therefore, these forms of utterance are treated particularly generously by case law. When assessing an artistic statement, it distinguishes between the core statement contained in the representation, which is assessed using the regular criteria for utterances, and its artistic clothing, which is only in exceptional cases inadmissible as a direct expression of artistic freedom. This was assumed by the case law, for example, in a case in which a politician was portrayed as a copulating pig.

Legal positions of those affected by a report

Reporting on a person affects their general personal rights . The Federal Constitutional Court developed this right on the basis of Art. 2 Paragraph 1 GG and Art. 1 Paragraph 1 GG. It protects the individual's right to respect for his or her personality. Expressions of this right are, for example, self-determination about the representation of one's own person in public and the protection of the highly personal area of ​​life. Both positions are compromised by reporting, in that a person is dragged into the media public against their will or by their reputation being attacked by the nature and content of the reporting.

Assessment of the legality of an encroachment on personal rights

In contrast to injuries to body or property, encroachments on general personal rights are not fundamentally illegal. According to Article 2, Paragraph 1 of the Basic Law, personal rights can be restricted by conflicting rights of third parties. In the context of the legality of reporting, the basic communication rights of Art. 5 GG are of particular importance. In order to determine which right is to be given priority in a specific case, the conflicting positions must be weighed against each other on the basis of the circumstances of the individual case. To this end, it is first determined which weight is to be assigned to the individual items.

For the admissibility of statements, the great importance of the fundamental rights of communication is at issue: since the general public is dependent on the provision of information, the admissibility of the statement is presumed if it relates to a matter of general interest, such as political processes. However, this does not apply to abusive criticism , i.e. statements that serve only to disparage another. Such statements do not make any relevant contribution to the formation of public opinion, which is why they cannot justify an interference with general personal rights. The same applies to attacks on human dignity , which is inviolable according to Art. 1 Paragraph 1 GG. If a statement violates the dignity of another, it is always illegal. Difficulties in demarcation arise in the case of statements that can be interpreted as defamatory criticism as well as protected expression of opinion. For example, the statement that soldiers are murderers can be interpreted both as a charge of serious crimes and as a sharply formulated criticism of the soldier's profession. In order to protect the freedom of expression as effectively as possible, the Federal Constitutional Court demands that, in the case of such ambiguous statements, the interpretation variant that enjoys the greatest possible protection under fundamental rights should be assumed.

Photo reporting

General prohibition, § 22 KUG

Images may only be distributed or publicly displayed with the consent of the person depicted. In case of doubt, consent is deemed to have been given if the person depicted has received remuneration for being depicted. After the death of the person depicted, the consent of the depicted's relatives is required for up to 10 years. Relatives within the meaning of this law are the surviving spouse or life partner and the children of the person depicted and, if neither a spouse or life partner nor children are present, the parents of the person depicted.

The admissibility requirements for image reporting are regulated in the Art Copyright Act (KUG). According to section 22 (1) sentence 1 of the KUG, the publication or display of images of other people without their consent in the specific form of use is fundamentally prohibited. This prohibition is based on the fact that images of people are particularly suitable for violating other people's personal rights. Any representation that clearly depicts another person is considered a portrait. If a person is represented by a double , it is a use of someone else's image that requires approval according to Section 22 KUG if the representation looks deceptively similar.

Exceptions to the prohibition, Section 23 (1) KUG

(1) Without the consent required under Section 22, the following may be distributed and displayed:

1. Portraits from the realm of contemporary history;
2. Pictures in which the people appear only as accessories next to a landscape or other location;
3. Pictures of meetings, elevators and similar events in which the persons depicted took part;
4. Portraits that are not made to order, provided that the dissemination or exhibition serves a greater interest in art.

Section 23 (1) of the KUG contains four exceptions to this prohibition . The most important in practice is Section 23 (1) No. 1 KUG. According to this, publication or display is permitted if the portrait comes from the field of contemporary history. This includes events or people who are of general public interest. With regard to persons, the jurisprudence distinguished for a long time between absolute and relative persons of contemporary history . Individuals in whom the public had a long-lasting general interest were considered absolute figures in contemporary history. Such persons were always allowed to be depicted in accordance with Section 23 (1) No. 1 KUG, provided they were in public. In contrast, relative persons in contemporary history were persons who were only of general interest in relation to a specific event. Such persons were only allowed to be depicted in connection with this event in accordance with Section 23 (1) No. 1 KUG.

The European Court of Human Rights (ECHR) countered this differentiation with its judgment of June 24, 2006 by accusing German case law of inadequate protection of personality: the blanket withdrawal of the personal rights of absolute persons in contemporary history is inappropriate, since not every image represents a legitimate public interest serve. As a result, German jurisprudence abandoned its earlier schematization and since then has weighed up the individual rights of the person concerned and the public interest in the presentation in the concrete situation for each figure.

If a person is depicted in a permissible manner in accordance with Section 23 Paragraph 1 Number 1 KUG, this also extends to accompanying persons who are also depicted if there is a public interest in the fact that they are related to the historical event. One of these is the illness of a politician. In contrast, there is usually no legitimate interest in the vacation of a celebrity.

Withdrawal exception, Section 23 (2) KUG

(2) The authorization does not, however, extend to dissemination and display that violates a legitimate interest of the person depicted or, if he has died, his relatives.

From the exceptional justification under Section 23 (1) KUG, Section 23 (2) KUG again makes an exception. According to this exception, image reporting justified in accordance with Section 23 (1) of the KUG is not permitted if it violates a legitimate interest of the person shown. Such an interest exists, for example, if the person depicted was depicted in a place that serves as a private retreat. The protection of children in the picture can also represent a legitimate interest that opposes publication. The misappropriation of legal recordings to catch the eye for a verbal report that does not have the picture as its subject may also be inadmissible under Section 23 (2) of the KUG. Finally, a publication that does not serve informational, but exclusively commercial purposes can fail due to Section 23 (2) KUG, since the decision on the economic exploitation of one's own image is incumbent on the person depicted. This is usually the case when the advertising gives the impression that the person shown identifies himself with the product. In contrast, it is usually permissible to use someone else's image for both advertising and satirical purposes.

Further instructions

Another exception to the prohibition of Section 22 Sentence 1 of the KUG is contained in Section 24 of the KUG. According to this, authorities can publish, distribute or publicly display images without the consent of the person depicted if this is necessary for the administration of justice and public safety.

The Courts Constitution Act (GVG) contains a special provision on reporting : According to its Section 169 sentence 2, the making of sound, television and film recordings during the court hearing is not permitted. This ban is intended to ensure that the negotiation is not disrupted and that the parties involved are not exposed to a large audience against their will. This prohibition is supplemented by Section 176 of the GVG, which assigns the presiding judge the authority to police the session and hereby gives him the right to decide on the activities of media representatives in connection with the session. Section 176 of the GVG can prohibit making recordings before or after the general meeting or during breaks in negotiations. Such a prohibition presupposes that the media activity has a disruptive effect on the negotiation. This is a discretionary decision by the court. If a judge therefore wants to prohibit the making of recordings in the context of the hearing, he must weigh up the impairment of the hearing and the personal rights of the person concerned with the basic rights of the press in the context of the dutiful exercise of discretion. In this regard, the Federal Constitutional Court assumes that the press must generally be able to report at least during a section on the sidelines of the main hearing. For example, it was considered disproportionate and therefore inadmissible that the court completely prohibited the making of film recordings in the criminal proceedings against Erich Honecker .

Word reporting

In contrast to image reporting, the admissibility requirements for verbal reporting are not explicitly regulated by law. An extreme limit of admissibility is standardized by criminal offenses of honor as well as the offense of jeopardizing credit according to Section 824 of the Civil Code . Therefore, their legality is based to a greater extent on the requirements of case law, the focus of which is the balancing of the legal interests of the person concerned and the reporter.

Weighing up the legal interests concerned

The starting point for the weighing of interests is to determine how serious the impairment of the personal rights of the person affected by a report is. In order to systematize the assessment of such interventions, jurisprudence developed levels of personal rights that are worthy of protection to varying degrees: They differentiate between social, private and intimate spheres . The former covers the area of ​​life that takes place in public. In contrast, the private sphere covers the private area of ​​life that is shielded from the outside world. After all, the most personal area of ​​life is part of the intimate sphere. The assignment of an intervention to one of these spheres serves to determine the requirements for the legality of the intervention. An intervention in the social sphere can usually be justified by a legitimate interest. Stricter requirements apply to invasions of privacy. An impairment of the intimate sphere is ultimately not justifiable, since this is closely related to the inviolable human dignity according to Art. 1 Paragraph 1 GG.

The protection that the general right of personality enjoys depends, in addition to the sphere of personality concerned, heavily on the respective individual case. Children, for example, are subject to increased protection, as their personal development can be particularly severely impaired by reporting. Those who put themselves in the public eye through their behavior or their own statements, on the other hand, are more likely to accept critical media coverage of their behavior than a person who has not yet appeared publicly. This applies in particular to political disputes, in which even sharp or exaggerated statements may still be permissible, which in a different environment would already exceed the limit of abusive criticism. While against this background the case law initially granted people in public life a comparatively low level of protection of their social and privacy rights, it expanded this protection after the judgment of the European Court of Human Rights on June 24, 2006. In the case of public figures, it must therefore be examined whether the reporting serves a legitimate interest in information. This is regularly the case when reporting relates to an issue that is in the public interest.

There is typically a public interest in processes that affect society, such as politics and economics. There is also often a legitimate interest in information about serious crimes. However, the admissibility of reporting on criminal offenses is restricted by the principle of social rehabilitation , which is an expression of the general right of personality: a criminal should be able to participate in social life again after serving his sentence. This is only possible if he does not have to fear that he will be confronted with his previous act through the media. For this reason, they are only allowed to report on past crimes if there is sufficient public interest in them. For the assessment of this interest, in addition to the severity, the topicality of the crime is important. If an old report about a criminal offense is made available in an online archive , the case law regards this as fundamentally permissible, since a recognizably old report has a less widespread effect than a current one. Therefore, the interest of the press in the long-term archiving of their reports outweighs the personal rights of the person concerned.

Suspicion reporting

purpose

If an issue is reported whose truth has not been proven, it is a suspicion report. This is important, for example, when reporting on investigation or criminal proceedings. In the starting point, the person who reports on a fact bears the risk that the report is not true. If he cannot prove their truth in a legal dispute with the person being reported on, he runs the risk of being obliged to refrain from reporting and to pay damages. Reporting on ongoing criminal proceedings with an uncertain outcome can represent a serious violation of personal rights: There is a risk of considerable damage to reputation because the person concerned is already viewed in public as the perpetrator during the proceedings.

However, the function of the press is to stimulate and promote the public process of forming opinions through reporting. In order to fulfill this public mandate, the press must have the opportunity to report on facts even when the facts are dubious. This conflict between the personal rights of the person concerned and the function of the press is resolved by the principles of suspicion reporting developed by case law. These principles regulate the prerequisites under which facts, the truth of which is uncertain at the time of reporting , may be reported due to the safeguarding of legitimate interests analogous to § 193 StGB. These principles arose from a balance between the function of the press in public and the impairment of the life of the person concerned, which is threatened by the suspicion reporting.

Requirements for lawful suspicion reporting

Legitimate reporting of a suspicion presupposes that there is a legitimate public interest in the subject of the suspicion. This is usually the case with current issues that affect the public, such as grievances in politics or in other areas of social importance. At most in exceptional cases, however, the public interest exists in cases that can be assigned to the private or intimate sphere of the person concerned. Interest sets the limit within which reports may be made: the press may only disclose information on the matter as far as it goes. A naming is therefore generally only permitted if the public interest does not extend to the facts, but also to the person involved.

In addition, the media must identify a minimum level of evidence that could support the suspicion. The press is therefore obliged to research in accordance with journalistic due diligence before reporting. A suspicion report is not permitted, for example, if it is only based on a mere initial suspicion. The extent to which evidence must be available depends on the gravity of the allegation associated with the suspicion.

The minimum requirement for evidence exists to a lesser extent if the basis of the suspicion reporting comes from a privileged source. This includes in particular public bodies, for example public prosecutors . As a rule, their communications can be accepted by the press without further investigation of the suspicion, as the state's fundamental rights allow the press to assume that they are not violating any personal rights. The press cannot, however, claim such trust if the announcement obviously violates personal rights.

Furthermore, the reporter must confront the person concerned with the suspicion before publishing his report and obtain a statement from him. This is intended to give them the opportunity to present their point of view on the suspicion. The content of the statement must be used in the reporting.

Finally, the rapporteur has to present the suspicion in a neutral way. To do this, he must make it clear that the presentation is a matter of suspicion and cites both incriminating and exonerating circumstances. It is therefore not permissible to prejudge the person concerned in the media, for example through a one-sided presentation of the suspicion. Rather, the rapporteur must take into account the presumption of innocence .

Civil law claims of the person concerned

Various civil legal remedies are available to those affected by an inadmissible statement in the reporting in order to enforce the protection of their violated rights against the media.

omission

The person concerned can be entitled to an injunction against the expression of opinions or facts . This is based on the defensive claim of the owner standardized in § 1004 BGB, which is applied analogously to all absolute rights , including personal rights . The claim serves to prevent first-time or repeated violations of personal rights. Therefore, it presupposes a violation of personal rights. This can be done through statements of fact, expressions of opinion or illegal images. If the subject of the injunction claim is an ambiguous factual assertion, according to case law, there is an exception to the principle that in case of doubt the interpretation variant is to be used that least affects the person making the statement. Because it can be expected of those making the statement that they will express themselves more precisely in the future.

Furthermore, their first occurrence or their repetition must be threatened. The former is often undetectable for those affected. If he nevertheless learns of the violation of personal rights before the occurrence, he can enforce the defense claim by way of a preventive injunction . As a highly personal claim, the injunction is not inheritable. However, if the portrait of a deceased person is used without authorization after his / her death, the heirs of the person depicted can take action against this, since the right to use the portrait as a position of assets passes to the heirs with the inheritance . Irrespective of this, the use of an image also requires the consent of the relatives of the deceased in accordance with Section 22 sentence 3 KUG. This consent requirement exists for ten years after the death of the person pictured.

Reply

The right of reply was originally developed against allegations of fact in the press. This claim is regulated in the press laws of the federal states . He obliges the reporter to include a statement of the factual assertion in his medium at the request of the person affected by the report. This is intended to give the person concerned the chance to present his or her point of view within the medium that reports on an issue. Statements of fact that are not made explicitly, but result from the overall context of a report, are also considered to be statements of fact. The claim exists regardless of whether the assertion is admissible or inadmissible. Regulations comparable to the right to reply under press law can be found in the Interstate Broadcasting Treaty and in the state media laws . Which national law applies to a publication depends on the location of the publisher or the broadcaster.

The right to reply is excluded if the person concerned has no legitimate interest in its publication. Such an interest is lacking, for example, if the demand for a reply appears to be abusive. A request for a reply can also be rejected if the text to be used as a reply is inappropriate. This is the case if it is longer than the attacked text. Furthermore, the reply must relate exclusively to the alleged factual allegation. For the claim, however, it is irrelevant whether the content of the counter-statement is correct.

According to case law, a request for a reply is only successful if it meets all the requirements for a reply in every respect. Otherwise it will be rejected. If a counter-statement therefore contains only one inadmissible element, there is no entitlement to its publication.

Rectification

The right to correction extends further than the right to reply. This is aimed at the rectification or revocation of an untrue factual assertion by the reporter. He can also claim to have an incomplete presentation completed. The right to correction therefore obliges the person making the statement to make his own statement, and thus interferes much more strongly with his or her freedom of rights.

The claim is based on the defense claim contained in § 1004 BGB. It requires an incorrect factual assertion. Such a question can also result from a leading question or an impression created as compelling from the reader's point of view. The burden of proof for the untruth is borne by the claimant. However, since such evidence is generally difficult to provide, case law grants a simplification of the evidence by obliging the defendant to substantiate his assertion. If he does not succeed in this, the untruth of the statement is assumed on the basis of Section 138 (3) of the Code of Civil Procedure (ZPO). Furthermore, the falsehood of the factual assertion must lead to an impairment of personal rights which continues at the time the claim is made. This is lacking when the public interest in the subject of the asserted claim has expired.

The scope of the correction is based on the effort that is necessary to remove the impairment. Therefore, it must be reprinted or broadcast in a manner that ensures that it receives the same level of attention as the asserted claim.

damages

The claim for damages serves to compensate for damage suffered by the person concerned as a result of the violation of personal rights. In addition, it pursues a preventive function in that it is intended to discourage violations of personal rights. This claim is based on tort law , in particular in the regulations § 823 , § 824 and § 826 BGB.

These norms presuppose that the defendant commits a violation of personal rights in an illegal and culpable manner. The reporting is unlawful if it contravenes legal requirements, for example by containing a portrait, the publication of which violates § 22 sentence 1 KUG. The violation of the law is culpable if the damaging party is at least accused of negligence . Section 276 (2) of the German Civil Code defines negligence as the failure to observe the care required in traffic. This standard is concretized by the journalistic duty of care, a general obligation of press law, which is standardized among other things in the state press laws . This duty calls on the press, for example, to do extensive research before reporting and to confront those affected with the facts.

If these prerequisites are met, the opposing party is obliged to compensate for all damages resulting from his violation of the law. According to Section 249 (1) of the German Civil Code (BGB), this must be done in the form of in rem restitution. Since this is usually not possible, the debtor owes compensation in accordance with Section 251 (1) BGB. In the case of violations of personality rights, however, this can only rarely be quantified, since an impairment of personality can at best be measured if the injured party suffers direct disadvantages as a result, such as damage to reputation that prevents the successful conclusion of business. Therefore, case law allows the damage to be calculated using the license analogy . According to this calculation method, which is also used in copyright law , the indemnifiable damage is based on the costs that the injuring party would have had to incur for a legitimate report. If, for example, the injuring party uses a portrait of the person concerned without the consent of the person concerned, the injuring party must reimburse them for the price that they would have had to pay for proper use of the portrait. This procedure is based on the consideration that components of the right of personality have a market value. Such a commercialization of personal rights exists above all in the case of images of public figures. If, on the other hand, such commercialization cannot be ascertained, only a claim for compensation can be considered.

If the violation of personal rights led to a quantifiable profit for the injuring party, for example a significantly increased circulation, it is assumed that this profit corresponds to the value of the impaired personal right. Therefore, as an alternative to the other calculation methods, the injured party can also demand the injured party to pay compensation.

compensation

While material damage can be compensated through the claim for damages, the person concerned can demand cheap compensation for an immaterial legal violation with a claim for compensation. In accordance with Section 253 (1) of the German Civil Code (BGB), however, immaterial impairment is only eligible for compensation if the law expressly orders this. There is no such arrangement for impairments of the general right of personality. However, since the Herrenreiter case of 1958, the jurisprudence has recognized the possibility of monetary compensation for violations of personal rights, as this is necessary in order to effectively protect this legal interest. Therefore, the constitutional basis of the general right of personality, Art. 2 Paragraph 1 and Art. 1 GG serves as the basis of this claim. The claim for compensation pursues two goals: On the one hand, it should give the person who has been injured in his or her personal right adequate compensation for this impairment. On the other hand, it should deter personal rights violations.

The claim requires a violation of personal rights, which weighs heavily in individual cases. Relevant factors that support the assumption of a serious violation of personal rights are the significance and scope of the interference, the reason and motivation of the person responsible, and the degree of his fault. Since the compensation claim is a catch-all claim with which case law aims to close gaps in the protection of other claims, compensation can only be asserted if the injured party has no other possibility of compensation.

The amount of the compensation claim is determined in accordance with Section 287 (1) ZPO at our reasonable discretion. In order for the preventive function of the claim to take effect, the amount of the claim is also based on the infringer's economic position. For them, the obligation to pay compensation should represent a noticeable financial burden.

Enrichment issue

The person concerned can also demand the surrender of the enrichment achieved by the person who violates personal rights by way of the condition of interference according to § 812 paragraph 1 sentence 1 alternative 2 BGB. If the surrender of the enrichment is not possible, the opposing party owes value compensation according to § 818 paragraph 2 BGB . This is based on the amount that the infringer would have had to raise in order to legitimately use the other person's personal rights. This right stands alongside the right to compensation. It is characterized by the fact that it does not require the defendant to be at fault.

Addendum

Finally, a person concerned can be entitled to a supplement. The case law developed this claim for cases of admissible suspicion reporting in which the suspicion subsequently turns out to be untrue. In order to avoid a continuing damage to reputation through this suspicion, the person concerned can demand that the reporter declares in his medium that the suspicion has proven to be inaccurate.

literature

  • Axel Beater: media law . 2nd Edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-152030-3 .
  • Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 .
  • Martin Löffler, Reinhart Ricker (Hrsg.): Manual of press law . 6th edition. CH Beck, Munich 2012, ISBN 978-3-406-63169-6 .
  • Marian Paschke: Media Law . 3. Edition. Springer, Berlin 2009, ISBN 978-3-540-49087-6 .
  • Marian Paschke, Wolfgang Berlit, Claus Meyer (Eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  • Jens Petersen: Media Law . 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60955-8 .
  • Matthias Prinz, Butz Peters: Media Law: The Civil Law Claims . CH Beck, Munich 1999, ISBN 3-406-44853-4 .
  • Sascha Sajuntz, The Development of Press and Freedom of Expression in 2017 , NJW 2018, 589
  • Jörg Soehring, Verena Hoene, Georg Wallraff (eds.): Press law . 5th edition. Otto Schmidt, Cologne 2013, ISBN 978-3-504-67105-1 .

Individual evidence

  1. ↑ BVerfGE 7, 198 (208): Lüth judgment .
  2. ↑ Martin Morlok, Lothar Michael: Grundrechte . 5th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-2366-9 , Rn. 201.
  3. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 213.
  4. ↑ BVerfGE 71, 162 (179).
  5. ↑ BVerfGE 94, 1 (7).
  6. ↑ Hans Jarass: Art. 5 , Rn. 7. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  7. ↑ BVerfGE 7, 198 (207-209): Lüth judgment .
  8. ↑ Michael Antoni: Art. 5 , Rn. 26. In: Dieter Hömig, Heinrich Wolff (Ed.): Basic Law for the Federal Republic of Germany: Hand Commentary . 11th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1441-4 .
  9. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 3, Rn. 63.
  10. ↑ BVerfGE 7, 198 : Lüth judgment .
  11. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 230
  12. ↑ Michael Antoni: Art. 5 , Rn. 15. In: Dieter Hömig, Heinrich Wolff (Hrsg.): Basic Law for the Federal Republic of Germany: hand commentary . 11th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1441-4 .
  13. ↑ Hans Jarass: Art. 5 , Rn. 37. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  14. ^ Marian Paschke: media law . 3. Edition. Springer, Berlin 2009, ISBN 978-3-540-49087-6 , Rn. 10.
  15. ↑ BVerfGE 136, 9 (28).
  16. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 17, Rn. 50-52.
  17. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 12th edition. CH Beck, Munich 2015, ISBN 978-3-406-67576-8 , Rn. 390
  18. ↑ BVerfGE 33, 52 .
  19. ↑ BVerfGE 47, 198 (236).
  20. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 257.
  21. ↑ BVerfGE 30, 173 : Mephisto judgment .
  22. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 17, Rn. 76.
  23. ↑ BVerfGE 119, 1 : Esra judgment .
  24. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 3, Rn. 114.
  25. ^ Axel Beater: Media Law . 2nd Edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-152030-3 , Rn. 1715-1722.
  26. ↑ BVerfGE 75, 369 : Strauss caricature.
  27. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 623.
  28. ↑ BVerfGE 54, 148 (155).
  29. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 17th
  30. ↑ Marco Staake: Statutory Obligations . Springer, Berlin 2014, ISBN 978-3-642-30093-6 , § 8, Rn. 86-87.
  31. ↑ Manfred Wandt: Statutory Obligations: Tort law, damage law, enrichment law, GoA . 8th edition. Verlag Franz Vahlen, Munich 2017, ISBN 978-3-8006-5038-5 , Rn. 60.
  32. ^ BGH, judgment of October 12, 1993, VI ZR 23/93 = Neue Juristische Wochenschrift 1994, p. 124.
  33. ↑ BGH, judgment of May 30, 2000, VI ZR 276/99 = Neue Juristische Wochenschrift 2000, p. 3421 (3422).
  34. ↑ Lars Kröner: Section 31: The general right of personality , Rn. 72. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  35. ↑ Christoph Grabenwarter: Art. 5 , Rn. 158. In: Theodor Maunz, Günter Dürig: Basic Law Commentary , 79th supplement, December 2016.
  36. ↑ BVerfGE 93, 266 (292-300): Soldiers are murderers.
  37. ↑ Bejamin Korte: practice of the press law . CH Beck, Munich 2014, ISBN 978-3-406-64863-2 , § 2, Rn. 162.
  38. ↑ Marcus Herrmann: § 22 KUG , Rn. 21-22.1 . In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
  39. ↑ Horst-Peter Götting: § 22 KUG , Rn. 1. In: Ulrich Loewenheim, Matthias Leistner, Ansgar Ohly (eds.): Copyright . 6th edition. CH Beck, Munich 2020, ISBN 978-3-406-72096-3 .
  40. ↑ Marcus Herrmann: § 22 KUG , Rn. 2. In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017
  41. ^ BGH, judgment of December 1, 1999, I ZR 226/97 = Neue Juristische Wochenschrift 2000, p. 2201.
  42. ↑ Marcus Herrmann: § 23 KUG , Rn. 3 . In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
  43. ↑ BGHZ 171, 275 (278-279).
  44. ↑ Marcus Herrmann: § 23 KUG , Rn. 6–8.2 . In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
  45. ↑ a b ECHR, judgment of June 24, 2004, No. 59320/00 = Neue Juristische Wochenschrift 2004, p. 2647.
  46. ↑ Federal Court of Justice, judgment of July 3, 2007, VI ZR 164/06 = Neue Juristische Wochenschrift 2008, p. 749.
  47. ↑ BGHZ 171, 275 .
  48. ↑ Marcus Herrmann: § 23 KUG , Rn. 14 . In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
  49. ↑ Marcus Herrmann: § 23 KUG , Rn. 16-19 . In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
  50. ↑ Jens Petersen: Media Law . 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60955-8 , § 3, Rn. 14th
  51. ↑ BGHZ 171, 275 (286–287).
  52. ↑ BGHZ 171, 275 (284).
  53. ↑ a b BVerfGE 101, 361 : Caroline III judgment.
  54. ↑ Marcus Herrmann: § 23 KUG , Rn. 29-54 . In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
  55. ↑ BGH, judgment of September 28, 2004, VI ​​ZR 305/03 = Neue Juristische Wochenschrift 2005, p. 56.
  56. ↑ BGHZ 20, 345 .
  57. ^ BGH, judgment of October 1, 1996, VI ZR 206/95 = Neue Juristische Wochenschrift 1997, p. 1152 (1153).
  58. ↑ BGHZ 169, 340 .
  59. ↑ Marcus Herrmann: § 24 KUG , Rn. 1 . In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
  60. ↑ BVerfG, judgment of January 24, 2001, 1 BvR 2623/95 = Neue Juristische Wochenschrift 2001, p. 1633.
  61. ^ Marian Paschke: media law . 3. Edition. Springer, Berlin 2009, ISBN 978-3-540-49087-6 , Rn. 887
  62. ↑ Jens Rathmann: § 169 , Rn. 3. In: Ingo Saenger (Ed.): Code of Civil Procedure: ZPO . 7th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3487-0 .
  63. ^ Walter Zimmermann: Section 176 GVG, Rn. 9, 11. In: Wolfgang Krüger (Ed.): Munich Commentary on the Code of Civil Procedure . 4th edition. tape 3 : Sections 1025–1109, EGZPO, GVG, EGGVG, UKlaG. CH Beck, Munich 2013, ISBN 978-3-406-61033-2 .
  64. ↑ BVerfG, decision of April 3, 2009, 1 BvR 654/09 = Neue Juristische Wochenschrift 2009, p. 2117.
  65. ↑ BVerfGE 91, 125 (137-138).
  66. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 629
  67. ↑ Martin Morlok, Lothar Michael: Grundrechte . 5th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-2366-9 , Rn. 422.
  68. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 263.
  69. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 648.
  70. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 4th
  71. ^ BGH, judgment of July 29, 2003, 1 BvR 1964/00 = Neue Juristische Wochenschrift 2003, p. 3262.
  72. ↑ BVerfGE 120, 180 (207).
  73. ↑ ECHR, judgment of 7 February 2012, 39954/08 = Kommunikation und Recht 2012, p. 187.
  74. ↑ BVerfGE 35, 202 (231-234): Lebach judgment .
  75. ↑ Roger Mann: § 823 BGB Rn. 45. In: Gerald Spindler, Fabian Schuster (ed.): Law of the electronic media . 4th edition. CH Beck, Munich 2019, ISBN 978-3-406-73012-2 .
  76. ↑ Lars Kröner: Section 31 , marginal no. 63. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  77. ↑ Jörg Soehring: § 19 , Rn. 27. In: Jörg Soehring, Verena Hoene, Georg Wallraff (eds.): Press law . 5th edition. Otto Schmidt, Cologne 2013, ISBN 978-3-504-67105-1 .
  78. ↑ BGHZ 183, 353 .
  79. ↑ Lars Kröner: Section 31: The general right of personality , Rn. 56. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  80. ↑ BVerfG, judgment of November 27, 2008, 1 BvQ 46/08 = Neue Juristische Wochenschrift 2009, p. 350.
  81. ↑ Gernot Lehr: Criminal Defense and Media , Rn. 17. In: Eckhart Müller, Reinhold Schlothauer (Hrsg.): Munich Lawyers Manual for Criminal Defense . 2nd Edition. CH Beck, Munich 2014, ISBN 978-3-406-64370-5 .
  82. ↑ Gernot Lehr: Freedom of the press and personal rights - a tension for public relations in the judiciary . In: Neue Juristische Wochenschrift 2013, p. 728 (728–730).
  83. ↑ Matthias Prinz, Butz Peters: Media law: The civil law claims . CH Beck, Munich 1999, ISBN 3-406-44853-4 , Rn. 265.
  84. ^ BGH, judgment of November 15, 2005, VI ZR 286/04 = Neue Juristische Wochenschrift 2006, p. 599.
  85. ↑ Gernot Lehr: Freedom of the press and personal rights - a tension for public relations in the judiciary . In: Neue Juristische Wochenschrift 2013, p. 728 (730).
  86. ↑ Lars Kröner: Section 31: The general right of personality , Rn. 60-61. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (Eds.): Hamburg Commentary General Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  87. ↑ a b BGHZ 143, 199 (203).
  88. ^ BGH, judgment of November 26, 1996, VI ZR 323/95 = Neue Juristische Wochenschrift 1997, p. 1148 (1149).
  89. ↑ Gernot Lehr: Criminal Defense and Media , Rn. 22. In: Eckhart Müller, Reinhold Schlothauer (Hrsg.): Munich Lawyers Manual for Criminal Defense . 2nd Edition. CH Beck, Munich 2014, ISBN 978-3-406-64370-5 .
  90. ↑ Gernot Lehr: Limits for the public relations work of the investigative authorities . In: New Journal for Criminal Law 2009, p. 409 (412).
  91. ^ BGH, judgment of January 30, 1996, VI ZR 386/94 = Neue Juristische Wochenschrift 1996, p. 1131.
  92. ↑ Lars Kröner: Section 31: The general right of personality , Rn. 54. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  93. ↑ Gernot Lehr: Limits for the public relations work of the investigative authorities . In: New Journal for Criminal Law 2009, p. 409 (411–412).
  94. ↑ Gernot Lehr: Freedom of the press and personal rights - a tension for public relations in the judiciary . In: Neue Juristische Wochenschrift 2013, p. 728 (731).
  95. ↑ BGHZ 132, 13 (25).
  96. ↑ Gernot Lehr: Criminal Defense and Media , Rn. 29. In: Eckhart Müller, Reinhold Schlothauer (Hrsg.): Munich Lawyers Manual for Criminal Defense . 2nd Edition. CH Beck, Munich 2014, ISBN 978-3-406-64370-5 .
  97. ↑ OLG Düsseldorf, June 20, 1979, 15 U 199/78 = Neue Juristische Wochenschrift 1980, p. 599 (600).
  98. ^ Higher Regional Court Brandenburg, judgment of February 15, 1995, 1 U 23/94 = Neue Juristische Wochenschrift 1995, p. 886.
  99. ^ LG Hamburg, judgment of January 16, 2004, 324 O 311/03.
  100. ↑ Jens Petersen: Media Law . 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60955-8 , § 4, Rn. 20th
  101. ↑ BVerfGE 114, 339 : Stolpe judgment.
  102. ↑ Jens Petersen: Media Law . 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60955-8 , § 5, Rn. 1, 11-16.
  103. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 105-109.
  104. ↑ BGHZ 143, 214 : Marlene Dietrich judgment.
  105. ↑ Marcus Herrmann: § 22 KUG , Rn. 29 . In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
  106. ↑ Marcus Herrmann: § 22 KUG , Rn. 28-28.2. In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
  107. ↑ BVerfGE 63, 131 (142).
  108. ↑ Jens Petersen: Media Law . 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60955-8 , § 7, Rn. 1-2.
  109. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 115-116.
  110. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 111.
  111. ↑ Claus Meyer: Section 39: Right to reply , Rn. 2. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (Eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  112. ↑ BVerfG, judgment of February 19, 1993, 1 BvR 1424/92 = Archive for Press Law 1993, p. 474 (475).
  113. ↑ Jens Petersen: Media Law . 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60955-8 , § 7, Rn. 13-14.
  114. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 120.
  115. ^ BGH, judgment of December 9, 2003, VI ZR 38/03 = Journal for Copyright and Media Law 2004, p. 211.
  116. ↑ Claus Meyer: Section 41: Right to Correction , Rn. 3. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  117. ↑ BGH, judgment of February 17, 1987, VI ZR 77/86 = industrial legal protection and copyright 1987, p. 397 (399).
  118. ^ BGH, judgment of April 22, 2008, VI ZR 83/07 = Neue Juristische Wochenschrift p. 2262 (2264).
  119. ↑ Claus Meyer: Section 41: Right to Correction , Rn. 5. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (Eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  120. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 123-126.
  121. ↑ Claus Meyer: Section 41: Right to Correction , Rn. 7. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (Eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  122. ↑ BGH, judgment of May 20, 1969, VI ZR 256/67 = Commercial legal protection and copyright 1969, p. 555 (557).
  123. ↑ Claus Meyer: Section 41: Right to Correction , Rn. 14. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (Eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  124. ↑ Jens Petersen: Media Law . 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60955-8 , § 4, Rn. 19, 21.
  125. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 139-144.
  126. ↑ Jens Petersen: Media Law . 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60955-8 , § 6, Rn. 29
  127. ↑ Jens Petersen: Media Law . 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60955-8 , § 4, Rn. 11.
  128. ↑ BGHZ 26, 349 : Herrenreiter judgment .
  129. ↑ a b BGH, judgment of November 15, 1994, VI ​​ZR 56/94 = Neue Juristische Wochenschrift 1995, p. 861 (864): Caroline I judgment .
  130. ↑ BVerfGE 34, 269 (282): Soraya judgment .
  131. ↑ Endress Wanckel: Section 43: Compensation , Rn. 1. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (Eds.): Hamburg Commentary Overall Media Law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  132. ↑ Endress Wanckel: Section 43: Compensation , Rn. 53. In: Marian Paschke, Wolfgang Berlit, Claus Meyer (eds.): Hamburg commentary on general media law . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2693-6 .
  133. ^ Marian Paschke: media law . 3. Edition. Springer, Berlin 2009, ISBN 978-3-540-49087-6 , Rn. 1158.
  134. ↑ BGHZ 20, 345 : Dahlke judgment.
  135. ^ BGH, judgment of October 26, 2006, I ZR 182/04 = Neue Juristische Wochenschrift 2007, p. 689.
  136. ↑ BGH, judgment of March 11, 2009, I ZR 8/07 = Industrial property rights and copyright 2009, p. 1085.
  137. ^ Frank Fechner: Media Law . 17th edition. Mohr Siebeck, Tübingen 2016, ISBN 978-3-8252-4596-2 , Chapter 4, Rn. 158.
  138. ↑ BGH, judgment of November 18, 2014, VI ​​ZR 76/14 = Neue Juristische Wochenschrift 2015, p. 778.
  139. ↑ Stefan Söder: § 823 BGB , Rn. 260-261. In: Hubertus Gersdorf, Boris Paal (Hrsg.): Beckscher online commentary on information and media law. 16th edition. 2017.
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