Reporting suspicions in online archives?

Reporting suspicions in the media is repeatedly the subject of court proceedings. The Federal Court of Justice (BGH) has now had to decide whether information about a suspect that is accessible in the online archives of a newspaper must be deleted by the publisher if the original reporting was inadmissible.

A German daily newspaper had stored articles in its online archive and made them publicly available in which, for topical reasons, it reported on an investigation by the public prosecutor's office regarding sexual abuse through the administration of knockout drops to incapacitated persons against a well-known football professional. Following the conclusion of the investigation, the daily newspaper had supplemented its online archive to state that the proceedings against the athlete had been terminated due to insufficient suspicion of a criminal offence.

The football professional objected to this reporting of suspicions and demanded the removal of the articles identifying him. The publisher rejected this, arguing that the continued provision of the articles identifying him in the online archive did not constitute an interference with the football player's general right to personality since they were originally admissible for topical reasons.

The action for an injunction directed against the publisher was initially granted by the Regional Court (LG) Cologne. The Higher Regional Court (OLG) reversed this decision on appeal and dismissed the football player's claims for injunctive relief.

Decision of the court

The Federal Court of Justice (BGH) decided by judgment of 16.02.2016 (Az. VI ZR 367/15) that the provision of the reporting of suspicions in online archives constitutes an interference with the football player's general right to personality, since the articles publicise an alleged misconduct and the athlete – even in the case of mere reporting of suspicions – remains negatively characterised in the eyes of many readers.

In weighing the right to personality against the freedom of opinion and of the press, it is essential whether the original reporting was lawful and admissible. This was not the case here, since the mere fact of the initiation of an investigation as such is not sufficient to meet the requirement of a minimum amount of factual evidence in order to permit identifying reporting. However, this must be required in the case of such serious allegations.

Conclusion

Reporting suspicions and its storage in online archives is only permissible under strict conditions. Even if the public prosecutor's office as a privileged source reports by name on an investigation, publishers must make their own appraisal as to whether, according to the principles of reporting suspicions, they may name the accused.