Violations of personal rights between the lines

If false statements are made about a person in the press or media, or if their honour is violated, the affected person can defend themselves on the basis of their general right to personal protection. However, particularly critical statements are often not expressed openly, but only covertly, so that the false statement or violation of honour emerges only from the context. However, statements 'between the lines' can also lead to damage to reputation. To what extent claims can be asserted against such covert statements is, however, disputed.

Already on the basis of the case law of the Federal Constitutional Court (BVerfG) in the case of the former Federal Minister of Transport and Minister-President of Brandenburg Manfred Stolpe (decision of the BVerfG of 25.10.2005, Az.: 1 BvR 1696/98), a claim directed at the future prohibition of a statement should be upheld if the statements in question are ambiguous, and in one of the not remote interpretive variants the general right to personal protection of the person affected by the statement is violated. However, two more recent decisions raise more questions than they answer.

Higher Regional Court (OLG) Düsseldorf

The Higher Regional Court (OLG) Düsseldorf (Judgment of 16.10.2013, Az. 15 U 130/13) had to decide a case in which the plaintiff, a lawyer, opposed reporting in connection with an insolvency proceeding accompanied by him as an insolvency administrator, in which, inter alia, his proximity to a creditor bank is depicted, which allegedly received better treatment than (other) bondholders. In doing so, the plaintiff also objected to the fact that the defendant had reported: 'The judge insisted on independence and brought a new insolvency administrator on board.' The defendant thus gave the impression that the applicant had been appointed as insolvency administrator, then removed and replaced by another insolvency administrator.
The Higher Regional Court (OLG) Düsseldorf did not regard this as an application case of the 'Stolpe case law' of the Federal Constitutional Court (BVerfG) and rejected the existence of a claim for injunction.

Based on the existing case law of the Federal Court of Justice (BGH), a distinction must be made in the case of covert statements between

• the communication of facts from which the reader can and should draw his own conclusions, and
• a 'covert' statement of the author's own, which the author makes through the interplay of the 'open' statements, or which the author presents to the reader as an inescapable conclusion.

For the protection of freedom of expression and press freedom, only in the second case can the 'covert' statement be equated with an 'open' statement by the person making the statement, and only in this case and under narrow conditions can the general right to personal protection of the affected person be violated.

Local Court (AG) Munich

Also in a case of the Local Court (AG) Munich (Judgment of 03.08.2012, Az.: 158 C 24486/11) the issue concerned covert statements. It involved an online post through which the plaintiff, the former chairman of the board of a holding company, saw himself in connection with a 'sex party' organized by an intermediary organization belonging to the holding in Budapest, which, in addition to sales employees, was attended by approximately 20 prostitutes.

The post stated: 'K. was a member of the board and chairman of the board of (…)-subsidiary (…) from 1 July 2006 to 8 October 2007. During his tenure, in June 2007, the sex party of the intermediary organization (…) took place in Budapest. (…) first reported on it just over a week ago. According to the 2007 business report, K. left the board of (…) by mutual consent. In the press, the reason was then given as: 'differing views on future business policy.'"

The Local Court (AG) Munich rejected the reimbursement of warning letter costs demanded by the plaintiff (following clarification in the article by the defendant). The statement attributed to the plaintiff by it — that he was in some way connected to the sex party in Budapest and had therefore resigned from the board — could not be derived from the disputed reporting as an open statement. For this reason alone, the court saw no indication to apply the principles of the Stolpe case law of the Federal Constitutional Court (BVerfG) to the present case. In addition, in the court's view, the disputed reporting does not — at least openly — contain any further interpretive variants that would lead to an ambiguity of the disputed statement. Rather, it is a succession of true facts concerning the professional career of the plaintiff and which — openly — contained no further informational content beyond that.

However, the court further stated that, as already explained during the oral proceedings, it did not overlook the fact that the disputed reporting could also be interpreted differently from its open informational content in the sense of the plaintiff's argument. According to the court's view, this mere possibility of interpretation did not justify the assumption of a covert statement that could lead to a violation of the plaintiff's general right to personal protection in the present case. Covert statements were to be assumed only under narrow conditions in the interest of the free communication process protected by freedom of expression and press freedom, namely only if they present themselves to the reader as an inescapable conclusion from the interplay of openly made statements.

Federal Constitutional Court (BVerfG)

Both decisions are to be opposed. The Federal Constitutional Court (BVerfG) (decision of 19.12.2007, 1 BvR 967/05) has already expressly equated 'covert statements' with 'ambiguous statements' in its decision on the effects of the 'Stolpe case law' with the following words:

'The interpretation of a statement aims at determining the objective meaning that the statement has from the perspective of an impartial and informed public when its context and discernible surrounding circumstances are taken into account. Remote interpretations (…) are to be excluded (…) as are untenable assumptions of a covert statement (cf. BVerfGE 43, 130, 138,). However, if a covert statement is to be assumed, it shall form the basis of further examination. If it appears that a substantial part of an impartial and informed public derives not only open but also covert, diverging from the open statements, contents from the statement, then in the further examination these contents shall also be taken into account. The statement is in this sense open to multiple interpretations.'

Although only a right of reply was demanded in the underlying case, the Federal Constitutional Court (BVerfG) nevertheless explicitly referred also to claims for damages, compensation, correction, injunction and clarification and showed a graduated relationship here:

• In the case of claims for damages, compensation or correction, a judgment (due to the feared chilling effect) should only be made if all other 'milder' interpretations that would not result in a judgment could be excluded with comprehensible reasons;
• With regard to claims for injunction against future statements, such chilling effects through personal protection measures would not be triggered insofar as the person making the statement has the possibility to avert the impairment of another person's right to personal protection without excessive burden to themselves through their own actions. In the case of ambiguous statements, this can be done by a clarification of their content. Insofar as a now unambiguous statement does not result in a legal violation, there is no claim for injunction;
• If the statement, even after attempted clarification, contains a violation of personal rights or if the person making the statement refuses to give the statement an unambiguous content, there is also no constitutionally sustainable reason to refrain from a judgment ordering cessation merely because the statement permits multiple interpretive variants, including those that result in one or even only a lesser violation of personal rights. The weighing against the right to personal protection must then be based on all not remote interpretive variants that impair this right.

Conclusion

The considerations made by the Higher Regional Court (OLG) Düsseldorf and the Local Court (AG) Munich are to be rejected for the reasons stated. It is generally recognized that covert statements by which the author themselves wishes to suggest a particular interpretation justify a claim for injunction. However, there is no comprehensible reason why, in the case of covert statements that permit a particular injurious interpretation but which do not suggest that the author themselves is suggesting this interpretation, at least a clarification should not be demanded if this is readily possible. If in such cases an inappropriate clarification is made or clarification is refused, there is no need for protection of the person making the statement and a judgment ordering cessation is justified.