Press report with stolen evidence permissible?

The Federal Court of Justice (BGH) had to decide at the highest instance whether a journalist defendant was permitted to use stolen e-mails as a source of information for the purpose of press reporting. The BGH had to balance the politician's general personality right with the public's interest in information derived from freedom of the press.

A high-ranking politician and minister of a German state maintained an extramarital relationship with an employee, from which a common daughter resulted. The child's mother received, at her request, social security benefits under the Unterhaltsvorschussgesetz due to the politician's concealment of paternity. After the politician's computer was stolen, it was passed on to a journalist, who found corresponding evidence in the minister's e-mail history and confronted the politician with it.

The journalist charged the politician with the fact that e-mails addressed to him from the child's mother revealed that he was the father of her child and had not paid her regular maintenance. There was therefore a suspicion of social security fraud.

The politician subsequently sued the journalist for an injunction by which the journalist was to be prohibited from publishing four e-mails verbatim or in substance. Both the Regional Court (LG) and the Court of Appeal Berlin (Kammergericht Berlin) ruled in favour of the minister and condemned the press representative.

Decision of the court

The VI Civil Senate of the Federal Court of Justice (BGH), which is responsible for the protection of the general personality right, announcesPress releasethat it has, by judgment of 30.09.2014 – Az. VI ZR 490/12 – in favour of freedom of the press, overturned the judgments of the lower courts and dismissed the claims.

Admittedly, areportthat is based on the content of the e-mails exchanged between the politician and his mistress, does interfere with the minister's sphere of confidentiality and his right to informational self-determination.

However, the interference is not unlawful in the present case. The public's interest in information pursued by the defendants and their right to freedom of opinion outweigh the plaintiff's interest in the protection of his personality, even taking into account the fact that the published information was obtained by a third party in an unlawful manner.

In its reasoning, the BGH states that the journalist did not obtain the information through intentional breach of law. Moreover, the information, the truthfulness of which the politician does not dispute, has high public value, as it disclosed a serious defect for the disclosure of which there was an overriding public interest.

Conclusion

In cases of invasion of privacy, the courts must balance the generalpersonality rightwith the public's interest in information derived from freedom of the press. In doing so, private individuals enjoy greater protection than individuals who, like the politician in the present example, are in public life.

That this is certainly a borderline case is already made clear by the previous decisions of the Regional Court (LG) and Court of Appeal (Kammergericht), which ruled in favour of the politician. After all, the evidence against the minister was obtained through a criminal offence. In the present case, therefore, a different decision would have been supportable on good grounds.