Correction following suspicion reporting?

The Federal Court of Justice (BGH) had to consider whether a person affected by permissible suspicion reporting in a news magazine could assert a right to correction based on the principles of general personality rights if the suspicion of an offence on which the report was based were later cleared.

In the present case, a former chief legal officer of a bank sued the publisher of a news magazine. The magazine had reported in an article about a senior bank employee who had been dismissed on suspicion of breach of duty. In doing so, suspicion was expressed that the legal officer had been an accessory to the offence of having had the former chairman of the board of the bank bugged, having his private residence searched and having assisted in the falsification of documents. This suspicion was initially expressed by a security consultant of the bank and taken up by the news magazine. Later, the security consultant revised his statement and the criminal investigation proceedings initiated against the chief legal officer were discontinued.

The lawyer now demanded from the publisher a correction of this reporting concerning him published in the magazine on the grounds of a violation of his general personality rights.

The appellate court upheld the case of the legal officer and ordered the publisher to publish in their news magazine under the heading "Correction" a statement to the effect that they did not maintain the suspicion.

The press representative opposed this by lodging an appeal with the BGH.

Decision of the Court

The Federal Court of Justice (BGH) overturned by judgment of 18 November 2014 – Az. VI ZR 76/14 (Press Release) the impugned judgment.

The article in question constituted permissible suspicion reporting that did not prejudge the chief legal officer. According to the BGH, the possible misconduct by bank managers, which had increasingly come into public view in the course of the financial crisis, was a matter of grave significance whose disclosure was justified by a public information requirement. The defendant had also substantiated a sufficient minimum set of factual evidence which, at the time of publication, spoke in favour of the plaintiff's involvement in the matters in question. This had been sufficient under the concrete circumstances of the case.

Although a right to correction could in principle come into question even in the case of permissible suspicion reporting if the suspicion of an offence were later cleared and the reputational damage suffered through the report were to persist, however, the required balancing between the generalpersonality rightof the person affected and the right of the press to freedom of opinion and the media shows that the press organ cannot be required to place itself in the wrong following permissible suspicion reporting. For this reason, if the suspicion were later cleared and the impairment were to persist, the affected person could not demand from the press organ a correction of the original reporting but only a subsequent notice (addendum) that, following clarification of the facts, the reported suspicion would no longer be maintained.

Conclusion

According to the BGH ruling, a person affected by permissible suspicion reporting has only a right that an addendum be published relating to the reporting that has been made, which contains the clearing of the suspicion. A correction, by contrast, cannot be demanded by the affected person.