Permissibility of reporting on suspicion?

Is it permissible for a publisher to report on a criminal investigation by a public prosecution office against a dentist if the accused is not named but is easily identifiable on the basis of the details provided? The Higher Regional Court (OLG) Karlsruhe dealt with the legal question of the limits of identifying reporting.

A dentist resisted in the context of preliminary injunction proceedings a report by a newspaper publisher which reported on an investigation against the dentist concerning the performance and billing of medically non-indicated treatments.

The publication on the publisher's news portal contained, in addition to further reporting on the investigation, statements by the public prosecution office and the vice-president of the responsible state dental association regarding the allegations.

The plaintiff argues that he is identifiable on the basis of the information contained in the article, since the report reproduced personal details about the dentist who was not named, which can also be found on the website of the dental practice. For example, the combination of the word dentist, the city name "A." and an advertising statement in the search engine google.de results in the first search result being a link to the website of the plaintiff's practice.

According to the dentist's view, the publisher must cease this identifying reporting, as its public exposure effect violates his general right of personality.

The newspaper publisher saw this differently and let it come to a legal dispute.

Court decision

The Higher Regional Court (OLG) Karlsruhe decided byjudgment of 02.02.2015 – 6 U 130/14– that although the contested reporting infringed the plaintiff's general right of personality, it was permissible in view of the public's interest in information.

The allegation reproduced in the article, that medically non-indicated treatments had been performed and billed, was readily capable of considerably impairing the social standing claim of the dentist suspected in such manner. This applied regardless of whether the allegations raised in the reporting were presented as proven or not.

On the other hand, reporting on possible abuses belonged to the fundamental tasks of afree press. Therefore, a publisher may not be prohibited from publishing statements of fact whose truthfulness is unresolved and which concern a matter of essential importance to the public, as long as he deems it necessary for the protection of legitimate interests.

Here, the public's interests in information outweigh the plaintiff's interests in confidentiality under the circumstances of the present case.

The contested article, following a weighing of the public's interests in information against the conflicting interests in confidentiality of the dentist, is not objectionable and remains within the scope of permissible reporting on suspicion.

Conclusion

In this case, the Higher Regional Court (OLG) Karlsruhe decided that identifying reporting, despite its public exposure effect, is permissible. For the dentist – should he be innocent – the outcome is of course quite bitter, as the reporting on suspicion will have economic consequences.

This demonstrates that such cases are rarely clear-cut and require specialized advice.