Violation of the right of personality through assumptions?

Is the press permitted to publish assumptions about a possible insolvency of a company in the context of a publication, or are the (corporate) personality rights of the company violated by such statements? The Regional Court (LG) Cologne recently had to decide such a case.

A newspaper publisher published an online article about an energy service provider. In the article, assumptions were made about its ability to pay the EEG levy to be paid. The publisher wrote:

"Although D customers did not have to pay in advance, should the supplier become insolvent, it could be that the network operators would recover the outstanding EEG levy from the electricity customers".

The energy service provider objected to this publication because it felt that its corporate personality right had been violated. It was of the view that the statement constituted a deliberately false assertion of fact that could deter potential customers. Therefore, it asserted a claim for an interim injunction against the publisher, against which the press representative defended itself with the argument that the statement constituted a permitted expression of opinion.

Decision of the court

The Regional Court (LG) Cologne decided by judgment of 25.02.2015 (Az. 28 O 419/14), that in weighing conflicting interests, false and deliberately untrue assertions of fact relating to the sphere of a company's commercial activity are not protected by the fundamental right to freedom of expression of opinion.

The personality right of a legal entity, just like the general personality right, constitutes an open legal provision, the content and limits of which are first determined by a balancing of interests and weighing of goods with the sphere of interest of others that concretely conflicts in the individual case. Where conflicting interests – as in the present case – of freedom of the press and the (entrepreneurial) personality right were opposed to each other, the admissibility of a statement depended decisively on whether it was an assertion of fact or an expression of opinion. Facts were internal and external events that are at least theoretically accessible to proof and can thus be determined to be true or untrue, whereas expressions of opinion are characterised by the element of a statement or position.

Taking these principles into account, the disputed statement constituted an expression of opinion by the publisher, since it speculated about – in its view – a possible reaction by the network operators in the event of an alleged lack of ability to pay by the energy service provider. Here, the elements of the statement clearly outweighed the possible factual core contained therein to such an extent that the statement as a whole had to be regarded as an expression of opinion.

Conclusion

Negative expressions of opinion about a company which lack a factual basis constitute a violation of the company's personality right, against which the entrepreneur can defend itself. This applies in particular if the speculations put forward by the press are based on erroneous or erroneously presented information.