Violation of personality rights in retrospect?

Can a press article originally lawfully published on the internet result in a violation of the affected person's general personality right after the cessation of general public interest in the reported events? The Higher Regional Court of Hamburg (OLG Hamburg) had to deal with such a claim for injunction.

A communications consultant had been accused, on the basis of a criminal complaint filed by a German politician, of having sent anonymous faxes containing insulting and defamatory statements to that politician. The criminal investigation proceedings of the public prosecutor were finally discontinued by mutual agreement with the plaintiff in exchange for payment of EUR 40,000.00. In this context, the press reported very critically on the concrete circumstances of the discontinuation of the proceedings.

The publisher of a national daily newspaper kept the reports from that time available for retrieval in the internet archive of the newspaper even after several years.

After the criminal proceedings against the communications consultant had been discontinued, he demanded that the publisher cease making the publicly available on the internet, as the reporting violated his general personality rights. He claimed a right to be forgotten stemming from his personality right.

The publisher opposed the claim and won at first instance. The Regional Court of Hamburg (LG Hamburg) justified its rejection of the injunction claim based on the communications consultant's general personality right by stating that an interference with the freedom of reporting was not permissible in light of the existing public interest in the articles.

Decision of the court

The Higher Regional Court of Hamburg (OLG Hamburg) decided in Judgment of 07.07.2015 (Az. 7U 29/12) that press publications addressing investigation proceedings, which are permanently findable and retrievable for every internet user without significant effort, substantially impair the personality right of the affected person.

The affected person must tolerate this impairment only so long as there is strong public interest in the matters. However, if – as is often the case in reporting on accusations of a criminal or similar nature – the legitimate public interest decreases over time, this must apply in particular if the accusations, as in this case, have not gone beyond discontinued investigation proceedings, the discontinuation of the proceedings has brought the matter to a close, and they have by now been several years in the past.

Conclusion

The general personality right of the individual must always be weighed against the information interest of the public. The legitimate public interest often diminishes very considerably over time, so that the rights of the affected person eventually outweigh the public interest. There is therefore a right to be forgotten stemming from the general personality right.

However, the affected person has a corresponding duty to notify. Only from the time of knowledge on must the operator of a press archive take measures to ensure that the relevant contributions do not become a continuously flowing source of impairment to the personality rights of the affected person.