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| The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 02 May 2018, 1 BvR 666/17 [CODICES] | |
Third Chamber of the First Senate Order of 02 May 2018 1 BvR 666/17 | |
Headnotes (non-offical): 1. The fundamental right to freedom of the press entitles its holders to creating press products according to their ideas and to choosing what to print.
2. The press may not be subjected to a general duty to continue reporting on new developments of topics which it has addressed before or to research whether a suspicion has been confirmed or dispelled after it has reported on an issue.
3. In principle, it is not objectionable under constitutional law to infer from §§ 823, 1004 of the Civil Code a “claim to remove the consequences of reporting”, which is independent of the right of reply and applies where subsequent courts find that the situation is different from what has been reported regarding a criminal offence, even though the reporting had originally been lawful, and where the resulting infringement of the right of personality persists.
4. It is an interference with the freedom of the press when claims to subsequent reports are granted after a suspicion was reported, which had originally been lawful. These interferences must therefore remain limited to exceptional cases.
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Summary: I. The applicant is a weekly news magazine. The plaintiff in the initial proceedings is the former chief legal adviser of a bank. In one of its issues, the news magazine reported on the internal situation of the bank and particularly on the circumstances of the dismissal of one of the managers because he was suspected of having leaked confidential material to journalists. The report stated that it was possible that the plaintiff had participated in spying on the former manager which had led to his dismissal due to allegations that had potentially been false. The public prosecution office discontinued the criminal investigation into the plaintiff’s behaviour due to lack of a sufficiently strong suspicion. Subsequently, the Regional Court and the Higher Regional Court decided that the applicant was obliged to correct its report by stating that the plaintiff had not been involved in the reported events. After the Federal Court of Justice had reversed the decisions and remanded the matter, the Higher Regional Court decided that the applicant was obliged to print a statement drafted by the plaintiff. This reply had to include one passage of the former report and had to end with the sentence “from today’s perspective we do not uphold this suspicion”. The heading had to be changed from “correction” to “addendum”. The applicant’s further complaints remained unsuccessful. By way of its constitutional complaint, the applicant challenged the second decision of the Higher Regional Court and the subsequent decisions of the Federal Court of Justice.
II. The Federal Constitutional Court held that the decisions violate the applicant’s freedom of expression and the freedom of the press according to the first and second sentence of Article 5.1 of the Basic Law. With regard to content, form and volume of the text to be printed, it must be considered whether the original report was lawful. In particular, the press may not be obliged to assess the changed circumstances itself. It is only obliged to publish an objective statement which is limited to the factual basis of the changed circumstances. Legal proceedings concerning the right of reply are different from those concerning claims to print a subsequent report. While the right of reply is dependent on whether the assessment of the suspicions by the press satisfied the requirements relevant in that regard, the claim to a subsequent report is contingent on the fact that later insights make such a report necessary. The decision of the Higher Regional Court does not distinguish between the right of reply regarding the original report and a subsequent report on the basis of the changed circumstances. Furthermore, the addendum to be printed by the applicant does not satisfy the constitutional requirements with regard to content, form and volume.
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