You are here:
| 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. | |
|---|---|
| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 24 May 2023, 1 BvR 605/23 [CODICES] |
First Chamber of the First Senate Order of 24 May 2023 1 BvR 605/23
| |
1a. In principle, a decision to grant a preliminary injunction can only be considered if the defendant has had the opportunity to respond to the submissions addressed to the court.
1b. A decision made to the defendant’s disadvantage without a hearing must demonstrate that the court was aware of the exceptional nature of the proceedings. In particular, there must not have been any less drastic alternatives. This is generally the case only when it was not even possible to give the defendant the opportunity by telephone, e-mail or fax to review and respond to the application. A decision that does not meet this standard will only satisfy the constitutional requirements for preliminary injunctions in free speech cases in exceptional circumstances.
2. The right to procedural equality of arms is violated if the court in the preliminary injunction proceedings fails to search the central registry of protective letters (§ 945a of the Code of Civil Procedure, hereinafter the “Code”) or fails to recognise the relevance of a protective letter | |
Summary:I. The applicant is the service provider for a website that reported on the announcement of rapper (…) that they would not appear as an opening act for the band (…) at an upcoming concert. This announcement had been preceded by posts by unknown persons on the social media networks Twitter (now X) and Instagram between June and August 2022 alleging sexual violence and abuse by the lead singer of the band. These allegations were reported in numerous media outlets throughout Germany.
The social media posts were subsequently deleted, and the band denied the allegations. The online report of 10 March 2023 indicated that the rapper’s decision not to appear was due to the allegations of sexual violence, including statements from the deleted posts and a post from the rapper’s social media account.
On 13 March 2023, attorneys for the band and lead singer sent a written demand to the applicant to agree to a legally enforceable declaration to cease and desist (Unterlassungserklärung) publication of that part of the report relating to the allegations, with a deadline to respond by no later than noon the following day. This deadline was later extended to 20 March 2023. Along with the notice of the extension, a draft application for a preliminary injunction was sent to the applicant.
On 20 March 2023, the applicant formally rejected the demand. On the same date, the applicant filed a protective letter pursuant to § 945a of the Code with the central registry in Frankfurt. The protective letter requested that any application for an injunction concerning the statements referenced in the 13 March 2023 demand be rejected or, in the alternative, that no decision be taken without an oral hearing. The protective letter included copies of various media articles from 2022 reporting on the allegations.
On 23 March 2023, the band and lead singer applied for a preliminary injunction against the applicant in the Berlin Regional Court. The application included the applicant’s rejection letter, but also additional information denying the allegations that was not previously sent to the applicant. On 28 March 2023, the Regional Court granted the application without an oral hearing due to “urgency”, finding that the submissions made in the application and attached documents justified the claim for injunctive relief. The Regional Court further stated that because the applicant had been sent a copy of the application on 20 March 2023 and 23 March 2023, and had sent a rejection letter on 20 March 2023, it was not necessary to hear from the applicant prior to rendering a decision.
The applicant requested the injunction be set aside. The applicant also filed a constitutional complaint, arguing that the Regional Court’s apparent failure to look up the protective letter in the central registry and take note of the complete argument in opposition violated the applicant’s right to procedural equality of arms. According to the files of the Regional Court, a review of the central registry was made on 24 March 2023, but the applicant’s protective letter was deemed to be irrelevant.
II.
The First Chamber of the First Senate suspended the order of the Regional Court until a decision in the main proceedings or until a renewed decision of the Regional Court, or for six months at the latest. The Court found that the order violated the applicant’s fundamental right to procedural equality of arms under Article 3.1 in conjunction with Article 20.3 of the Basic Law, for the following reasons:
A court in preliminary injunction proceedings can consider pre-litigation arguments in lieu of hearing from the defendant only when it is ensured that such arguments are available in their entirety. Procedural equality of arms is only satisfied in such cases if all of the following are met: the application for a preliminary injunction must be filed immediately after expiration of a reasonable period of time to provide a cease and desist declaration; the statements that are the subject of the demand and the grounds for such demand must be identical to the application submitted to the court; and the party seeking the injunction must file any letter of rejection from the defendant with the application. If the defendant was not given proper notice or if the application is substantiated in a different manner than in the demand, the defendant must be granted a hearing. Further, the requirement to submit the defendant’s rejection letter is to be understood broadly and includes any statements from the defendant – even automated ones – that are of importance for the substantive assessment of the claim or the handling of the proceedings.
The urgency cited by the Regional Court is far from apparent. On the contrary, the parties seeking the injunction did not react to the expiry of their initial tight deadline until three days after that deadline had expired. Moreover, their response was not to file an application, but instead to grant a further grace period. The application was not filed until another three days after this extended deadline. Further, the parties seeking the injunction did not request ex parte proceedings, only a decision without an oral hearing. That the Regional Court nevertheless refrained from contacting the applicant and issued a decision three working days later is incomprehensible and violated the applicant's right to procedural equality of arms.
|