General information about press law
Strictly speaking, press law refers to the legal position of press companies. These are, according to the definition of the press laws of the German states, companies that reproduce and distribute printed works (writing, sound recordings, sheet music, and so on). Ultimately, press law is part of the general right to freedom of expression. Freedom of expression protects the distribution of word, picture, or other contributions of all kinds, e.g., in newspapers and magazines, books, films, photos, Internet blogs and forums, legal briefs of lawyers within legal proceedings, or private letters and conversations. Automatically, freedom of expression determines the legitimacy of certain communications within our society. In recent years, contributions of private persons on the Internet (e.g., in social media, rating portals, forums, or blogs) have moved into the focus of press law and freedom of expression.
Important principles of press law
Press law is based on Art. 5 sect. 1 of the German constitution (GG). Art. 5 GG secures the freedom of expression, the freedom of the press, and the freedom of broadcasting and film.
Most legal issues with respect to press law and the freedom of expression arise from a conflict between these rights and personality rights. Art. 2 sect. 1 in connection with Art. 1 sect. 1 GG is the basis of the general personality right. The general personality right protects every person with respect to his/her public, social, private, and intimate actions, including human dignity and personal honor. The general personality right protects not only natural persons, but also companies (e.g., corporations) and associations.
Whenever there is a conflict between any kind of expression and personality rights, the first step is to evaluate whether such expression communicated a personal opinion or facts. Personal opinions are defined by a subjective relationship between the expression and reality. It is not important whether opinions are true or false. If a communication constitutes an opinion, such opinion will generally be protected under Art. 5 sect. 1 GG. As an exception to the rule, merely abusive criticism (where the expression is not intended as a contribution to objective discussion, but only to defame the person) and libel (e.g., according to § 185 StGB) are not protected. Factual claims, in contrast, must be true. Factual claims are determined by an objective relationship between the expression and reality. Their truth can be proved by evidence. The expression and distribution of false facts is not protected by the freedom of expression. In exceptional cases, even true factual claims can be illegal (e.g., true factual claims referring to intimate details or claims only intended to denounce a person in public without any public interest).
The principles of press law are not only relevant for the victims of such communication, but also for journalists and the media who must understand the limits of admissible expression. Journalists and the media must be cautious if the subject of an article is based on mere suspicion. It is clear that the media must be entitled to inform the public about suspected facts before such facts are proved to be true by courts. However, this requires that these facts be subject to special legitimate public interest and that the media has sufficient indications and a minimum of evidence that the facts are true. In addition, the media has to make clear that it is referring to a mere suspicion (e.g., a person is referred to as a “suspected offender”).
Important rights in press law
– Cease and desist
In the case of infringing expressions (opinions or factual claims), the victims have a right to ask the media to cease and desist from such expressions. This important claim ensures that no further violations will be made in the future. Generally, such claims will be made with a cease and desist letter. In such a letter, the offender is asked to sign a cease and desist declaration promising a sufficient contractual penalty in the case of further violations. If no such cease and desist declaration is issued, the victim can file for a preliminary injunction or lawsuit, asking the court to render such a cease and desist verdict. In the case of false factual claims, the burden of proof for the truth of the factual claims may be shifted to the person making the claims (according to § 186 StGB).
– Right of reply
In the case of infringing factual claims, victims have a right of reply against the media. The right of reply does not apply to infringing opinions. The right of reply is intended to secure a balance of power between the victims and the media. Generally, this must be done soon. Replies may only contain factual claims. Victims are not allowed to include opinions in their replies. Furthermore, replies may not contain criminal content. The formalities of the right of reply are very restrictive.
The right of revocation is stronger than the right of reply. Here, the media has to revoke its own statement as false. The revocation requires full proof of the falsity of the factual claims. Like the right of reply, the right to revocation can only be executed with respect to factual claims, not opinions (because no evidence of falsity or truth can be provided with respect to opinions).
If the media have distributed the infringing opinion or factual claim with fault (intent or negligence), the victim can ask for recovery of damages. What is important here is the recovery of immaterial damages. This, however, requires a serious violation of personality rights and a high degree of fault on the part of the media, and the recovery of damages must be unavoidable (ultima ratio) and without alternatives (such as revocation). The right of recovery of immaterial damages can be of importance with respect to the publication of infringing pictures (such as photographs) because no other alternatives (such as revocation) exist. In recent years, there have been many violations referred to as “revenge porn.” In these cases, individuals upload private or intimate photos of their ex-partners after the end of a relationship on the Internet as revenge. Courts have granted several victims substantial damages in such cases.
The law office of Dr. Hans-Jürgen Homann can advise you on all relevant questions and on drafting all the necessary contracts. I would be glad to talk to you about your legal needs