Interim injunctions, legal poison-pen letters, press law: some press spokesmen and communication managers consider this to be a "witches' brew". They do not want any of this as it interferes with their cosy relationship with editors and journalists. Chief executives, who get annoyed by media reports, often see this differently. They want to demonstrate that they can defend themselves. Both positions have their strong points. If you are too nice and allow yourself to be pushed around, you will not get far. However, if you constantly harass journalists with interim injunctions or criminal charges, you are treading on dangerous ground. You must expect that the media will one day take their revenge. The correct attitude would be to understand the legal possibilities as a possible tool, an effective option within the context of communication. Whether a legal contest would be profitable depends on the individual case. To correctly assess the prospect of success and take the correct decision one should at least know the legal options.
The right of reply provides an opportunity to contradict a report in the media. The counterstatement is a statement by the affected party regarding an already published untrue allegation of fact. An example: "On the 01 07 2011, an allegation was published on Page 27 of newspaper X that we accepted bribes from Y. This allegation is untrue. What is correct is that we did not receive any payments from Y."
Replies are permitted only to the allegation of facts, but not to the expression of an opinion. The following counterstatement is therefore inconceivable: "On 01 07 2011, it was alleged on Page 27 of newspaper X that our football team had played badly on Saturday. This is not correct. The team played well." Whether one is dealing with a fact or an expression of opinion is sometimes difficult to determine. One is dealing with a fact, if the statement is accessible to an investigation into its accuracy using means of evidence; however, if the statement has the character of a comment and an opinion, one is dealing with an expression of opinion.
The counterstatement is drafted by the affected party or his attorney. It is then sent to the opposing party with a request to immediately print it. This delivery must be done "without delay", which regularly means within a period of 10 days of becoming aware of the reporting. If the required counterstatement is not voluntarily printed, it can be enforced via a court order, if the formalities have been followed correctly. The Landgericht (Regional Court) in whose jurisdiction the media company is based, has jurisdiction. The falsehood does not have to be proved or substantiated. However, the counterstatement must also not be "obviously untrue". A considerable drawback of the counterstatement is that the reporting, to which one objects, must be repeated within the context of the counterstatement. The counterstatement therefore often attracts more attention than the original reporting. Sometimes the formulations are so formalistic that the counterstatement defeats the desired purpose.
The injunctive relief may halt the unlawful reporting that already took place or is imminent. It is therefore of specific practical importance. An injunction can provide fast and effective protection from imminent damage. The injunctive relief may address both unlawful texts and impermissible photos or film. The injunctive relief is available in the event of written reporting not only to protect somebody against false allegations of facts but – in cases of privacy invasion – also against the expression of opinion.
With a cease and desist order of the court a media company can be prohibited from distributing illegal content. The interim injunction actually only acts as an interdict against the media company that has already published or is about to publish something. However, the interim injunction can also play a big part in public relations. Referring to the already granted interim injunction, one can prevent other media from subsequent reporting. Equally, one can convince other media that the original reporting was false. Once an interim injunction has been granted it may cause corrective reporting in other media if it makes tactical sense. Because of the urgent enforcement in the injunctive process, the positive effects mentioned are quickly obtained both in cases of a cease and desist order and the counterstatement.
A rectification, i. e. a withdrawal or a correction, is the statement by the media company that the published article contained a false statement of facts. An example:
"On the 01 07 2011, we have published an allegation on Page 27 that person A accepted bribes from person B. This allegation is untrue. What is correct is that A did not receive any payments from B."
A claim for rectification is only valid in the case of false allegations of facts. There is no rectification in case of an expression of opinion.
The claim for rectification can only be asserted via a principal claim, not in interim injunction proceedings. The burden to produce evidence and the onus of proof of the false allegation of facts are on the applicant.
In practice, rectification statements are rarely seen. The reason is that they cannot be asserted in interim rectification proceedings but only in a principal claim. The rectification claim therefore is not well suited to the quick solution of a problem.
Damages for pain and suffering, damages and enrichment
The claim for damages is aimed at the replacement of losses actually incurred. A loss might consist of somebody losing his employment due to unlawful reporting, thus suffering from loss of income. Similarly, expenses for the prosecution and legal lawyer's fees are possibly recoverable. In the event of the commercial exploitation of personality rights, for instance for unapproved image advertising using the image of a well-known athlete, the aggrieved party may, according to case law, calculate a three-fold damage: It may assert the concrete damage including the loss of profit, the handing over of the profit gained by the newspaper or the so-called notional royalty. The LG Munich I granted Boris Becker, on the basis of a license analogy, damages of 1.2 million Euro for the unlawful depiction in connection with an advertisement. Associations and unions may be granted damages just as in the case of individuals.
The pecuniary compensation claim ("compensation for personal suffering") serves to compensate for intangible damage. According to case law, there is a claim to pecuniary compensation in cases of gross violations of the personal rights, if the damage cannot be compensated satisfactorily otherwise. The pecuniary compensation is based on the reasoning that – without such a claim – violations of human dignity and honour often remain unsanctioned with the result that the legal protection of the personality would suffer. The important aspects are satisfaction and prevention. Whether a gross violation of the personal rights has occurred depends on the circumstances, such as the affected private sphere, the long-term effects of the damage, the cause and motive of the tortfeasor and the degree of its culpability. The recently awarded amounts – depending on the severity of infringement - range from approximately 5,000 Euro to 400,000 Euro in particularly blatant infringements.
A claim on account of unjust enrichment may exist if an image, a name or other personality rights (for instance the voice) are commercially utilized without permission. To name an example, a famous goal keeper was granted compensation because a photo, which showed him from the back standing in the goal, was used for an advertisement for television sets.
Complaint before the Press Council
In the event of violations against the Press Standards it is possible to file a complaint with the Press Council. Anybody may complain to the Press Council against newspapers and magazines and, since the 01 01 2009, also against journalistic and editorial contributions from the internet provided it does not concern broadcasting. Associations and unions are also entitled to complain. The complaint is free of charge. However, in practice, the complaint is of little relevance.
We only rarely recommend the initiation of criminal investigations. Investigation proceedings for libel or defamation (Sections 185 et sequ. StGB – criminal code) usually take too long and rarely end in a conviction.
When proceeding against media reports that violate personal rights, strategic considerations play an important part beside the legal and procedural aspects. How and where interim injunctions are enforced or principal legal proceedings instituted is one aspect, the other, which available steps are taken if any at all.
The consideration starts with the important question: What is the prospect of success? Cases that are likely to be lost should not be conducted. This sounds trite, but in practice it is often difficult to talk irate parties out of lawsuits which they will not win. However, there are also proceedings that are certain to be won but should still not be conducted. There are many reasons for this: Mainly, because the lawsuit attracts new media attention. Or because a dangerous opponent is being "trodden into the ground" to such an extent, that he/she will inevitably "take revenge". However, often one has to go to court: If the reporting is false or taken up by other media. Equally, if the reporting causes persistent damage, a clear indication of defence must usually be given.
Each case is different and requires specific strategies. Diverse problems need diverse problem-solving approaches. Legal steps are always an important option, but not in all cases the correct means.