Frequently Asked Questions

FAQ

  • Claims & Strategies
  • Counterstatement
  • Injunctive Relief
  • Rectification
  • Damages & Enrichment
  • Press Complaint
  • Criminal Charge
  • Strategic Considerations

FAQ

Claims and Strategies in Media Law

In­junc­tions, cease and de­sist let­ters:

Some PR spe­cial­ists do not want any­thing to do with this as it in­ter­feres with their nice re­la­tion­ship with ed­it­ors and journ­al­ists.

Chief ex­ec­ut­ives, who are 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 be taken ser­i­ously. However, you must ex­pect that the me­dia will take re­venge if you start leg­al ac­tion.

The leg­al pos­sib­il­it­ies must be un­der­stood and im­ple­men­ted as an ef­fect­ive op­tion with­in the con­text of com­mu­nic­a­tion. To cor­rectly as­sess the pro­spect of suc­cess and take the cor­rect de­cision, one should at least know about the leg­al op­tions.

Counterstatement/​Ge­gen­dar­stel­lung

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 30 03 2020 news­pa­per X 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 against the pub­lic­a­tion of facts, but not to the ex­pres­sion of an opin­ion. The fol­low­ing coun­ter­state­ment is there­fore in­con­ceiv­able: "On 30 03 2020, it was pub­lished 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.

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, the pub­lic­a­tion 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.

However, a coun­ter­state­ment can be a good choice if the ori­gin­al art­icle was amonced on the front­page. The coun­ter­state­ment has to be prin­ted on the front­page in com­par­able size to show all po­ten­tial read­ers that the story was ori­gin­ally wrong.

Counterstatement, Frau im SpiegelCounterstatement, Monaco

Injunctive Relief

The in­junct­ive re­lief may stop or pre­vent un­law­ful re­port­ing. 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 com­mu­nic­a­tion. 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.

Rectification/Wi­der­ruf

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 30 03 2020, we have pub­lished on Page 27 that A ac­cep­ted bribes from B. This al­leg­a­tion was un­true. 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.

In prac­tice, rec­ti­fic­a­tion state­ments are rarely seen. The reas­on is that they can­not be en­forced 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.

Rectification, SwedenRectification, Frau mit Herz

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.

The pe­cu­ni­ary com­pens­a­tion claim ("com­pens­a­tion for per­son­al suf­fer­ing") serves to com­pensate for in­tan­gible dam­age. 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.

Damages & Enrichment, Princess Madeleine wins German libel awardDamages & Enrichment, Swedish Princess gets hefty payment from German press

Complaint before the Press Council

Any­body may com­plain to the Press Coun­cil against news­pa­pers and magazines that vi­ol­ate per­son­al rights, and, since the 1st of Janu­ary 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.

Criminal Charge

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.

Strategic Considerations

When pro­ceed­ing against me­dia re­ports that vi­ol­ate per­son­al rights, stra­tegic con­sid­er­a­tions play an im­port­ant part be­side the leg­al and pro­ced­ur­al as­pects. How and in which court in­ter­im in­junc­tions are en­forced or leg­al pro­ceed­ings star­ted is one as­pect, the oth­er as­pect is, 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 tried. 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 tried. 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.

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