Protecting company personality rights

Company personality rights

Here is an overview of the best legal action to take in Germany in order to protect company personality rights.

Cease and desist

The most important remedy for an infringement of company personality rights is that of cease and desist. The remedy can be pursued using an out-of-court warning letter or through initiating injunction proceedings. It is one of the most commonly used methods of asserting a company’s personality rights, as it is provides quick and effective legal protection.

The cease and desist remedy can be utilised to pursue existing infringements or to prevent a future occurrence of the infringement.

The legal basis for the cease and desist remedy derives from § 823 sub-paragraph 1, together with § 1004 of the German civil code (Bürgerliches Gesetzbuch, BGB).

Compensation / damages

Under § 823 sub-paragraph 1 BGB a company’s personality rights fall within the definition “other rights”. A company can invoke this paragraph if it discovers an infringement of its rights and it can demand compensation for any damage (pecuniary loss) caused. Damages for non-pecuniary loss can also be claimed under § 253 BGB and would most likely take the form of financial award.

Right of reply

A company which suffers damage due to an infringement of its personality rights has the right to publish a reply. In this way the company can make its position on the matter known to the public. However, the courts will not assess whether the original statement was true or untrue. The right to publish a reply can be asserted by bringing injunction proceedings.

Retraction and clarification

The right to clarification is not regulated by judge-made case law. It is commonly referred to as a “right to retraction”.

Under this rule a person who has published an untrue statement is obliged to correct that statement and to retract the incorrect assertion of fact. The result is that the untrue statement is treated as though it never existed.

Right to receive information

In order to be able to bring a claim, an injured party must be able to obtain information on the precise content of any published statements and how widely they have been publicised.

Where the internet is concerned, it can be difficult and costly to establish how widely a statement is published. The same is true for the countless forums and commentary functions.

An injured party can use the right to disclosure to help establish the extent of a publication and thus to define the parameters of a claim.

Deletion

By the time an infringement comes to the attention of an injured party, the statement concerned will have often already been published. In such cases, an injured party can demand that the publication be deleted immediately. The demand can be in any form and need not be in written form.

Where a false statement is published in the traditional print media, an injured party can demand that copies of material containing the false statement are withdrawn.

We are here to advise you on the optimal course of action.

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Do you need to protect yourself or your company personality rights? Do you need to defend yourself against damaging publications? Or perhaps you simply have general questions of the right to free speech and rights of the press? We are here to help!

German lawyer Christian Solmecke and his expert team are available to answer your questions. Call us on +49 (0) 221 / 951 563 0.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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