Art 5 of the German constitution encompasses the right of the press to contribute towards the formation of public opinions. § 3 of the North Rhine Westphalia Press Act goes further and places the press under an obligation to contribute to the formation of public opinions.
Derived from this legislation is a right for the press to report on still unproven allegations.
This privilege is not enjoyed without restrictions!
There is a danger that the reporting of allegations can lead to prejudgement by the public. For this reason and the protection of those persons who are the subjects of such reports, the courts place strong requirements on the press before they may report on allegations.
The main requirements are:
- Informative value and public interest
The press may only report on a crime or other reprehensible activity where it is in the public’s interest to be kept informed. Whether such a report is in the public’s interest depends on the seriousness of the alleged crime or activity, the level of public exposure and the relative position of the accused in society. For example, it would be in the public’s interest to be kept informed if a politician stands accused of fraud.
- Minimum level of evidence available
There must be a minimum level of evidence, a prima facie case, linking the accused to the alleged conduct. However, even where there is some doubt, publication of the report may still be permissible.
The fact that the report concerns allegations must be made clear to the reader. The publication of an unproven allegation as a fact should not be tolerated. If this occurs, the victim should contact a lawyer immediately in order to limit any financial and reputational damage.
- Duty of care
The requirements for a journalist to exercise care vary depending on the facts of the specific case. In particular, a court would assess how far the report infringes a person’s rights and how deep the consequences are for that person. The heavier the infringement is, the higher the duty of care incumbent on the reporter. In certain circumstances the victim will be given the opportunity to publish an opinion on the matter.
However, a victim must also tolerate certain publications. A professional journalist will be under a higher duty of care, for example, than a non-professional such as “hobby blogger”.
As the duty of care owed varies according to the facts of each case, it is advisable to seek legal advice before pursuing a matter.
It should not be a consequence of reporting an allegation that a victim is prejudiced in the eyes of the public. That is why incriminating, one-sided reports are forbidden. The press must present a balanced argument. Where there are incriminating statements, there must also be exonerating statements.
In addition to statements made by the media, claims can also be brought against public authorities for statements made which breach the presumption of innocence contained in Article 6 of the European Convention on Human Rights. Such statements are no longer protected by § 4 NRW Press Act.
Do you need to protect yourself or your company from personality right infringements? 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.