Facts
The plaintiff had been a city official and director of the city’s Office for Foreigners. In this capacity, he granted residence permits to a number of Syrians who, it emerged, were planning terrorist activities in the Federal Republic. The State Prosecution Authorities decided to investigate the plaintiff’s conduct on the suspicion that he had taken a bribe. The investigations were carried out on behalf of the city authorities … by the Federal Office of Criminal Investigations (BKA). This body produced its final report in April 1983. After further investigations, the State Prosecution Authorities began proceedings against the plaintiff in January 1985. The Landgericht and the Oberlandesgericht, as the appellate court, rejected the charge at a preliminary stage, refusing to allow it to be taken to trial. A key sentence in the decision of the LG which was approved by the OLG ran as follows: ‘Above all there is absolutely no evidence which could form the basis at trial of proof of payments of money to the accused in exchange for certain actions which were in breach of his conditions of service.’

The defendant is the publisher of a major news magazine. In its issue of 21 February 1983 an article appeared concerning the plaintiff under the title ‘In the Foreigners’ Office there is lively trade in illegal residence permits. Amongst those who have benefited from this are Syrian terrorists.’ The article contained a picture of the plaintiff with the sideline: ‘Suspended Office Director—did he know about the terrorist activities?’. The text of the article began with a paragraph about a ‘three-man Syrian commando group’ and its tasks. Then it continued: ‘Commando chief F knew his way around the border city in North Rhine-Westfalia. For Marks 3000, he bought himself a thirteen-month residence permit …’. Later-on in the article appeared the following statement: ‘An internal enquiry conducted by the Federal Office of Criminal Investigations (BKA) is investigating how the applications came to be made and the permits granted’. A Director of Criminal Investigations had informed the Federal Office for the Protection of the Constitution, the Federal Information Service, the Interior Ministry, and the criminal authorities of the Land, that ‘the Syrian terrorist R had been able, using intermediaries, to obtain a residence permit from the Foreigners’ Office in Aachen for a payment of DM 300 before his arrival in Germany.’ The article went on a few lines later: ‘In fact, when a raid was conducted at the offices, documents about the expelled Syrians R and A were discovered. The Director had once more granted the permits personally. Whether he knew of the terrorist activities of both Syrians is not yet known.’ The plaintiff brought an action claiming that he was innocent of the accusations and that the article represented a serious invasion of his general right of privacy. He claimed damages for pain and suffering of at least DM 10,000, plus interest.
The LG rejected the claim. The plaintiff’s appeal was successful for the following

Reasons:

1. The defendant publishing company published a picture of the plaintiff, identified him by name, position, place of work, and age, and also alleged that he provided residence permits in return for money in his capacity as Director of the city’s Foreigners’ Office. This insulting allegation is to be considered under § 823 II BGB, read in conjunction with § 186 of the Criminal Code. It is not covered by the defence of legitimate interest (§ 193 of the Criminal Code). The allegation is also to be seen as untrue, since the plaintiff asserts this point and the defendant, who carries the burden of proving that the allegation is true, has not been able to discharge it, nor will he be able to do so following the result of the criminal proceedings. The defendant has further infringed the plaintiff’s right to his own image (§ 22 KUG) and thus committed a tortious act within the meaning of § 823 I BGB. The question whether a picture of a city official who is suspected of bribery but for which there is no proof, is a picture in the ‘public domain’ (§ 23 I Nr. 1 KUG) [and thus a defence under this Act] need not be decided. For in any case the defendant has infringed a legitimate interest of the plaintiff within the meaning of § 23 II KUG in so far as it published the picture together with the improper text. The picture and text together represented a publication which claimed that the plaintiff was guilty before he had been judged by the competent criminal court and, consequently, infringed the general right of privacy in the form of the presumption of innocence guaranteed by Art. 6 II of the European Convention on Human Rights.

2. The words accompanying the text requires closer scrutiny.

(a) This contains the allegation that the plaintiff has taken bribes and gives details of this allegation. It is to be found in the headline itself, which talks of a lively trade in residence permits within the Office for Foreigners. Although the headline does not use the plaintiff’s name, the reader is nonetheless alerted to his identity by the picture and the sideline that accompanies it. This contains his name and then asks the question whether he has been aware of the terrorist activities. It is presumed that all along he was responsible for the ‘trade in residence permits’, and the only doubt that is allowed is related to whether he knowingly took bribes from terrorists. According to the standard established by the OLG (AfP 1976, 132), the headline contains a separate statement. It represents a brief report which is intended to make the reader curious about the text that follows but which is capable of independent evaluation, particularly if taken in conjunction with the picture and the picture sideline. Consequently, it can be expected that readers will have relied on this brief report. Of course it is possible to assume that the average reader of the magazine will be a careful and critical reader. However, it is unrealistic to assume that, given the quantity of information offered by each issue of the magazine, readers will only ever read the headlines in conjunction [emphasis added] with the full text which accompanies them. The allegation in the headline is, moreover, formulated in such a way that the meaning it conveys can no longer be altered by the rather weaker comments made in the text. Such a text would, at most, be a contradiction of the headline.

However, there is in fact no contradiction between the headline and the text. The text contains what is promised by the headline, provided one does not only read those comments which could be put forward to support the defendant’s case, but rather reads it in context.

Immediately after the alarming warning that a Syrian terrorist commando armed with explosives has penetrated the Federal Republic, comes the news that the commando chief R is very familiar with the border city in North Rhine-Westfalia, and has bought himself a thirteen-month residence permit for DM 3000. The fact that the ‘seller’ was the plaintiff is suggested not only by the headline, but also by the picture and the sideline that accompanies it since the linking element is the ‘Syrian terrorists’ and the ‘terrorist activities’. In this way the idea of a ‘lively trade’ is fleshed out with these details.

Later in the article the same events are related in a different form. A Director of Criminal Investigations at the BKA had ‘informed’ the Office for the Protection of the Constitution, the Federal Information Office, and the criminal authorities of the Land that the Syrian terrorist R had obtained a residence permit with the help of intermediaries at the Office for Foreigners having paid them DM 300 before he entered the Federal Republic. This is apparently one and the same set of events which are referred to in the two quite separate parts of the text. The attentive reader will recognize this fact, even though in the second discussion the Syrian is referred to by only one of the three parts of his name and the DM 3000 is reduced to DM 300, perhaps as a consequence of an oversight. The text employs in this instance a different method of relating the story, compared to the account of the same facts in the earlier part of the article. Whereas in the headline and the earlier part of the article the perspective is that of an author who is precisely informed about the events and who is establishing what has occurred, here it is the Director of Criminal Investigations who is the mouthpiece. It would be quite wrong to conclude from this that the author and the defendant have done no more than communicate, in an impartial manner, a few details from amongst the many uncovered by the investigations. That would contradict not only the clear meaning which is given to the article by the headline and the first paragraphs, but is also something which is denied by the defendant itself. For the telex sent by the BKA Director is announced as an internal communication on the part of the BKA which ‘reveals’ the ways in which the applications came to be made and the permits granted. And revealing means exposing what actually occurred. The style of presentation chosen thus gives the impression that the defendant is only alleging later in the article what the Director has ‘stated’. The figure of the ‘Director of Criminal Investigations’ thus lends an appearance of authenticity to the allegation.

The fact that it was the plaintiff, himself, who was involved in the trade in residence permits and not, for example, another employee of the Office for Foreigners is made clear once more. For, not only is he presented as the Director of the Office for Foreigners who [personally] made the decision on 70 to 80 per cent of the applications made by Arabs; but also that the documents pertaining to the Syrians R and A were discovered when his offices were raided by the police; the Director, once more, granted the permits personally.

The fact that the Syrians R and A, who are both terrorists, are mentioned in the same context gives the reader the impression that both R and A bribed the plaintiff.

The allegation that the plaintiff had taken bribes from Syrian terrorists is in no way diminished or weakened by another statement contained in the article that the State Prosecution Authorities are conducting, with the support of the BKA, a wider criminal investigation against a further eleven defendants for bribery, corruption and breach of the Act on Foreigners, and that these defendants included the previous Director of the Foreigners’ Office. This part of the text may be unobjectionable since, while it identifies the defendants, it does not prejudice their cases. However, it does not have the effect of reversing the content of the whole of the rest of the article by stating that the investigations are yet to reveal whether the plaintiff has in fact committed the criminal offences of which he is accused.

In fact, the shadow is further cast on the plaintiff as a result of a further statement that ‘the investigators thought’ that, beyond the permits granted to the Syrian terrorists A and R, the plaintiff may have received further payments of between DM 500 and 3000 per permit ‘generously’ granted to other Turks, Iranians, and Syrians. Of course, this in no way revokes or qualifies the allegation regarding bribery by the two Syrians. What must be assessed is whether the author and the defendant are not themselves adopting what the investigators ‘believe’ in the same way that they allowed the ‘Director of Criminal Investigations’ to speak for them. This point should not, however, be regarded as being at the heart of the decision, for it is not relevant to the decision.

The LG based its rejection of the claim principally on the fact, also referred to by the defendant in its defence, that it was apparent from the article that the plaintiff was still being investigated but that his guilt was not yet definitively established. It is true that the article does not refer to a completed process of investigation, and so does not state that it can with certainty be expected that the plaintiff will be found guilty. This, however, is not the issue. What is decisive is that the defendants in some parts of the article makes allegations about the guilt of the plaintiff with the—understandable—encouragement to the readers that they should believe them. Furthermore, these allegations are made without any reference to the fact that (first) the plaintiff contested his guilt or (secondly) to the points which he was putting forward in his own defence.

(b) The defendants did not act in the defence of legitimate interests.

(aa) They did not examine with necessary care the truth of its allegation. On the contrary they made this allegation despite having insufficient information at their disposal. In their written statements the defendants relied upon the following matters:
– a criminal investigation was being conducted into the plaintiff’s activities in 1982 on the grounds of suspicion of bribery;
– the investigations were conducted not only by the state prosecuting authorities but also by the Federal Office of Criminal Investigations (BKA);
– the plaintiff was removed from his position as Director of the Foreigners’ Office and moved to another office;
– he was later (although after the appearance of the article) temporarily suspended from office.

The defendants could have reported all these matters without infringing the duty to check the truth. These matters did not represent, however, the basis for alleging that the plaintiff had been bribed by Syrian terrorists and for fleshing out this allegation with further details.

During the litigation, the defendants did not say what other information they had at their disposal. The article indicates that the defendants had succeeded in discovering certain details from the investigation documents. It must be doubted whether ‘the investigating authorities’, that is the state prosecuting authorities or the officials of the BKA, had told the defendants what they ‘believed’. The final report of the BKA was not yet available. As the decision of the Chamber in Case No. 15 U 177/85 indicated, it was only completed in April 1983. After the report was issued, the state prosecuting authorities continued their investigations for a further two years before they decided to initiate criminal proceedings, which eventually were not allowed to develop into a full trial. As it appears from the decisions of the LG and the OLG which did not allow the case to go to full trial, there was no proof in the form of witnesses or documentary evidence of the allegation that the plaintiff had taken money. The defendant should have concluded, from what it read in the investigation documents, that the grounds for suspicion were not sufficient in order to allege publicly that the plaintiff had been bribed by Syrian terrorists. Once the criminal proceedings were brought, the defendant could have reported these (i.e. the nature of the charges).

In circumstances where the investigatory authorities are considering in depth the suspicion that a criminal act has been committed, and that point is not contested by the defendant but rather confirmed, the duty incumbent upon the media to check the truth of what they report does not allow them to elaborate the grounds for suspicion which they have not gleaned from their own research, but merely derived in a partial and fragmentary manner from the documents relating to an investigation into specific allegations about the guilt of the person in question. This is no longer a case where the media is trying to rouse the awareness of the public in order to bring the truth to light. Consequently, it can only be said that there is a legitimate public interest in the information in so far as the public should be informed of the investigatory activities of the authorities, which was one of the issues covered by the defendant in a short paragraph in its article. To run ahead of the investigating authorities and to communicate its own conclusions from the investigations, even before the authorities have themselves formed a final conclusion, includes a significant risk of misinformation without a corresponding recognisable utility in the provision of such information even though it might be more attractive for readers to be given definite results rather than questions and problems.

Even where an investigation is still in the process of being conducted, there may be situations in which the media may go beyond the information provided to them in this context. This would be the case, for example, where the media are criticising the authorities for dragging their feet in an investigation, or where they are objecting to the presence of irrelevant influences upon the investigation, or the withholding of certain evidence. None of these factors apply here. The defendant only sought to publish the information which it had discovered from the investigation documents and which it had prepared in its own way for publication.

The defendant may not derive a defence from the fact that after extensive further investigations the state prosecuting authorities did decide to bring proceedings against the plaintiff and in fact did seek to claim that the plaintiff was guilty of the acts which the defendant had earlier ‘established’. At the time of the publication of the article these allegations were not allowed to be made. Nor is it permissible from today’s perspective to repeat them. The intervening time is irrelevant.

Should these arguments be considered incorrect, it is likewise possible to argue that the defendant did not act, from a wider legal perspective, in the defence of a legitimate interest.

(bb) The standard which governs press, radio, and television reports of criminal activities which certain (identified) persons are said to have committed, where these persons are the subject of criminal investigations, is increasingly the standard of the ‘presumption of innocence’ [references omitted]. The presumption of innocence is a principle recognised in all states which adhere to the rule of law, and it has been defined more precisely in Art. 6 II European Convention on Human Rights (ECHR). This provision is applicable law in the Federal Republic. The addressees of this provision are, inter alia, criminal judges and the investigation authorities, which, for example, must exercise a corresponding degree of caution when making statements to the press; the media are not covered by this provision. However, the effects of the presumption of innocence extend into the realm of privacy and demand that this right is formulated in such a way as to protect the presumption of innocence and that consequently the presumption of innocence is seen as a protected interest for all persons. If the right of personality is understood in these terms, it places limits upon reports of criminal activities, as a counterbalance to the freedom of the press. It was in this sense that this court applied the presumption of innocence in its earlier decision (AfP 1985, 293) which considered proceedings brought by the same plaintiff against another newspaper.

Under Art. 6 II ECHR the presumption of innocence operates in favour of the ‘accused person’. This phrase should not, however, be understood in a strictly technical sense as it is under the rules of criminal procedure. Undoubtedly a suspect is also covered by this provision. Furthermore, the practice of the European Court of Human Rights would appear to cover also an accused person (‘Beschuldigter’) as defined by the rules of criminal procedure (see Peukert, EuGRZ 1980, p. 260 who argues that the presumption of innocence should also apply in the preliminary proceedings). In any case, there is no cause for regarding the presumption of innocence, as one aspect of the general right of personality, as arising only once the proceedings themselves begin, since the particular need for protection of a person subject to criminal investigation, who will be required to defend himself in criminal proceedings, arises already at an earlier stage of the procedure, in particular because prejudgments made by the press can have an effect beyond the official inquiries. The plaintiff, who was a person under suspicion at the time when the article was published, was therefore under the protection of the presumption of innocence. This has the effect that when the press alleges the guilt of such a person, and base that allegation on substantial grounds of suspicion, it will not itself be acting on the basis of a legitimate interest. It even follows from the presumption of innocence that such allegations are unlawful right up to the time when the criminal court makes its decision, regardless of whether they are true or untrue. The civil law cause of action which forms the basis for resisting prejudicial statements is consequently to be derived from §§ 823 I and 1004 BGB. A reason for such a strict application of the presumption of innocence can be found inter alia where the criminal proceedings are not yet concluded and where the proceedings are for an injunction or for some other form of interim order. The fact that the question of truth is irrelevant means that the person who has undermined the presumption of innocence cannot bring evidence that the person who is subject to investigation is in fact guilty. This prevents a situation in which parallel and competing investigations into the guilt of that person are undertaken in the context of the civil and criminal proceedings; it also prevents the judge in the civil proceedings coming to a different conclusion to the criminal court.

Where, however, the criminal proceedings conclude, as here, in favour of the accused, whether he is found not guilty or whether the proceedings never come to trial, then there are no grounds for not including the question of truth. An untrue presumption of guilt constitutes a particularly serious breach of the presumption of innocence. Only on this basis can the severity of the invasion of the right of privacy be evaluated. The appropriate provision for such a case, which is a lex specialis vis-à-vis § 823 I, is therefore § 823 II BGB read in conjunction with § 186 of the Criminal Code; from this conclusion follows a reversal of the burden of proof. The presumption of innocence must be assessed as a matter of law in the context of the defence of legitimate interests and must therefore be evaluated against the fundamental principle of the freedom of the press; this evaluation will generally result in the conclusion that the press is not acting in the defence of legitimate interests where it is alleging the guilt of the person under investigation.

There may be exceptions to this principle where there are circumstances of particular urgency which influence the conduct of the press. For example, those cases which were mentioned above as regards the question of qualifications of the duty to check the truth of statements could be repeated here. However, it must be stated that in this case there are no grounds for recognising an exception. The defendant did not act in the defence of legitimate interests when it alleged that the plaintiff had been bribed by Syrian terrorists.

3. The tort committed by the defendants represents a serious breach of the right of privacy, which justifies the award of damages for pain and suffering under § 847 BGB. The effects of the breach were serious for the plaintiff. This is all the more so since, apart from the words and text, he was exposed to public scrutiny and a negative judgment by the public as a result of the publication of his picture. This makes the interference with the right of privacy more serious than it would have been had it involved the mere citation of a person’s name. Also, the fault of the defendant, or more precisely the negligence of those who acted on their behalf, is also to be seen as gross. This is the case because its actions went beyond those laid down in No. 12 of the Press Code established by the German Press Council, which is to be seen as the correct measure of journalistic care. The interference suffered by the plaintiff cannot be made good by any means other than the award of damages for pain and suffering. The short report printed in the ‘Rückspiegel’ in Issue No. 20/86, which stated that the OLG had finally rejected the admissibility of the proceedings had only a very small compensatory effect.

4. The defendants are responsible for the unlawful and negligent acts of the persons who acted on their behalf. In the case of this article, the story was of a highly sensitive nature, and a constitutionally appointed representative under § 31 BGB should have been required to check it, for which the defendant is unconditionally liable. § 31 BGB is applicable to Kommanditgesellschaften. It is not clear whether this control actually took place. If it did not, then the fault of the defendants lies in an organisational failure for which the defendants are responsible by virtue of § 823 BGB. In addition, the defendant is responsible for the departmental editor under § 831 BGB.

5. Damages for pain and suffering in the amount of DM 10,000 appear to be appropriate in all the circumstances.

Subsequent Developments

Comment on OLG Köln NJW 1987, 2682 (15 U 39/87)

The magazine “Spiegel” published a picture of the director of the Foreign Office in the city of Aachen. The text of the article was assuming that this director gave illegal residence to two Syrian terrorists, accepting bribes from them. Two elements have to be stressed. First, the claim of the plaintiff (the director) was aimed at £ 3,220. This is a rather low amount considering similar claims in other countries. The reason for this is that the former § 253 BGB (meanwhile revised) generally prohibited financial compensation in these cases, so that every successful claim needed a rather careful reasoning (No. 3 in the decision).

Second, the decision tries to apply the in dubio pro reo rule on the relationship between media and suspect. Going beyond § 195 StGB (Criminal Code), which only requires a publication in favour of legitimate interests, the Court finds in Art. 6 II ECHR (in dubio pro reo) a rule that forces the press – certainly taking into consideration the power of major magazines – to gain almost full proof before they suspect anybody of committing a crime.