HEADNOTES:

1. The basic right of freedom of the press (Art. 5(1), second sentence, GG) also guarantees the confidentiality of the work of newspaper and magazine editors. The reach of this protection can, however only be determined in a given case once the limits on the basic right have been taken into consideration.

2. a) The publication of illegally obtained or acquired information is covered by the protection of freedom of opinion (Art. 5(1) GG). Here as well, the scope turns on the limits on the basic right.
b) In cases in which those publicizing the information obtained it unlawfully by deception and with the intention of using against the party deceived, such publication is in principle prohibited. The only exception to this is when the significance of the information for informing the public and for the formation of public opinion clearly outweighs the detriments for those affected and for the legal system accompanying the violation.

3. On the significance of the basic right of free expression of opinion (Art. 5(1) GG) for the evaluation of derogatory statements in the public contest of opinions.

Order of the First Panel of 25 January 1984 -- 1 BvR 272/81 --
in the proceedings on the constitutional complaint by Axel Springer Verlag AG, represented by Peter Tamm, Kaiser-Wilhelm-Straße 6, Hamburg 36; agents: 1. Professor Dr. Peter Lerche, Junkerstraße 13, Gauting; 2. Dr. Oliver C. Brändel and Dr. Eilert Osterloh, Rittnerstraße 81, Karlsruhe 41; against: a) the judgment of the Federal High Court of January 20, 1981 -- VI ZR 162/79 --, b) parts of the judgment rejecting the lawsuit by the Hamburg Hanseatic Regional Appeals Court of May 10, 1979 -- 3 U 197/78 --

DECISION:

The judgment by the Federal High Court of January 20, 1981 -- VI ZR 162/79 --
violates the Complainant's basic right under article 5(1), second sentence, of the Basic Law, insofar as it dismissed the Complainant's lawsuit to stop publication of the description of an editorial conference (Petition 1). This judgment is hereby quashed. The matter is referred back to the Federal High Court.

In all other respects, the constitutional complaint is rejected.

The Federal Republic of Germany is hereby required to reimburse the Complainant one-half of the necessary expenses.

EXTRACT FROM GROUNDS:

A.

The constitutional complaint basically relates to the question of whether a civil-court decision is compatible with the basic right of freedom of the press when the former condones the publication of information stemming from the editorial area of an organ of the press that was acquired by an individual through deception as to his identity and intentions.

I.

1. The Complainant here and in the proceedings below is a large publishing company organized in the form of a stock corporation. Among its publications is the "Bild" Newspaper. Günter Wallraff, respondent in the proceedings below, is the author of a book published in 1977 entitled "Feature Story -- The Man Who was Hans Esser at the 'Bild", in which he dealt critically with journalistic methods, editorial work and the contents of the "Bild" Newspaper. In order to procure information for the planned publication, Wallraff changed his appearance and had himself hired by the Complainant under the pseudonym "Hans Esser". In the period from March to July 1977, he worked as a journalist in the Editorial Office of the "Bild" Newspaper in Hannover.

In the preface to the book, Wallraff wrote: "However, nothing was invented or added. Some statements and dialogue were written down as they occurred, others in protocols made at the end of the workday. These usually appear in the book as direct speech, even when they are not always completely literal, in order to reveal directly their exemplary character."

2. a) The Complainant applied for numerous prohibitions against various passages of the book. In the proceedings below, it sought to stop the publication of several of these:

Petition 1) refers to the description found on pages 24 to 26 of the contents and course of an editorial conference at which, in an everyday manner and without mention of the source of information, topics for the next edition were discussed; the statements by the participants are reproduced in direct speech.

Petition 2) is directed against the report of a feature story that Wallraff was to write at the order of his chief reporter about adolescents in pinball parlors. After informing him by telephone that he had only encountered unemployed youth who had repeatedly applied for work without success, the chief reporter's answer, reproduced on page 73, was literally quoted as follows: "Forget about it, . . . come on back, whatever you do, don't make a social issue out of it! I've got a real enchanting topic for you: We've got material here from Stuttgart. You've gotta Hannover-ize it. Have a look around the city for one of the most beautiful garden dwarfs. The garden dwarf is celebrating its one-hundred-year anniversary; I'll give you addresses for a couple of garden equipment shops, take a picture and then come back here."

Subject of Petition 3) is the reproduction on page 75 of a portion of a report prepared by Wallraff on the abovementioned pinball parlors, including the handwritten changes made by the chief reporter in the Editorial Office. The caption to the picture reads: "I delivered the pinball manuscript. Sigi Trikoleit added quotes with his own hand."

Petition 4 a) relates to pages 91-92, where Wallraff asserts that the treatment of "political topics" was nearly the sole responsibility of one particular editor. "And this was the manner in which they were dealt with. It was the house bible of the CDU. Trade unions, employee councils, work conflicts, and other similar topics are non-existent during my four months at the BILD. Only in the event of strikes is something so 'outrageous' made a topic. But you can be sure: the employers are in the right!"

Petition 4 b) refers to Wallraff's comments on page 126 of the book. Here, he states that the "Bild" Newspaper feels compelled "to bring rightist politics also to the SPD voter, to workers and employees." Politics, he says, must therefore be accomplished indirectly, "via emotions and prejudices: campaigns against minorities, stirring up hatred and fear -- ideally, by way of seemingly unpolitical objects (rapists, guest workers): This creates the atmosphere for writing about the collective cry for the death penalty, headbashing, kick in the ribs. Strauß and Dregger are merely the fruits of the tree of sound, civil reaction. The garden in which this tree is located is the BILD Newspaper."

b) The Higher District Court admitted the lawsuit in its entirety. In Wallraff's appeal, the Regional Appeals Court dismissed Petitions 2) and 4 b), confirming on the other hand his conviction under Petitions 1) and 3). With regard to Petition 4 a), it did not reach a decision, since the matter was held to be not ripe for a ruling.

c) The Federal High Court rejected the subsequent appeal by the Complainant; in Wallraff's appeal, it quashed the attacked decisions to the extent that they had admitted the Petitions and also dismissed the lawsuit (BGHZ 80, 25).

The question of whether and to what extent the Complainant could prohibit the passages objected to in Application 1) can, said the Federal High Court, only be answered by balancing rights and interests on the basis of the given circumstances in the case at issue, whereby in particular the Basic Law's decision as to values in favor of freedom of opinion must be taken into consideration. This applies both to the tortious claims under §§ 823(1) and 826 of the Civil Code and to the particularly significant contractual claims of the Complainant. . . . (elaboration of the grounds of the Federal High Court's decision)

II.

By way of constitutional complaint, the Complainant attacks the judgment by the Federal High Court, as well as parts of the judgment by the Regional Appeals Court rejecting its lawsuit in the proceedings below.

. . . (elaboration by the Court)

III.

With regard to the constitutional complaint, statements have been submitted by the respondent in the proceedings below, Wallraff, and by the Federal Association of German Newspaper Publishers, the Association of German Magazine Publishers, the German Association of Journalists and the German Journalists Union of the Printing and Paper Trade Union.

1. In Wallraff's view, the attacked decisions do not violate the Complainant's basic rights. . . . (elaboration by the Court)

2. The Federal Association of German Newspaper Publishers considers the judgment by the Federal High Court to be incompatible with the basic right of freedom of the press. . . . (elaboration by the Court)

3. The Association of German Magazine Publishers likewise expressed reservations with regard to the ruling by the Federal High Court. . . . (elaboration by the Court)

4. The German Association of Journalists stated that it concurs in the ruling by the Federal High Court. . . .

5. As well, the German Journalists Union is of the opinion that the Federal High Court's judgment would withstand constitutional review. . . .

B.

The constitutional complaint is admissible. . . . (reasoning by the Court)

C.

To the extent that it dismissed the suit to stop the publication of the description of an editorial conference found on pages 24 to 26 of Wallraff's book (Petition 1), the attacked judgment by the Federal High Court violates the basic right of freedom of the press. Insofar as a decision was reached as to Petition 3), a violation of the basic right of freedom of the press cannot be ascertained. In all other respects, the constitutional complaint is not justified.

I.

The constitutional complaint is directed against civil-court rulings with regard to a claim for forbearance under civil law. The Federal Constitutional Court is not required to review the interpretation and application of civil-law provisions as such; its sole duty is to ensure that norms and standards of basic rights are observed by the ordinary courts (BVerfGE 42, 143 [148] -- DGB -- with further references). In so doing, the limits on its possibilities for intervention turn particularly on the intensity of the asserted impairment to basic rights: the threshold of a violation of objective constitutional law, which the Federal Constitutional Court is required to correct, is reached when the decision of civil courts evidences errors in interpretation that result from a fundamentally incorrect appraisal of the significance of a basic right -- in particular, with regard to the extent of its protective scope -- and whose substantive importance is also of some weight for the case at issue (cf. BVerfGE 42, 143 [149]). Furthermore, the more severely a civil-court ruling curtails the constitutionally protected conditions for democratic existence and activity, the more extensive must be the constitutional review of whether such curtailment is constitutionally justified (BVerfGE 54, 208 [215] -- Böll -- with further references). This does not merely apply to the case of a conviction: a judgment dismissing a lawsuit may also be based on a violation of constitutional law.

II.

Petition 1): description of the editorial conference

1. In applying these standards, the constitutional complaint necessitates an intensified constitutional review, insofar as the Federal High Court held admissible those textual passages that contain an account of the editorial conference. In this regard, the attacked ruling affects an area of considerable significance for the Complainant. The fact that it has been intensely affected results from Wallraff's intrusion into its sphere of editorial confidentiality and from the publication of information gained in this manner. The safeguarding of editorial confidentiality is of elemental significance for the protection of editorial members, informants, the press company and its activities. If by violating this sphere, the contents and course of an editorial conference are published -- particularly by reproducing this in direct speech under the claim of authenticity -- then this must be deemed a grievous detriment for the Complainant. In light of these facts, however, the Federal Constitutional Court may not substitute its concept of a correct decision in the place of that by the Appeals Court; under no circumstances is it to rule on whether the respondent's criticism is justified by the facts. On the other hand, its review cannot be limited to the question of whether the attacked rulings are based on a fundamentally incorrect appraisal of the significance of the basic rights relevant for the evaluation, in particular, on the extent of their protective scope. Isolated interpretational errors are also to be taken into consideration, insofar as the judgment is based on them (cf. BVerfGE 54, 129 [136] -- Art Criticism -- with further references; BVerfGE 54, 208 [217]).

2. The Federal High Court assumed that the contents and scope of the "open" elements of tortious liability under §§ 823(1) and 826 of the Civil Code are to be ascertained by a balancing; the High Court held these to be subject above all to the influence of the value judgment made by the Basic Law in guaranteeing freedom of opinion, which is also binding on civil courts. It also found that the Complainant's contractual claims were not able to be evaluated without a balancing of interests under art. 5(1) GG. Accordingly, its evaluation of the case is primarily based on a weighting of the contents of the basic rights to the taken into account here. Whether these contents were correctly defined depends on the reach of the basic rights in art. 5(1) GG in cases such as the instant one. Thus, to be clarified first is the question left untreated by the Federal High Court, namely: whether the confidentiality of the work of newspaper or magazine editors falls within the protective scope of the basic right of freedom of the press.

3. a) The protective scope of art. 5(1), second sentence, GG also covers the confidentiality of a press company's editorial work.

The Federal Constitutional Court has not yet had occasion to make an express ruling on this; nevertheless, it is in line with its consistent holdings on freedom of the press. For instance, the Court has repeatedly emphasized the importance of a free press for the democratic State (particularly exhaustive, BVerfGE 20, 162 [174 f.] -- Spiegel --; cf. also, e.g., BVerfGE 52, 283 [296] -- protective duty; at the same time, however, it has pointed out that the "public duty" incumbent upon the press cannot be fulfilled by State authority. Press companies must be able to develop freely in the social sphere; they work according to the principles of private enterprise and in the organizational forms of private law; they compete with one another both intellectually and economically, an area in which public authority is basically not permitted to interfere (BVerfGE 20, 162 [175]).

The function of the free press in the democratic State corresponds with its constitutional status. As a subjective right, freedom of the press ensures that persons and companies working in the press sector are free from State dictates. With regard to its objective significance, freedom of the press protects the "institutional autonomy" of the press -- from the procurement of information to the propagation of news and opinion (BVerfGE 10, 118 [121], consistent case law; cf. also, e.g., BVerfGE 62, 230 [243] -- Calls for Boycott). In this context, the Federal Constitutional Court has repeatedly stressed the importance for the press of protecting sources of information (BVerfGE 20, 162 [176, 187]; BVerfGE 36, 193 [204]; BVerfGE 50, 234 [240]; BVerfGE 64, 108 [114 f.]) and thus held editorial secrecy to the protected by freedom of the press.

As defined in this manner, freedom of the press is safeguarded for all press publications (BVerfGE 25, 296 [307]). The term "press" is to be interpreted broadly and formally; it cannot be made dependent -- regardless of the standards used -- on a determination of the printed product. Freedom of the press is thus not limited to the "serious" press (BVerfGE 34, 269 [283] -- Soraya; cf. also BVerfGE 50, 234 [240]). This does not mean that in evaluating a given case, its special features are irrelevant (cf. BVerfGE 34, 269 [283]); however, these can only be taken into consideration solely within the scope of the review of (admissible) legal restrictions.

In determining the protective scope of freedom of the press, it is accordingly of fundamental importance to ascertain what is the essential condition for the functioning of a free press. Such conditions include the confidentiality of the work of editors. This is supported by the close connection with the protection of informants: even when a disclosure of the workings of an editorial office does not report on informants, it may still result -- as correctly pointed out by the Association of German Magazine Publishers in its statement -- that such publications carry the danger that sources of information will dry up. Considerations of a general nature also argue in favor of such protection: when confidentiality is not ensured, informants will be unwilling to speak openly and without regard for the danger of abbreviated or distorted recounting. In the attacked ruling, the Federal High Court noted the importance of protecting against indiscretion, without which there would be no basis for trusting, open cooperation and work in a company, particularly in its decision-making bodies, which are at the forefront of this. This also applies to the work of newspaper or magazine editors. Where it is no longer ensured that they are speaking confidentially, spontaneous statements -- perhaps erroneous but nevertheless stimulating for the discussion -- will become a rarity; an editorial office at a newspaper or magazine that lacks free speech will have difficulty accomplishing that which it is supposed to do. This was also pointed out in the above-mentioned statements filed in this case: the task of an editorial office requires a manner of work that does not comport with having to watch carefully what is said for fear that it might seep outside.

The fact that the protection of the confidentiality of all editorial work is an essential condition for a free press results directly from a consideration of the basic direction taken by this protection, i.e., against the State. It would be incompatible with the basic right if State authorities were allowed to inspect the procedures leading to the production of a newspaper or magazine. In that it is directed against the State, the protective scope of freedom of the press therefore clearly encompasses the confidentiality of the work of editors. With regard to "interference" by societal forces or private persons, on the other hand, art. 5(1), second sentence, GG as subjective right does not reveal a "third-party direction" comparable to that against the State. The confidentiality of the work of editors nevertheless is one of the conditions for a free press, which can be impaired not only by the State but also by societal forces or private persons. To this extent, it is a cardinal component of the guarantee of press autonomy as an objective principle, which determines how the relevant civil-law provisions are to be interpreted and applied.

b) As with all basic rights under art. 5(1) GG, however, freedom of the press may also be limited; when the issue is the effects of the basic right on provisions of private law, then with respect to the special nature of the legal relationships regulated by the latter, different -- under certain circumstances, narrower -- boundaries may be placed on the right than in its guise as a claim to ward off State interference (Abwehrrecht). Only once these boundaries have been taken into consideration does the reach of the basic right arise in a given case. Limits may result from the laws referred to in art. 5(2) GG but also directly from the Constitution itself (cf. BVerfGE 44, 37 [49 f.], with further references -- for art. 4 GG).

4. In cases such as the instant one, limits drawn by "general laws" on the confidentiality of the work of editors are not to be found; this structure of freedom of the press also has nothing to do with protection of adolescents or with the right to personal dignity. Thus, to be taken into consideration are those limits resulting from the Constitution itself: The central issue is whether the right (of third parties) to express an opinion freely (art. 5(1), first sentence, GG) and freedom of the press as the right to publicize opinions in a printed work (art. 5(1), second sentence, GG) place limits on the constitutional protection of the confidentiality of the work of the press.

a) This assumes that the report of the editorial conference falls within the protective scope of the two basic rights, which, from the standpoint of importance here, have the same meaning and thus need not be discussed separately.

The report, composed as direct speech, bears a close connection to Wallraff's criticism; it contains factual accounts whose contents were apparently not disputed by the Complainant. Such accounts basically enjoy the protection of art. 5(1) GG (cf. BVerfGE 61, 1 [8 f.] -- Expression of Opinion in Election Battle). But of more fundamental importance is the way in which the information was obtained, i.e., the deception as to Wallraff's identity with the object of using the information so obtained against the Complainant. It is irrelevant here whether there is a "unity of action" between the procurement of the information and the subsequent propagation of it, as is stressed in the constitutional complaint, or whether procurement and propagation are to be separated from one another, as indicated in Wallraff's statement, since in both cases the consequences for the admissibility of the propagation are necessarily the same.

aa) Neither the basic right of free expression of opinion nor freedom of the press protects the unlawful procurement of information. It was thus consistent with the Constitution for the Federal High Court to view Wallraff's conduct in this way by holding the circumstances of his hiring to be impermissibly "clandestine" and his activities to be illegal. Such procurement is also not protected by the basic right of freedom of information (art. 5(1), first sentence, GG): this only guarantees the right to inform oneself without restriction from generally accessible sources. That the editorial office of a private publishing company is not to be counted among these sources requires no explanation. Further treatment of this issue is thus irrelevant.

bb) On the other hand, the propagation of unlawfully acquired information falls within the protective scope of art. 5(1) GG. This is supported by a number of reasons. First, it would not be very consistent to infer from freedom of the press a right to refuse to give evidence when this freedom did not also cover the publication of that which an informant obtained in an unlawful manner and passed on to the press. Second, the press's supervisory duty could also suffer, since one of its functions is to point out improper circumstances of public significance (cf. BVerfGE 60, 234 [240 f.] -- Loan Sharks --). The same goes for the freedom of the flow of information, which is particularly to be maintained and ensured by the freedom of the press. From this standpoint, but also from that of protection of the press and its activities, complete exclusion from the protective sphere of art. 5(1) GG of the propagation of unlawfully obtained information would lead to the situation where from the very outset basic-rights protection is also not available in those cases where this is needed. In view of the variety of conceivable cases, this cannot be ruled out. Such might, with respect to the contents of the information, range from the uncovering of a serious crime to the publication of the personal affairs of a citizen. Similarly, as regards the way in which information was obtained, there can also be various gradations: on the one hand, intentional violation of the law in order to publicize the information procured in this manner or to sell it, and on the other, the mere cognizance of unlawfully procured information, whereby, even observing the requisite duty of care, the unlawfulness of the procurement is likely not at all evident. Also of importance might be the degree to which the rights of the individual concerned have been violated. As a result, the propagation of unlawfully obtained information as well is to be included within the protective scope of art. 5(1) GG. The special features of a given case are to be taken into consideration when dealing with the limitations issue.

b) A limitation on the free expression of opinion and on freedom of the press can result in cases such as the instant one from §§ 823 and 826 of the Civil Code in conjunction with § 1004 of the Civil Code. These provisions are general laws within the meaning of art. 5(2) GG. The Federal High Court as supreme, competent tribunal assumed that in its significance for the protection of organized, exercised business, § 823(1) of the Civil Code contained "open" elements of liability with regard to their scope and their contents and that the same applied to § 826 of the Civil Code. This makes it necessary for the case law of this Court to define these elements precisely and close such openings. Taking into consideration the special features of the facts to the judged and the significance of basic rights -- here, art. 5(1) GG (cf. BVerfGE 7, 198 [208]) -- the Court must develop principles capable of providing normative guidance in deciding a given case. In other words, that which is left open by statute is to be filled in by judge-made law. This task is not comparable with that of an isolated, case-by-case balancing of interests and rights. Although the latter may ensure a high degree of justice in a given case, it is not in a position to provide normative guidance in discovering the law, which is the task of statutes and supplementary judge made law; it is just as incapable of fulfilling the constitutional mandate of predictability, clarity and certainty of law.

To the extent that art. 5(1) GG is accordingly to be taken into account in specifying open norms, the rank of this guarantee is especially determined by two factors. On the one hand, the central point is the purpose of the disputed statement: increasing weight is to be accorded the basic right of freedom of opinion the more it does not involve a statement in private -- particularly in commercial -- intercourse aimed directly at a private object of legal protection and in pursuit of goals for personal gain but rather deals with a contribution to the intellectual contest of opinions in a matter fundamentally affecting the public (BVerfGE 7, 198 [212], consistent holding; cf. also, e.g., BVerfGE 61, 1 [11]). On the other hand, the means used to pursue such a purpose are also of essential importance, i.e., in cases such as the instant one, the publication of information unlawfully obtained by deception and used for an attack on the party deceived -- and not simply the propagation of an opinion. Such means often indicate a not insubstantial interference in another's sphere, particularly when this sphere is protected due to its confidentiality; moreover, this comes into serious conflict with one of the basic conditions of the legal system, namely, that law is unswerving. In view of the underlying facts here, publication is basically to be prohibited. An exception can only be made when the significance of the information for informing the public and for the formation of public opinion clearly outweighs the detriments that the violation brings for the party affected and for the (actual) validity of the legal system. This is normally not the case when information unlawfully obtained and used in the above-described manner discloses conditions or behavior that for its part is not unlawful; this indicates that the information does not deal with circumstances of such considerable weight that there is an overwhelming public interest in their disclosure.

c) These constitutional aspects are of decisive importance for the evaluation of cases such as the instant one.

aa) The attacked judgment contains remarks that permit the inference of a principle for specifying the elements of §§ 823(1) and 826 of the Civil Code: The detrimental effects of publication must only be tolerated when the seriousness and importance of the concern pursued by the critic with his contribution displace the weight of these detriments for the party affected and for the legal system; as is shown by the context of Wallraff's text, it was assumed by the Federal High Court that the critic's "concern" must necessarily be a contribution to the intellectual contest of opinions in a matter fundamentally affecting the public. A principle of this sort is not constitutionally objectionable.

bb) However, the application of this principle meets with constitutional reservations. The Federal High Court assigned too great weight to this concern and too little to both the encroachment into the sphere of the Complainant and the detriments for the legal system resulting from the inconsistency of such a procedure. These are out of proportion to one another.

It goes without saying that the principal purpose of the disputed publication cannot be viewed as the pursuit of goals for Wallraff's personal gain. Rather, the main thrust was to underscore the criticism of the "Bild" Newspaper beyond mere personal opinion by using actual facts to disclose true or imagined deficiencies in the production of this pager, thereby making this criticism all the more effective. In view of the lively discussion surrounding the goals and function of the "Bild" Newspaper, this criticism also dealt with an issue fundamentally affecting the public. However, the description of the editorial conference does not, as was also the opinion of the Federal High Court, uncover any grievous deficiencies; in short, it does not disclose anything that could be considered unlawful. The conference merely discussed topics, which shows how these are treated daily at the "Bild" Newspaper, some of these also revealing a certain tendency. As indicated by the Federal High Court, this certainly accords a glance into the "climate" of an editorial conference, but in and of itself, it can hardly be considered a subject of particular interest for the public.

This was also seen by the Federal High Court. But in its view, it is irrelevant that the account of the editorial conference did not document with sufficient clarity the criticized treatment of information by the "Bild" Newspaper in Hannover. Rather, the High Court held that this description must be seen in the context of the publication as a whole. The criticism, which is aided by this description, was found to be supported by numerous other examples. The subject matter of all of these was held to be weighty deficiencies, for which reason Wallraff's illegal activities do not give to a prohibition on exploitation of the underlying information. But even when the appraisal is extended to such an overall context, the fact remains that the other examples as well -- regardless of whether they are objectionable here -- do not contain anything that could be viewed as unlawful and that the information only served to underline Wallraff's criticism. This criticism would likely have been less effective if it had not employed the unlawfully acquired information. But even in such a case, Wallraff would not have been prevented from expressing criticism.

On the other hand, the Federal High Court incorrectly assessed the importance of the means of procurement and publication of the information, which is also constitutionally significant.

In the opinion of the High Court, the legal system is, on the whole, more strongly affected by deficiencies in the publicity work by the "Bild" Newspaper -- whose disclosure and assessment in the exchange of opinions are among the functions guaranteed by freedom of opinion under the Basic Law -- than by the fact that their revelation at the same time makes evident the illegal procurement of the information. The High Court held that a prohibition on publication for the sake of the legal system would, in this conflict, seem a formal reference to the objectionable conduct of only one side, that of the critic, and leave unappraised the disturbance of the system caused by the criticized facts. That would, however, more strongly encumber the sense of justice than would the toleration of the detrimental effects accompanying the publication.

The remarks do not take up in detail the fact that, as indicated by the Appeals Court, Wallraff's procurement of the information was considerably unjust. This is made clear by the special protection for the confidentiality of the work of editors. Moreover, Wallraff's deception with the intention of using the information obtained in this manner against those so deceived, as well as the realization of this intention, represent a serious violation of the law. Wallraff's publisher at any rate approved of his conduct. The evaluation of the resulting detriments for the legal system ignores the significance of the binding nature of law. The legal system does not consist merely of "formal" rules; likewise, it is not simply a system for the system's sake, which can be countered with a "system" that is disturbed by the criticized facts and in which a judge, who is bound by Constitution and statute, can rely on a sense of justice. Under the Basic Law, the legal system is instead a formal and a substantive order to be created by the democratic legislature within the framework of and according to the directives of the Constitution. Beyond this, the fundamentally binding nature of law is a basic condition of its order and peace function, without which human life in society is impossible.

It is thus not enough for the Federal High Court to assume that a prohibition on publication of the unlawfully acquired information need only be formally justified and to deem minor the detriments arising for both the Complainant and the legal system as a result of having to accept the illegality of the procurement. This not only misses the above-described significance and special value of the binding nature of the law but also lowers to an impermissible extent the threshold beyond which substantial violations of the law go unpunished.

5. The attacked decision is based on this error: It cannot be ruled out that the Federal High Court, had it reached a different ruling on the detrimental effects stemming from the failure to sanction Wallraff's conduct, would have held that the concern pursued by him did not take precedence. This is particularly the case since the report of the editorial conference only served to make more effective Wallraff's criticism; viewed in and of itself, however, the report could not claim to have any fundamental significance for the public. If the Federal High Court had ruled in this way, Wallraff's publication would not be covered by art. 5(1) GG. Therefore, a limitation on freedom of the press was lacking, insofar as this also protects the confidentiality of the work of editors (cf. supra 3). Thus, the attacked decision on Petition 1) violates art. 5(1), second sentence, GG.III.

Petition 3): publication of the manuscript page

1. The Federal High Court quashed the ruling by the Appeals Court holding inadmissible the reproduction of a manuscript page from a contribution written by Wallraff, which had been edited by the chief reporter (page 75 of the book). It cannot, however, be determined that this High Court decision violates art. 5(1) GG.

a) Four Justices, whose view is controlling for this decision, hold the ruling by the Federal High Court on Petition 3) to be compatible with art. 5(1) GG. In their opinion, the facts to be ruled on here are different from those underlying the decision on Petition 1). The subject matter of Wallraff's criticism is his personal experiences with another member of the editorial office and the way in which the latter manipulated one of Wallraff's manuscripts. In contrast to reports on the course of an editorial conference, in which indiscretions with regard to statements by third parties substantially impede trusting, open cooperation and work, the confidentiality of the Complainant's editorial work is considerably less affected here. There is therefore no room for an intensified review by the Federal Constitutional Court; just as with Petition 2), which factually is closely related to Petition 3), review is also to be limited here to the question of whether the attacked decision is based on a fundamentally incorrect appraisal of the significance of the basic rights relevant for the ruling, in particular of the extent of their protective scope. This question is to be answered in the negative. The Federal High Court was able here to assume that a predominant public interest existed in Wallraff's publication. Its decision is thus not constitutionally objectionable from the standpoint of art. 5(1) GG.

b) In the opinion of the other four Justices, the decision on this Petition must be controlled by the same reasoning applying to the decision on Petition 1). The fact that the latter involved a protocol published in direct speech, whereas the former dealt merely with the corrections to a manuscript page drafted by Wallraff, does not establish a fundamental difference: both serve to evidence deficiencies in the editorial office at the "Bild" Newspaper. The procedure was a part of editorial work; the contents of the corrected page are just as confidential, and, just as the editorial conference, these are thus a component part of the confidentiality of editorial work constitutionally protected by art. 5(1), second sentence, GG; even though they are to confirm the practice of "invented stories", they do not clearly contain anything unlawful, whereas Wallraff gained access to the underlying information in the same, illegal manner. As a result, the remarks under II, supra, apply both with respect to the scope of review and with respect to the legal appraisal: here as well, Wallraff's encroachment into the Complainant's legal sphere, the reach of which only became evident with publication, is disproportionate to the substance of the publication, which did not serve to make Wallraff's criticism possible but rather only made it more effective. Wallraff's conduct is therefore not covered by art. 5(1) GG.

2. The decision by the Federal High Court on Petition 3) does not violate the guarantee of property under art. 14(1) GG.

The Complainant asserted that the publication of the manuscript page, as well as the report of the editorial conference, must be deemed -- apart from the protection afforded by freedom of the press -- a serious encroachment in the company's legal sphere, which enjoys the protection of art. 14(1) GG from the standpoint of organized, exercised business; this view cannot be shared. It is therefore unnecessary to discuss in greater detail the extent to which organized, exercised business is covered by the guarantee of property as an actual combination of the property and rights belonging to a company's assets (cf. BVerfGE 51, 193 [221 f.]). It was neither asserted nor evident that Wallraff's breach of confidence could have led to any sort of detriment to, and thus violation of, the Complainant's property rights -- even when this is understood in the broadest conceivable sense. In no case, however, are rights or interests beyond a company's property sphere able to be considered "property".

A violation of the guarantee of property is also not evident with regard to the Complainant's reliance on § 249 of the Civil Code. Here, the Complainant asserted that it is basically able to demand that it be put in the same position that it would have been in had Wallraff not made fraudulent representations in order to obtain his contract, and it objected to the fact that the Federal High Court completely ignored the claim resulting from this, which was alleged to be a component part of the protective scope under art. 14(1) GG. Applicable here is only the second sentence of § 249 of the Civil Code. In conjunction with the provisions establishing a duty to render compensation for damages, this establishes a civil-law claim sounding in property, which was not, however, asserted in the proceedings below; nevertheless, the basis for this claim is disputed by the parties. Whether a claim has arisen is a decision exclusively within the province of the ordinary courts. As long as this has not happened, it may not be assumed in proceedings before the Federal Constitutional Court that the Complainant is entitled to the claim as a right protected by art. 14(1), first sentence, GG. In all other respects, it is also not evident how the Complainant has suffered damages to its property whatsoever.

3. The Federal High Court's decision on Petition 3) also does not violate the Complainant's claim to a hearing in accordance with the law (art. 103(1) GG). By referring to various circumstances reproduced in Wallraff's book, and then taking these into consideration in making its decision, the Federal High Court sought to document the fact that the publication uncovered weighty deficiencies in the Complainant's editorial work. Even though the Complainant was not expressly given opportunity to submit comments here, this does not represent a violation of this basic right.

The constitutional guarantee of a right to a hearing provides the participant in court proceedings a right to comment on the facts underlying the court's decision before it is rendered (BVerfGE 60, 1 [5], consistent holdings).

Wallraff's book was known to the parties. It had been introduced into the trial as evidence. The Complainant had the opportunity to comment on the book's statements. It could not have assumed that there would be no reason to make such comments, particularly since it was at least likely that the passages at issue in the proceedings below would be evaluated in their overall context. The statements examined by the Federal High Court are found in such a context, in that they serve as evidence of the substantial deficiencies criticized by Wallraff. Since the examined textual passages had thus far not been objected to by the Complainant, there was also no reason to assume that the Complainant should be made aware of its right to comment. Even if a duty to instruct pursuant to § 139 of the Code of Civil Procedure had existed, a failure to make the Complainant aware of its right would still not represent a violation of art. 103(1) GG: this basic right does not give rise to a general duty on the part of the judge to question and instruct the parties (cf. BVerfGE 42, 64 [85] -- dissenting opinion). The right is thus not violated when the judge does not fulfill such a procedural duty.

IV.

Petition 2): statement by the chief reporter

To the extent that the constitutional complaint is directed against the fact that the Appeals Court and the Federal High Court did not prohibit the text on page 73 of Wallraff's book, it is not justified. The attacked decisions do not reveal any violations of basic rights.

1. This initially applies to the assertion of a violation of art. 5(1) GG. Here, the structure of the case does not prompt intensified constitutional review. In putting forward the chief reporter's right of personality on his behalf, the Complainant apparently assumed that this right and not freedom of the press is primarily to be defended. The confidentiality of editorial work has not been intensely affected: in contrast to the report of the discussion in the editorial conference, this matter involves the description of a telephone conversation between Wallraff and the chief reporter, which, as pointed out by the Appeals Court, is more or less only parts of a conversation. Constitutional review is thus limited to whether the attacked decisions are based on a fundamentally incorrect appraisal of the significance of the basic rights relevant here, in particular of the extent of their protective scope.

The Appeals Court assumed that the pertinent statement was not capable of impairing the Complainant's right to conduct a business; absent such an impairment, said the Court, the Complainant cannot assert a claim for stoppage of publication on its own behalf. The Complainant was also held to lack authority to put forward the chief reporter's right of personality on his behalf by way of a representative action. The Federal Constitutional Court may not oppose this ruling. In the subsequent appeal to the Federal High Court, the latter made reference to the remarks by the Appeals Court on Petition 1); but based on the above-described scope of review, its decision is likewise not constitutionally objectionable.

2. For the reasons discussed above (supra III 2), it is not possible to find a violation of art. 14(1) GG by the attacked judgments. The same applies to a violation of art. 103(1) GG by the Federal High Court ruling (cf. supra III 3).

V.

Petition 4 b): "emotions and prejudices"

To the extent that the constitutional complaint is directed at the decisions on the admissibility of Wallraff's criticism found on page 126 of his book, it is likewise not justified. It is not evident that basic rights have been violated.

1. This textual passage as well does not occasion intensified constitutional review. The contents of the disputed statement have, at least directly, nothing to do with information stemming from the editorial work of the "Bild" Newspaper. Even when the statement is read in the context of the foregoing and subsequent comments, its criticism does not presuppose such information. Also missing are other aspects that could allow the conclusion that the Complainant has been intensely affected by the attacked decisions.

2. In view of the substantially limited scope of review resulting from this, the attacked decisions are not constitutionally objectionable.

a) The answer to the question of whether the passage disputed by the parties in the proceedings below falls within the protective scope of art. 5(1) GG depends on whether this has to do with a proven or intentionally untrue assertion of fact or with a value judgment as to the "Bild" Newspaper (cf. BVerfGE 61, 1 [8 f.]). A statement falls within the protective scope of the basic right of freedom of opinion when its thrust bears the elements of commentary, of advocacy or opinion. This must also apply when these elements -- as is often the case -- are bound or mixed with elements of a notification or assertion of fact, at least in those instances where the two cannot be separated and the evaluation predominates over the fact-based substance (BVerfGE 61, 1 [8 f.]).

The Appeals Court and the Federal High Court correctly assumed that the textual passage at issue did not contain an assertion of fact but rather value judgments. It dealt with commentary on the contents of the "Bild" Newspaper and the effects these have on the reader. Wallraff's appraisal does not depend on isolated facts or specific circumstances; rather, it contains a global evaluation of the trend in the paper's contents. Whether the "Bild" Newspaper has spoken out in favor of or against the death penalty is, in contrast to the Complainant's view, irrelevant; Wallraff did not make a corresponding assertion of fact. Even though the passage might contain a certain factual basis, this is of minor importance in relationship to its value-judgment substance. It is thus an expression of opinion protected by art. 5(1) GG.

b) As a result, the courts below were required to give account to the influence that art. 5(1) GG has on the application of the pertinent "general laws". These are in turn to be interpreted in light of the rank accorded to this basic right in a democratic State, but this interpretation must necessarily be restrictive, since these laws themselves limit the basic right (BVerfGE 7, 198 [208 f.], consistent holdings; cf. also, e.g., BVerfGE 61, 1 [10]). Controlling on this point are the principles that have been developed by the Federal Constitutional Court on the admissibility of derogatory expressions of opinion:

When these deal in a given case with a contribution to the intellectual contest of opinions in a matter fundamentally affecting the public, then there is a presumption in favor of the admissibility of free speech; an interpretation of laws restricting freedom of opinion that places excessive demands on the admissibility of public criticism is not compatible with art. 5 GG (BVerfGE 54, 129 [137], with further references). Moreover, the party occasioning a derogatory opinion in the public contest of opinions must also in principle accept a sharp reaction to this, even when such criticism lowers its reputation. This connection between cause and reaction is not limited to mutual insult. On the contrary, it has to be determined whether and to what extent the party affected by the derogatory statement itself took part in the process of formation of public opinion, which is protected by art. 5(1) GG, thereby freely submitting itself to the conditions of the contest of opinions and, by this conduct, relinquishing a part of its protected private sphere (BVerfGE 54, 129 [138]; BVerfGE 61, 1 [13]).

Both prerequisites have been fulfilled with regard to the criticism published by Wallraff in the disputed passage. It deals with neither a subject of no general interest nor a private dispute but rather with a contribution to the public contest of opinions. A newspaper such as the "Bild" Newspaper, which, as noted by the Federal High Court, clearly and intentionally seeks to polarize viewpoints via its features and its selection and treatment of topics, was capable of occasioning sharp, negative criticism; it needs no further discussion that, as an organ of the press, it is one of the main actors in the public contest of opinion and has thereby submitted itself to the conditions of this contest. It is irrelevant whether Wallraff's statement is "valuable" or "worthless", "correct" or "false", emotionally or rationally justified (BVerfGE 61, 1 [7], with further references).

The resulting effects that art. 5(1) GG has on the general laws to be applied were not overlooked by the courts below. They did not assume that Wallraff's principal motive was the intentional irritation of the Complainant, i.e, defamatory criticism, in which the above-mentioned principles would be powerless to intervene. This assessment may not be reviewed by the Federal Constitutional Court; it is not based on a fundamentally incorrect appraisal of the significance of the basic right of freedom of opinion.

Judges: Dr. Herzog, Dr. Simon, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner, Niedermaier, Dr. Henschel.

Back to top

This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.