Introduction to German media law and procedure
The main differences between German and English press law are:
In Germany, the same law and procedure apply to the publication or broadcast of false, defamatory and private statements. In England, defamation, malicious falsehood and privacy are independent and distinct causes of action.
It is relatively straightforward for a claimant to get an interim injunction from the German courts. However, this is not a pre-publication / pre-broadcast injunction but merely an interim injunction pending trial preventing the publisher or broadcaster from repeating the allegation. Pre-publication/pre-broadcast interim injunctions are rare.
To obtain an interim injunction, the claimant has to persuade the court that on the balance of probabilities, the statement is false, defamatory or relates to his private life. The defendant usually does not have a chance to challenge the claimant's evidence until after the injunction has been granted. As most cases are dealt with at the interim stage, the procedure is explained in more detail below.
All German media cases are heard by a judge, whereas in England, libel trials are usually decided by a jury.
Litigation in Germany costs much less than in England. Damages are rarely awarded in media cases because most cases are determined at the interim injunction stage. Legal fees for challenging an interim injunction could be about $4,0002 or so. Taking most cases to trial could cost a publisher or broadcaster less than $30,000 in legal fees.
The lawyers' fees which the loser pays to the winner are determined by statute. For a trial, it is usually less than $12,000. Conditional fee agreements and contingency fees are not allowed.
False and defamatory statements As the same law and procedure applies to false, defamatory and private statements, the procedure is dealt with after dealing with the law on these issues.
Publication
Publication in Germany generally occurs if the allegedly false and/or defamatory material is read, heard, accessed or seen there. A single instance of publication in Germany may in theory be sufficient to bring a case. However, in practice, the German courts may not seize jurisdiction if, for example, only one or two copies of a magazine are sold in Germany.
Responsibility
Like in England and France, everyone involved in the communication of the allegations complained of is potentially liable.
Limitation
In general, a claimant must start a normal action within three years from the end of the year of the publication or broadcast complained of and the year in which the claimant became aware of the circumstances giving rise to the claim and the identity of the defendant. Claims in relation to online articles can in theory continue forever since the limitation period can start each time the article is accessed. Thus, there is no single publication rule. However, in practice, if the claimant waits too long after becoming aware of the claim, his rights will be forfeited. An interim injunction application cannot be granted unless the matter is urgent. There are regional differences as to what this means. The Munich court, for example, regards the limitation period as being one month after the claimant became aware of the publication or broadcast; other courts may still grant an interim injunction 2-3 months after the claimant becomes aware of the claim.
Meaning
The German courts ask what the ordinary reasonable reader would think the article or programme means after reading/viewing the whole thing once. The statement complained of may simply be false. It may also be defamatory. If the meaning would make ordinary people think the worse of the claimant or if it would lower his or her reputation, then the publication or broadcast is defamatory. Unlike in England, German jurisprudence does not systematically differentiate between levels of meaning or have the 'conduct rule'. Also, German courts do not have an equivalent to the English procedure for striking out a claim on the basis that the article is not capable of bearing a defamatory meaning The claimant does not have to be expressly named in the publication or broadcast in order to be identified.
Statements of fact
The German courts treat statements of fact differently from statements of opinion. A claimant can take action in Germany against a publisher or broadcaster who has made a false statement about him. The main defence is truth. In the ordinary case, the claimant must prove the falsity of the statement. However, in cases of defamatory statements, the burden of proof is shifted and the publisher / broadcaster has to prove the truth of the defamatory facts stated. As in England, there is a repetition rule (although accurate and attributed quotations in the public interest may be subject to the public interest defence (see below). However, unlike in England, reliance on the defence of truth does not generally aggravate damages.
Opinions
A publisher / broadcaster may have a defence if the statement is opinion and not fact. Factual assertions are where the truth of the statements can be verified. Expressions of opinion, in contrast, are subjective valuations where "right" or "wrong" cannot be proved.
For example, the statement
- "The artist's show lasted only 40 minutes" is a verifiable factual statement, whereas the phrase "The artist didn't make an effort; his show was very short" would qualify as a subjective valuation and thus opinion. To succeed on an opinion defence, the defendant must prove that:
- the statement is an opinion, rather than fact, and it is not primarily an insult, in contrast to a mere criticism (which is a difficult distinction to make in practice).
The public interest defence
For the press to be able properly to fulfil its functions and report about misconduct and abuse that has not yet been finally proven, special standards apply to press coverage based on suspicions ("Verdachtsberichterstattung"). Provided there is a public interest in being informed about the subject, it is permissible to report investigations that have not yet been concluded or alleged misconduct that has not yet been definitely proven. However, it is not permitted to "rush to judgment" in such circumstances: the media has to make it clear that the matter is still under investigation. In particular, it is important to not only present the incriminating evidence but also the exculpating circumstances and to give the subject - where possible - a chance to comment on the affair. Further, the journalist must have based his story on reliable sources and done checks to verify the information. The more a person is part of public life (and tolerates this), the more criticism he has to put up with. The claimant's notoriety is therefore important. The public interest defence can sometimes succeed even if the statement is false but the publisher or broadcaster will be expected to have carried out a thorough investigation.
Jurisdiction
Internet publications are considered published in Germany if someone accesses the website in Germany and the website in question is directed at Germany. Whether the website is directed at Germany is a question of fact, and the fact that the website is in English is only one factor. If the defamatory material is published not only in Germany but also in a contracting state of the Brussels Regulation (E.U. member states) and the defendant is domiciled in a contracting state, then the defendant can be sued in its place of domicile or where the publication occurred. The position under the Brussels Regulation applies to all member states of the E.U. If the publication is in the U.S., for example, as well as in Germany and the claimant wishes to sue in Germany, then the German court will decide if it is the appropriate forum. Generally, the greater the connection which the claimant has to Germany, the more likely the German court will seize jurisdiction. Thus, if the claimant is a German citizen or has a significant reputation in Germany, it is likely that the court will accept jurisdiction, even if the publisher is based in the U.S. and most of the readers are in the U.S.