In German law, defamation is primarily seen as a crime under §§185 ff of the Criminal Code, and therefore also as a tort under § 823(2) of the Civil Code. There has never been an objection to individual members of a group suing for defamation of that group (See eg BVerfGE 93, 266 (the ‘soldiers are murderers’ case) (translation R Youngs). A legal person under public law can claim civil law protection of its honour in respect of statements which disparage its reputation in the public eye in an impermissible manner (This proposition was confirmed by the Federal Supreme Court in BGH VI ZR 122/80 of November 16, 1982 nepotism).
Freedom of opinion is protected under Art 5 of the Basic Law, but assertions of fact which are known, or clearly established, to be untrue at the time of the assertion are outside its protective scope. However all other assertions of fact which are related to opinion enjoy Art 5 protection even if they later turn out to be untrue. The duty to tell the truth should not be extended so as to hinder disproportionately the freedom of communication which Art 5 protects (BGH VI ZR 83/07 of 22 April 2008 – mole search case). A rough analogy can be made here with the limitation on defamation claims in Sullivan.
In England traditionally the remedies were damages assessed by a jury, and injunctions. Injunctions are in the court’s discretion, and interlocutory injunctions are unusual unless the claimant is likely to succeed at the trial. A quia timet injunction may also be obtained to prevent an anticipated publication if the claimant can state its general nature.
In Germany an interim or permanent injunction preventing further publication may be obtained, or damages which are limited in amount. But the primary remedies are a right of reply (Gegendarstellungsrecht) which the publisher can only refuse to print if the ‘general public clearly knows it to be untrue (W. Brehm, ‘Germany privacy and defamation law: the right to publish in the shadow of human dignity’,  European Intellectual Property Review 336 at 347), a retraction (Widerruf) which can be claimed without proof of fault for statements of facts (Statements of opinion can however be dealt with by an injunction if the defendant has no justified interest in their repetition: BGH NJW 1982, 2246 – clinic directors)) which have been made in public, or a rectification (Richtigstellung) where a publication is only partially untrue (Richtigstellung.). The retraction or rectification should attract the same amount of attention as the false statement, but sufficient space must be left on the front page of the publication in question to maximise the circulation (A Vahrenwald, Case Comment: ‘Princess Caroline of Monaco fights the press’, Entertainment Law Review, 1995, 150 at 155; BGH VI ZR 56/94 of 15 November 1994).
However, in England the concept of an apology or correction is growing in importance. The most significant advance in this area is the possibility of summary disposal under ss 8-10 of the Defamation Act 1996. This may be ordered by the court if there is no defence to the claim with a realistic prospect of success and there is no other reason why the claim should go to trial. Summary relief may include a declaration that the statement was false and defamatory, an order that the defendant publish or cause to be published a suitable correction or apology, damages not exceeding £10,000 or such other amount as may be prescribed, and an order restraining the defendant from publishing or further publishing the material in question. The court can require publication of a summary of its judgment and order the time, manner, form and place of its publication.
German case law
Four recent German cases in the Federal Supreme Court (the Bundesgerichtshof) have been selected where public bodies claimed successfully in defamation. These will now be described, with particular emphasis on the most recent of these, the mole search case, which contained a wide-ranging review of important issues.
Clinic Directors Case
In this case (BGH NJW 1982, 2246) a minority report by members of a committee of the state Parliament of Saarland stated that there was no control by the claimant health insurance association (a legal person under public law) over the activities of certain clinic directors. They delegated their work to a large extent, and then reported the services as personally performed. The Federal Supreme Court held that readers would interpret this minority report to mean that the claimant discriminated in favour of the directors. However, the statement in the report that the directors were inadequately controlled was justified, and therefore the claimant was only entitled to a rectification, not a retraction, and to an injunction in limited terms.
In this case (BGH VI ZR 122/80 of 16 November 1982) the Federal Institute for Labour sought an injunction preventing an allegation that ‘the labour office at S is squandering public money on the basis of pure favouritism and nepotism by paying unemployment benefit to Mrs G without any legal ground’. The defendant believed that he had been treated unjustly for refusing to provide a work certificate in respect of Mrs G, his former employee.The accusation primarily affected the director of administration, a Mrs W, but the labour office at S was directly affected and the civil law claim vested in the Federal Institute.
The defendant’s accusations had been sent not only to the labour office at S and Mrs G, but also to a third party. Even if a citizen had an interest worthy of protection in inducing a competent authority to intervene in respect of violations of duty which did not affect him directly, this did not entitle him to send accusations to third parties.
In this case (BGH VI ZR 204/04 of 22 November 2005) the legal person under public law was an archbishopric, which, together with its cardinal and a prelate, sued a journalist who claimed that they had had the opportunity to prevent a minor, who had allegedly had an affair with a priest, from having an abortion; and that they could have dismissed the priest who had allegedly induced the girl to engage in the sexual relationship. But the claimants had not been given the name of the girl nor the name of the priest, and failure to mention this made the allegation of delayed action, or inaction, defamatory.
Mole Search Case
In this case (BGH VI ZR 83/07 of 22 April 2008)a news magazine called FOCUS had published an article claiming that the Federal Criminal Office had deliberately distributed internally certain secret terrorist documents (manipulated by changing certain telephone numbers) about the Jordanian terrorist al-Zarqawi in order to identify the source of a leak. This operation showed disregard for the Federal Intelligence Agency and friendly secret service agencies who had assembled the documents, and in the end was ineffective anyway. The Federal Criminal Office denied the allegations and claimed an injunction against further publication, and a rectification. The appeal to the Federal Supreme Court related to the rectification.
The Court considered that the statements contained an infringement of the reputation of the Federal Criminal Office and were likely to endanger trust in its work and its functional capacity. The Federal Republic of Germany had a claim as the defamation was directed against an authority which was subordinate to the Federal Interior Ministry.
A claim to rectification is only possible if the falsehood of the assertion has been established. Normally the burden of proving that assertions are untrue lies with the claimant. However, the defendant could still be subject to a burden of explanation requiring him to give evidential facts for his assertion. The evidence which a claimant needed to give could usually only be given when concrete facts underlying the defendant’s allegations were known. There were no constitutional objections to this stance as long as it did not have a chilling effect on freedom of opinion. The defendant did not have to name its informants; press and broadcasting freedom included confidentiality of sources. But in such cases the defendant could be required to submit more detailed facts from which conclusions could be drawn about the correctness of the information.
An assertion of facts about a matter which substantially affects the public might be justified for the realisation of a legitimate interest if the defendant had made sufficiently careful research into its truth. If this was done and the statement was later revealed to be untrue, it was nevertheless to be regarded as legitimate at the time of utterance, so there would be no question of punishment, retraction or compensation. But the defendant had not demonstrated that the journalistic duty of care had been fulfilled, as it had neither given details of its fulfilment nor of the reliability of its informant.
There was no general rule that a claim by a public authority to rectification would interfere disproportionately with press freedom. The rectification was also necessary and appropriate to remove the disturbance. The rectification had to be directed towards the recipients of the first communication, ie in the same publication, especially when it has a high circulation. The possibility of the claimant explaining its views by its own press office and contacts with other media, and writing to friendly secret services did not remove the need for publication of a rectification by the defendant.
Summary of German position
The German courts do not believe that the possibility of claims by public bodies in defamation imposes unreasonable restrictions on the civil rights of citizens, or prevents citizens from defending any interests worthy of protection before the appropriate authorities. Nor does it, in their view, enable the public administration to block objective criticism of its official activities. Where violations of public duty do not concern a citizen, he or she must have a justified interest in criticising them. However, when balancing interests in these cases, greater weight is given to Art 5 of the Basic Law when the esteem of an authority rather than protection of personal honour is at stake. There is also no case for defamation claims in respect of accusations made in judicial or administrative proceedings if those proceedings give the person affected sufficient opportunities for defence (BGH VI ZR 122/80 of 16 November 1982 (nepotism) at II 1.)
Raymond Youngs, is a Senior lecturer in law, Kingston University.
This is a part 2 of an edited version of a paper originally published in Communications Law, “Should public bodies be allowed to sue in defamation?” can be seen in Communications Law: Comms. L. 2011, 16(1), 19-26. Part 1 was published on 18 May 2011. It is reproduced with the kind permission of Communications Law and with thanks.