Summary:

I.

The applicant is a subsidiary of the publisher of the “Sächsische Zeitung” daily newspaper. It disseminates reports, including through its Internet site. Its two constitutional complaints relate to reports on an incident from 2008. Both sons of Uwe Ochsenknecht, an actor who is famous in Germany – the plaintiffs of the original proceedings – were involved in this. Both sons are actors and singers themselves, and are relatively well known in Germany.

They were observed at night together with a group of friends interfering with bicycles, tearing flowers out of a flowerbed and ripping out the receiver from a telephone box. The plaintiffs were released after their details had been taken at the police station. No investigation proceedings were initiated against either of the two. The applicant disseminated a report on its Internet site on this incident headlined “Police take Ochsenknecht’s sons in”, reporting “both young actors and singers questioned by the police after wild vandalism in the centre of Munich”.

The plaintiffs were successful at both instances with their requests for injunctions regarding reporting on the incident as physical damage, as well as individual comments regarding the events. The applicant is objecting to these rulings of the ordinary (non-constitutional) courts.

II.

The Federal Constitutional Court has quashed the impugned rulings because they violate the applicant’s fundamental right to freedom of opinion, and has remitted the cases to the Regional Court (Landgericht) for a renewed ruling.

In essence, the decision is based on the following considerations:

The constitutional complaints are well-founded. The impugned report on the incident, which is uncontentious in rem, falls within the area protected by freedom of opinion. The latter is not granted without reservation, but finds its limits inter alia in the general statutes. In applying the material provisions of civil law, the ordinary courts have however disregarded the significance and scope of freedom of opinion. They have not dealt adequately with the special circumstances within the scope of the plaintiffs’ general right of personality and thus granted priority to it in the context of the necessary weighing.

The general right of personality particularly provides protection against impairment of privacy and intimacy. In the field of written reporting, it does not already offer protection against being named at all in a report individually, but only in specific respects. This is above all a matter of the content of the reporting. For reporting on criminal proceedings it is recognised that, with regard to the presumption of innocence, the naming of names or other means of identifying the offender is not always permissible. In particular with grievous criminal offences, the danger of stigmatisation of a person who has not yet been convicted with legal force may be increased. This is however different to the reporting at hand on the uncontentious conduct of a group of young people on a public street. Reporting on this conduct is independent of criminal proceedings, and it is of minor relevance under criminal law at most. Moreover, the report only affects the plaintiffs’ social sphere. Furthermore, the latter placed themselves in the public eye, maintaining their image as “young wild ones” and exploiting their function as idols for commercial purposes. The ordinary courts failed to adequately include these circumstances in their considerations.

What is more, it should be taken into account in the weighing that the press may not be limited in carrying out its tasks in principle to using anonymised reporting. In factual reports, true statements must as a rule be accepted, even if they are disadvantageous to the person concerned. On the other hand, there is no doubt that the young age of the plaintiffs should be included in the considerations. The standard presumption made by the ordinary courts of the fundamental priority afforded to the general right of personality vis-à-vis freedom of opinion, as soon as vulnerable interests of young adults or juveniles are concerned, is however constitutionally too narrow and undifferentiated. It ignores the need to assess individual cases. In the case at hand, it furthermore allots too little consideration to the fact that the significance of the encroachment on privacy is reduced both by the “public image” of the plaintiffs and by the categorisation of their conduct as small-scale crime.