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Statements containing legal terms only give rise to a limited right of reply

Press Release No. 88/2018 of 19 December 2018

Order of 20 November 2018
1 BvR 2716/17

A right of reply (Gegendarstellung) can only be invoked if the meaning of the challenged statement can be determined unambiguously. When the challenged statement contains a legal term, the regular court may not use its own legal expertise as the basis for determining the meaning of the statement. Rather, the court must base its determination on the understanding of average newspaper readers. This was decided by the Third Chamber of the First Senate of the Federal Constitutional Court in an order published today, granting the constitutional complaint of a publishing house that challenged a court decision obliging it to publish a reply.

Facts of the case:

The complainant publishes a newspaper with nationwide circulation. Promoting an interview with a former business partner of B., it used the front-page headline “B. EXCLUSIVE: creditor who lent millions to B. comes clean – B. even pledged his mother’s home as security (verpfänden)!”. The interview, on page 3 of the issue, correctly stated that the properties B. had listed as collateral included the property on which his mother lived. While this list of collateral gave his creditor a contractual claim (schuldrechtlicher Anspruch) to the registration of a land charge on the listed properties, it does not directly create a security interest over the property (Pfandrecht) under the applicable provisions of the Civil Code (Bürgerliches Gesetzbuch – BGB).

Following an application by B., the Regional Court (Landgericht) issued a preliminary injunction. The injunction imposed an obligation on the complainant to publish the following reply: “[...] In this regard I state that I have not pledged my mother’s home as security. […]“.

Following the complainant’s objection (Widerspruch), the Regional Court confirmed the preliminary injunction. The Higher Regional Court (Kammergericht) rejected the appeal on points of fact and law against this decision. In its reasons, the court stated that the challenged statement was a piece of factual information that can be proven true or false, and thus can be challenged with a right of reply. It argued that for the average person, the term “pledge as security” meant that the original owner no longer had full control over the asset in which a security interest was granted and that the creditor was entitled to liquidate the asset in the event of default. Based on this understanding, the term “pledge as security” was not equivalent to the term “list as collateral”. Therefore, the court held that from the readers’ perspective, the challenged statement did not accurately represent the actual – merely contractual – obligation to grant the creditor a land charge on the property.

In its constitutional complaint, the complainant asserts that the headline is a statement containing a value judgment, against which a right of reply cannot be invoked. It claims that in everyday use, the meaning of the term “pledge as security” is far from clear and that the court’s assessment takes the headline out of context. The complainant contends that the reply it was ordered to publish was also impermissible on the grounds that it is ambiguous, given that it omits the fact that B. had indeed undertaken a contractual obligation to allow the creditor to register a land charge on the relevant property.

Key considerations of the Chamber:

The constitutional complaint is admissible and well-founded. The obligation to publish a reply violates the complainant’s fundamental right to freedom of the press under Art. 5(1) of the Basic Law (Grundgesetz – GG).

The court erred in assuming that the headline contained a factual claim against which a right of reply can be invoked. A headline as such can give rise to an isolated right of reply if, without consideration of the corresponding article, it contains at its core a factual claim that by itself can be challenged by a right of reply. In the event that the headline can be understood to have different meanings, a right of reply may only be invoked if the meaning of at least the contested factual claim can be determined unambiguously. Otherwise, it would not be clear against which statement the person concerned seeks to defend themselves with their reply. In the case at hand, it is not ascertainable that the challenged statement contains a factual claim that persons without a legal background would be able to identify unambiguously. Regarding the term “pledge as security” used in the headline, it cannot be ruled out that an average newspaper reader could also understand this as referring to a contractual obligation to provide collateral. In this situation, the regular courts may not use their own legal understanding of the relevant term as the basis for determining its meaning; instead, they must base their determination on a lay person’s understanding.

The content of the reply which the complainant was ordered to publish is also objectionable. The published reply “[...] In this regard I state that I have not pledged my mother’s home as security. […]“ is open to interpretation and does not go beyond merely denying the statement contained in the front-page headline. Yet, under constitutional law a right of reply may only be invoked to actually refute a factual statement, whereas it may not be invoked for the purposes of simply putting forward a different factual account or correcting untenable legal assertions.