Short Introduction: In which situations may one not assert or disseminate factual claims about others to third parties?

The assertion or spreading of untrue facts about others is generally not permitted and, according to §§ 186, 187 StGB, can be punishable as libel or slander. According to these articles, anyone who asserts or spreads an untrue fact or facts about another person, facts which are likely to disparage said person in public opinion, shall be punished. E contrario, one could conclude that true factual claims are generally admissible, even if they cast the person concerned in a particularly poor light. True and factual assertions are in principle protected by freedom of opinion or freedom of expression. But does this give the press the right to report on a relationship which has been kept secret until now? That one may publish any recorded telephone conversation without knowledge of the interlocutor, or the contents of a found diary, should they be genuine?

The expression of fact can be, according to case law, inadmissible in exceptional cases. Freedom of opinion and/or freedom of expression can also be limited in certain circumstances. These limits are regulated in Article 5.2 of the Basic Law, a fundamental right which ensures any person the right of personal honour. Factual claims can therefore be inadmissible if they violate the legal interests of other persons, specifically their general right of personality and their human dignity. To ascertain if a person’s honour has been infringed, the area of life the statement concerns must firstly be examined. Followingly, any relevant conflicting interests must be assessed.

A distinction must be made between the private, intimate and social spheres. The private sphere enjoys higher protection than the social sphere. In the case of assertions regarding facts originating in the private sphere, the personal right of the person concerned must regularly be accorded greater weight than freedom of opinion or the general public’s interest in the publication of the facts. The intimate sphere is particularly protected. If the facts originate in the intimate sphere of the person concerned, such statements of intimate circumstances about others are generally to be omitted. Examples are unauthorised publications from a private diary or the publication of a secretly recorded telephone conversation.

However, a careful distinction must be made between the aforementioned areas. That, which at first glance, belongs to the intimate sphere is not always absolutely protected. The Federal Court of Justice (bundesgerichtshof or BGH) has, for example, decided that the right of personality is not infringed upon by reporting on the sexual performances of a pornographic actress (BGH, ruling of 25 October 2011, VI ZR 332/09). As the intimate actions were introduced into the public sphere by the legal entity themselves, said person could not invoke the protection of privacy or intimate sphere. The public sphere of the legal entity is therefore not protected as it would be should it be considered within the private sphere, with the adjudicated facts being attributed to the social sphere. Distinctions will always depend on the individual circumstance of the case.

Factual assertions from the social sphere (e.g. circumstances relating to the professional sphere), on the other hand, must be accepted in principle. The Federal Constitutional Court, for example, made such a judgement in the case of an Internet evaluation (BVerfG, Order of 29 June 2016, 1 BvR 3487/14). In this case, a tenant had not only given the landlord a bad rating but also mentioned his financial difficulties in the commentary, as well as including his name. This negative evaluation could be seen as an impingement of the landlord’s general right of personality. The Federal Constitutional Court, however, ruled that the damage suffered by the landlord was not disproportionately great and that freedom of opinion was therefore ultimately to be given priority. Thus, in the case of claims from the social sphere, freedom of opinion and the public’s interest in information will generally prevail.

When examining the admissibility of a statement about others, it is therefore always necessary to assess the freedom of one’s opinion against the rights of the person concerned. However, as in the case just mentioned, the public’s interest in information also plays an important role. The lower the public interest in the dissemination of the truth, the more protection the general personal right of the person concerned enjoys. According to the opinion of the Federal Constitutional Court, the assertion or dissemination of true facts can be prohibited, should this cause damage to personality which is disproportionate to the public interest in the dissemination of the truth (BVerfG, Order of 29 June 2016).