The public interest defence against defamation claims – a German perspective
When does the public interest justify the press reporting as yet unproven claims of criminal behaviour or other possibly defamatory allegations?
This a particularly difficult question of defamation law which has been brought before the Ger-man courts numerous times. At the heart of the issue is a conflict between two rights protected by the German Constitution. Article 2(1) of the German Basic Law protects the “personality right” of the individual and the courts have emphasized the grave threats that the public reporting of false accusations can pose to the reputation of an individual. At the same time, Article 5(1) protects the right of free speech. It also guarantees a free press and the courts have acknowledged that the press could not fulfil its role in a free and democratic society if it was restricted to reporting only those allegations concerning matters of public importance which have already been proven in a court of law.
To balance these interests in a specific case is a delicate task for the judges trusted with de-ciding a matter. Over the years, the German courts have set out a fairly detailed test to guide this assessment.
First, the allegations must concern a matter of some importance in which the public has a significant interest. Very often, the allegations will concern criminal behaviour, and the alleged crimes must be sufficiently severe or have a sufficient connection to public concerns. This does not mean that acts which do not constitute criminal behaviour could not justify a public scrutiny by the press, but again, the allegations of non-criminal behaviour must be sufficiently severe to justify a public reporting. An important element in this assessment will be whether the allegations concern individuals who consciously seek the public’s attention and, conse-quently, whose behaviour is more likely to be of public concern.
Second, the press may only report the allegations if there are sufficient proven facts to support them. The press has an obligation to diligently research those facts. The available evidence must allow the assumption that there is a certain degree of likelihood that the allegations are true. The threshold for a sufficient factual support of the allegations will depend on their seri-ousness. The courts will require a stronger factual support for allegations that are particularly severe and thus more likely to harm the reputation of the individual strongly. Simple indications that may or may not support a certain allegation will never be sufficient to justify the publication of allegations of a defamatory nature.
Third, the press must clearly and unambiguously report the circumstances as currently un-proven allegations. It must not create the impression the matter is settled, that the defendant is indeed guilty or that the facts supporting the allegations are stronger than they actually are. The report must not be sensationalist, but must be open and balanced in order to allow the reader to form its own opinion.
Fourth, the press is obligated to report all exonerating circumstances. It must have given the individual a chance to comment on the matter and must of course report the individual’s re-sponse. This requirement is taken very seriously. For example, it is not sufficient to call the individual and cease all efforts to obtain a comment if the person is not immediately available.
If the requirements outlined above are met, the publication of the allegations will generally be lawful even if it turns out later that they were unfounded. Whether the publication can be re-peated after the true facts are known will depend on whether a sufficient public interest in the former allegations endures. Even if it does, the press will be obligated to report that the allega-tions turned out to be unfounded.
The publication of non-trivial allegations against individuals is a serious matter that can destroy the reputation of a person if the press acts irresponsibly. The courts have to straddle a fine line between the individual’s right to have its integrity safeguarded and the press’s responsibility for reporting on matters in the public interest. Through extensive case law, the German courts have set out a multi-faceted test that does work reasonably well in practice. Ultimately, the responsibility to balance these interests does not only lie with the courts. It is a fundamental challenge of ethical journalism.
"A significant public interest can justify the reporting of as yet unproven allegations, but the press needs to thoroughly research all facts, avoid any bias and must report exonerating circumstances."
"Whether the publication can be repeated after the true facts are known will depend on whether a sufficient public interest in the former allegations endures."