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Interim injunctions in privacy and defamation matters in Germany

The German approach to interim injunctions in privacy and defamation disputes is considered to be relatively claimant friendly but the courts' liberal granting of injunctions has recently come under pressure.

February 2019

When it comes to disputes over defamatory statements or breach of an individual's right to privacy, a claimant looking to prevent initial or further publication of allegedly infringing statements will need to act quickly to prevent irreversible reputational damage.

Different jurisdictions have developed diverging approaches to providing swift legal procedures which allow individuals to protect themselves and enforce their rights, while balancing the interests of defendants. German law provides an interesting approach because it allows for unilateral proceedings by the claimant and the granting of ex-parte decisions against defendants. While this system has come under some pressure from the point of view of constitutional law, at least until very recently, the courts have liberally granted injunctions against defendants without their involvement. In combination with the ability of claimants to choose the forum of a dispute (within fairly wide parameters), the German system has been widely perceived as comparatively claimant friendly.

Scope of protection in Germany

The scope of protection afforded by German law to individuals against violations of their privacy as well as defamatory statements is reasonably wide. When assessing an allegedly unlawful statement, a German court will distinguish between statements of fact and opinion. A statement of fact (ie a statement whose accuracy can be subject to confirmation by means of evidence) can generally only be prohibited if it is untruthful. Statements of opinion are covered by constitutional protection of freedom of speech and can only be legally restricted if they are defamatory to a degree which would be unjustifiable even in the context of a strongly worded dispute. The threshold applied by the courts is fairly high, but formal insults will, for example, be prohibited.

Applying for an interim injunction

A successful application for an injunction relies on more than the claimant being entitled to injunctive relief in principle because his personality or privacy rights have been infringed. Similar to the "irreparable harm" test in common law jurisdictions, the claimant's interest in obtaining the injunction must outweigh the defendant’s interest in the continued publication of the statement or information. In practice, this is not a major obstacle to obtaining an injunction in Germany. A German court will consider the legal merits of the claim in full. If it comes to the conclusion that the statement is defamatory, the defendant will not generally have a legitimate interest in publication and the injunction will be granted.

One potential stumbling block for claimants is the requirement that injunctive relief be sought quickly. While different German courts apply different standards, claimants are generally expected to file within a month to six weeks after acquiring knowledge of the publication. Some courts refuse to work with fixed time periods and will instead look at the claimant's actions after they became aware of the offending publication. The claimant must demonstrate that they have taken all necessary steps to act against the publication once on notice. Even where they have, the courts will rarely accept a delay of longer than six weeks to two months.

A key difference from proceedings on the merits is that courts will only consider the evidence immediately present before them. Claimants need to present all documents and other evidence required to substantiate their claim including sworn witness statements which often play an important role.

Which court?

Local jurisdiction can be established with any court in whose district the allegedly infringing statement was published. In the age of the internet and other universally accessibly media, this effectively entitles the claimant to choose their preferred court. Many court districts have referred the responsibility for press and defamation law matters to specialist courts and these are a popular choice as they are perceived to be particularly claimant friendly. Traditionally, the courts in cities with a high concentration of publishers as such as Hamburg and Berlin have been favoured by claimants.

The position of the defendant

Once the application is filed, proceedings are usually very quick and a decision can be rendered within days. The court can grant an injunction without the defendant's involvement, but may decide to hold a hearing. Until very recently, it was common practice for the responsible judges to discuss the case with the claimant's counsel and point out potential issues, sometimes over the phone. This then allowed the claimant to amend the statement of claim or withdraw the case altogether without the defendant ever knowing that proceedings had been brought in the first place.

This practice has been widely criticised on the grounds that while the German Code of Civil Procedure allows for ex-parte proceedings, informally guiding the claimant cannot be reconciled with defendant's right to be heard and to a fair trial. In two decisions from September 2018, the German Constitutional Court appears to have taken this issue into account. The Court held that an ex-parte decision could not be made if the defendant did not have a chance to reply to the allegations. This does not mean that the courts always have to schedule a hearing. Giving the defendant a right to reply to the allegations in a pre-trial cease and desist letter or to submit written declarations in the proceedings may be sufficient. These recent decisions have caused considerable uncertainty and have resulted in some courts becoming increasingly reluctant to issue ex-parte injunctions.

What is the effect of the injunction?

If an injunction is granted – whether in ex-parte proceedings or after a court hearing – it only becomes enforceable once it is formally served by the claimant on the defendant. In the case of an ex-parte injunction, this is done through a bailiff. Where the defendant has already instructed its own counsel, service can be effected by a simple letter or fax from claimant's attorney.

An injunction will generally prohibit the defendant from repeating the offending statements and will require the defendant to remove them from any accessible media (including websites). The defendant must take reasonable steps to prevent the statement from appearing on any other medium within their sphere of influence. In practice, this includes the obligation to request the deletion of any copies still available through the caches of popular search engines.

Enforcement

The injunction will remain enforceable until it is repealed by the court. Any violation of the injunction will entitle the claimant to apply for a penalty (to be determined by the court) against the defendant. In the case of repeat offences, escalating penalties will be imposed. Ultimately, the defendant itself, or its managing directors in the case of a corporate entity, can be subject to imprisonment, but custodial sentences in these circumstances are exceedingly rare.

Appeals

If an injunction is granted in ex-parte proceedings, the defendant can file an appeal and the court will schedule a hearing. Because the hearing will be held before the same judges who initially granted the injunction, it is often an uphill battle for the defendant to get the injunction overturned at this stage without new evidence. Once the injunction has been upheld or overturned, either party can appeal to the Higher Regional Appeals Court within one month. Throughout the proceedings, the injunction will remain in place except in the rare instances where enforcement is stayed as a result of a successful application by the defendant.

Given that an interim injunction is often granted on a preliminary appreciation of the facts by the court, the claimant is liable for any damages incurred by the defendant if the injunction is enforced but later repealed. Depending on the object of the injunction, these damages can be substantial and the claimant must carefully evaluate this risk. While it will be difficult for a defendant to prove specific damages incurred as a consequence of being prohibited from making certain statements over a certain period of time, the situation can be entirely different if the injunction concerns the publication of a book or has an impact on the distribution of other products.

Pre-publication injunctions

Injunctive relief can, under certain circumstances, also be obtained before a statement is actually published. This may be relevant where a claimant is attempting to prevent further dissemination of defamatory statements by other media. In order to obtain an injunction in these circumstances, the claimant must establish with sufficient certainty that the defendant does actually intend to publish the statement. This can, for example, be the case where a publication has reached out to a claimant for comment and stands by its intention to publish a story despite being notified of the defamatory or untrue nature of the statements.

A court-ordered counterstatement

Individuals or corporate entities affected by defamatory or untrue statements often want the defendant to publicly retract their statements. A retraction cannot be achieved in interim proceedings (and is difficult to obtain in proceedings on the merits as well). The reason for this is that a decision in interim proceedings is only meant to safeguard the claimant's rights until the case is resolved in main proceedings.

A much more common remedy in media cases that can also be enforced in interim proceedings is the claim to have a counterstatement published by the press. The various laws on the operation of the press enacted by the different German states govern these proceedings. While the details go far beyond the scope of this overview, claimants generally have a right to force publication of a counterstatement. The counterstatement must express the diverging view of claimant concerning a statement of fact published by the press. Its content is highly formalised and must not go beyond the correction of the allegedly incorrect facts. The local press legislation usually provides for a very short deadline of a few weeks within which the claim can be made.

Still claimant friendly?

Overall, the German courts provide effective and fast injunctive relief for claimants affected by defamatory or otherwise unlawful statements. Despite recent developments reigning in some arguably problematic practices, Germany remains a claimant friendly jurisdiction. The rights of claimants to choose from several specialised competent courts, as well as the comparatively low cost of litigation due to an absence of discovery proceedings and reasonable court fees, will ensure that Germany remains an active forum for defamation and privacy lawsuits for the foreseeable future.

If you have any questions on this article please contact us.

Berlin wall
Dr Dirk Wieddekind


Dirk considers whether Germany remains a claimant friendly jurisdiction for interim injunctions in privacy and defamation cases.

"The rights of claimants to choose from several specialised competent courts, as well as the comparatively low cost of litigation…will ensure Germany remains an active forum for defamation and privacy lawsuits for the foreseeable future. "