Suspicion-based reporting is a sensitive issue that is particularly important for entrepreneurs* and companies. It involves the publication of information that is based on suspicion and is therefore not regarded as proven facts. This often raises questions about the protection of the personal rights of the person concerned versus the public’s interest in information. In a ruling (case no. 16 U 33/23), the Frankfurt Higher Regional Court has specified the requirements for permissible reporting on suspicion. This article summarizes the key points in a comprehensible manner.

Proper confrontation as part of admissible suspicious activity reporting

First of all, suspicion-based reporting is generally permissible if it meets certain legal requirements. Essentially, this involves weighing up the general personal rights of the person concerned against the right to freedom of expression and freedom of the press. The following requirements are important here:

Based on sufficient evidence

In order for suspicion-based reporting to be admissible, a minimum amount of evidence is required to substantiate the suspicion and justify a “public interest”. This evidence must be comprehensible and credible. The court made it clear that mere suspicions without substantiated evidence are not sufficient. For example, statements from people who have a connection to the person in question are important indications.

No prejudgement

The report must not suggest any prejudice against the person concerned. This means that the report must be recognizable to the reader as a suspicion and not as a fact. In the underlying case, the Higher Regional Court of Frankfurt found that the formulation of a suspicion in the subjunctive is important in order to avoid prejudgement. The article must also make it clear that there is no conclusive certainty.

Confrontation of the affected person

A central requirement is the hearing of the person concerned (so-called “confrontation” / “right to reply”), who must have the opportunity to comment on the allegations before publication. This obligation to be heard applies in particular if the statement of suspicion contains significant evidence and connecting factors for the suspicion. The Higher Regional Court of Frankfurt emphasized that without such a confrontation, there is a risk of distortion of the reporting, as a possible refutation of the suspicion would remain unmentioned.

The following points must therefore be taken into account during the confrontation:

1. complete and transparent information

The person concerned must be informed comprehensively about the “essential core” of the suspicions. This means that not only the main allegation, but also the relevant connecting factors and circumstantial evidence must be disclosed. This is particularly important if the suspicion is based on specific statements or documents that are central to the journalistic account. According to the ruling, it is not enough to simply ask general or superficial questions; the person concerned must be able to clearly identify the specific evidence on which the suspicion is based.

2. questions on essential research results

The confrontation must address the core statements of the journalistic research. In the case of the Frankfurt Higher Regional Court, it was crucial that the person concerned was also questioned about the statements of third parties that supported the suspicion. The court emphasized that the confrontation must not only relate to already known allegations or older rumors. If new information or statements have been researched, such as statements from alleged family members abroad, then these must be included in the request for a statement. This gives the person concerned the opportunity to contradict these aspects or provide additional information.

3. clarity and specificity of the questions

The questions to the person concerned should be formulated clearly and specifically to ensure that the person concerned can clearly understand the allegations. It is not enough to ask vague hints or general questions. For example, specific names, places or events that serve as evidence for the suspicion must be explicitly stated. This precise formulation ensures that the person concerned fully recognizes the suspicions and does not just receive general or misleading information.

4. documentation and traceability of the confrontation

The way in which the request is documented is also important. In order to enable a later review of the confrontation, the entire process should be recorded in writing, including the questions asked and the answers given. Such documentation is necessary for the legal assessment, as it demonstrates the credibility and diligence of the press. The Frankfurt Higher Regional Court found that this transparency helps both the person concerned and the press to defend their position in the event of a dispute.

5. openness to comments and corrections

Confrontation not only serves to gather information, but is also intended to ensure that the journalist critically scrutinizes his sources and research findings. It is therefore necessary to seriously examine any corrections or statements made by the person concerned and, if necessary, to include them in the reporting. The journalist should be open to the fact that his or her account may change as a result of the statement by the person concerned if new, relevant information comes to light.

In summary, the ruling demands that the confrontation is more than a mere formality. It must actually give the person concerned the opportunity to respond to all essential aspects of the reporting in order to enable an objective and balanced presentation of the suspicion. If such a detailed and comprehensible hearing is lacking, this can lead to the inadmissibility of the suspected reporting and give rise to claims for injunctive relief.

Balancing personal rights and freedom of the press

The court must carefully weigh up the rights of the person concerned and the interests of the public in each individual case. Depending on the seriousness of the allegations and the importance of the person concerned in public life, the need for protection can be weighted differently. The decision is based on a comprehensive balancing of interests that takes into account the weight of the individual statements and the broad impact of the reporting.

Entrepreneurs and companies affected by suspicious activity reporting should be aware of their rights. Suspicious activity reporting is only permissible if the minimum requirements are met and the person concerned is given the opportunity to comment in advance. Otherwise, there is a risk of inadmissible reporting that violates personal rights and gives rise to claims for injunctive relief.

In the end, press organs, broadcasters and media representatives are well advised to take into account the high standards of proper confrontation in the context of suspicion reporting.

* This refers to persons of all gender identities. Other spellings are only omitted for reasons of readability.