According to a press release dated August 9, 2016, the Federal Constitutional Court (BVerfG) has ruled on the question of when an unproven true factual claim may be disseminated.
Assertion not verifiably true
The proceedings were based on the allegation that a named athlete had been given the doping agent Oral-Turinabol by her coach at the age of 13.
The truth of this statement could not be proven in the proceedings for injunctive relief.
As a result, both the Hamburg Regional Court and the Hamburg Higher Regional Court ordered the person making the statement to cease and desist.
The latter had lodged a constitutional complaint against this.
The BVerfG has now decided – with reference to the violation of the freedom of expression of the person making the statement – that the opinion of the Hamburg judges is not sustainable (decision of June 28, 2016, Ref.: 1 BvR 3388/14).
Balancing freedom of expression and general personal rights
In the case of factual allegations that are neither demonstrably true nor demonstrably untrue – the truthfulness of which can therefore not be established in court – a decision must be made between freedom of expression and general personal rights.
In cases involving a matter that significantly affects the public, it should not be possible to prohibit an allegation that is not demonstrably true as long as its truthfulness has been sufficiently carefully researched beforehand.
High demands on the scope of truth research
In this specific case, this does not necessarily mean that an obligation to refrain from making the statement can be averted.
This will essentially depend on the actual research carried out, which must now be clarified.
It must also be taken into account that the duty of care for statements made by the press is stricter than for statements made by private individuals.
At the same time, the more seriously the allegation interferes with the personal rights of the person concerned, the more stringent the requirements for fulfilling the duty to conduct careful research.
Blanket assertion of untrue facts still inadmissible
The decision takes extensive account of the freedom of opinion and freedom of the press granted by fundamental rights.
However, it leaves no doubt – as far as can be inferred from the press release – that there is still no interest in the blanket assertion of untrue facts in terms of the protection of personal rights.
(Source: Press release no. 53/2016 dated August 9, 2016)