On February 25, 2015 (case reference: 28 O 419/14), the Regional Court of Cologne ruled that a company operating in the energy supply sector may have its corporate personality rights infringed due to an expression of opinion.
However, this presupposes that the statement of opinion is linked to a false or deliberately untrue statement of fact.
Dispute over assumptions made
The company in question operates in the field of energy supply with useful energy from green electricity.
On August 31, 2014, an article was published in which a registered association representing consumer interests suggested that the company would not pay the EEG surcharge.
The article speculates as to whether, in the event of the plaintiff’s insolvency, the end customer could be held liable.
Factual assertion or value judgment?
The court first had to deal with the question of whether a statement of fact or a value judgment was present.
A value judgment is generally protected by the freedom of opinion/press freedom and can only be prevented in extreme cases, such as defamatory criticism.
In contrast, a factual assertion is afforded less protection as it is not covered by fundamental rights.
An assertion of fact exists if there is a concrete event in the present or past that is accessible to evidence.
In contrast, a value judgment is characterized by the element of opinion, opinion or opinion.
The proceedings revolved around the following statement in the online article:
“Although customers of D would not have to pay in advance, if the supplier were to become insolvent, the grid operators could collect the outstanding EEG surcharge from the electricity customers.”
The Regional Court of Cologne considers this statement by the defendant to be an expression of opinion.
It is a purely speculative statement about the reaction of network operators in the event of a possible insolvency of the company.
It is true that both evaluative and factual elements are mixed here.
However, the element of opinion outweighed the factual core.
Priority of corporate personality rights
Nonetheless, the Regional Court of Cologne gives priority to the company’s right to privacy.
In principle, the judges clarify that an expression of opinion, as in the present case, is covered by the freedom of the press pursuant to Art. 5 para.
1 sentence 2 of the German Constitution and that this generally outweighs the company’s right to privacy.
A company must put up with general criticism regarding its economic activities.
This represents a mere intrusion into the social sphere, which the company must accept.
However, a false statement of fact is added to the expression of opinion.
There is no legal basis whatsoever for the assumption that the end customer may be held liable.
If a statement of opinion contains such a false assertion of fact, it is not worthy of protection.
Consequently, in this case, the company’s right to privacy outweighs the freedom of the press.
Companies don’t have to put up with every criticism
The ruling shows that even critical expressions of opinion must in certain cases take a back seat to the company’s right to privacy.
Even if there is no abusive criticism or invasion of privacy, the otherwise protected expression of opinion may lose out if it is linked to a false or deliberately untrue statement of fact.
Companies therefore do not have to put up with all criticism, especially if it “only” affects the social sphere.
A factual assertion, even if it is made as an assumption, cannot enjoy protection if it is false or deliberately untrue.