The Federal Constitutional Court ruled on 21.12.2016 (case reference: 1 BvR 1081/15) that the “Tagesspiegel” cannot be obliged to print a counterstatement if the printed article is an expression of opinion.
The obligation to publish a counterstatement violates the Tagesspiegel’s fundamental right to freedom of the press under Art. 5 para.
1 sentence 1 GG.
Expression of opinion does not give rise to a right of reply under press law
In 2015, the daily newspaper “Der Tagesspiegel” reported on the efforts to sell a vacant building complex in Berlin’s Steglitz district.
The building complex consists of a circular base and an office tower.
At the time of the report, the state of Berlin owned the office tower, while an entrepreneur owned the base and the associated stores.
This entrepreneur wanted to purchase the office tower after the Steglitz-Zehlendorf district office moved out.
However, the sales negotiations dragged on for years.
In the Tagesspiegel article, the newspaper editors speculated on possible reasons for the long delay in the sale.
The reason for the delay could have been a dispute between the then Berlin finance senator and the owner of the plinth.
According to Tagesspiegel, the two gentlemen were initially “pretty much best friends”.
Over the years, however, the two were no longer particularly “on good terms”, which led to a delay in the sale that “can no longer be explained by commercial logic”.
The article was satirized by the Tagesspiegel and also contained the passage: “Two alpha animals have wedged themselves into each other.”
In interim legal protection proceedings, the Senator for Finance obtained a claim for a counterstatement.
This claim, based on an unlawful factual allegation, was confirmed by the regional court following an objection by the Tagesspiegel.
“Pretty best friends” in the overall context not a factual claim
However, the Federal Constitutional Court sees the legal situation differently and overturned the judgment of the regional court.
The claim for a counterstatement violated the Tagesspiegel’s freedom of the press under Art. 5 para.
1 sentence 1 GG.
A possible claim only exists in the case of factual allegations, i.e. if the content of the statement as something that has happened is fundamentally accessible to proof.
Whether a statement of fact or an expression of opinion exists depends primarily on the understanding of an unbiased and reasonable public.
The focus of the reporting was on expressing opinions
The statements made in connection with the negotiations on the sale of the tower that the Senator for Finance and the new investor were “pretty much best friends” were not facts that could be proven.
They were merely ironic expressions of opinion by the Tagesspiegel.
It is true that the statement also indirectly contains the factual assertion that the two parties have known each other for a long time.
Nevertheless, the main focus of the statement was a subjective interpretation of their behavior towards each other, characterized by elements of opinion and support.
It was expressly left open whether the delay in the sale was really due to the “wedging of the alpha animals” or simply to the changed negotiating positions.