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OLG Dresden: Deadline for asserting a counterstatement claim

OLG comments on the deadline for asserting a counterstatement claim: Without special circumstances, "without delay" means within 14 days.

On March 14, 2017, the Higher Regional Court of Dresden had the opportunity to comment on the deadline for asserting a counterstatement claim (decision of 14.03.2017 – 4 U 142/17).
When calculating the deadline, a balance must always be struck between reasonable time for consideration and the media’s interest in keeping its content up to date.

The right of reply must be asserted immediately

According to § 56 Abs.
2 No. 4 RStV, a claim to a counterstatement only exists if the claim was asserted “without delay”.

56 RStV

(2) There is no obligation to include the counterstatement […] if […]

4. the counterstatement is not received by the provider against whom the claim is made in writing and signed by the person concerned or his legal representative without undue delay, at the latest six weeks after the last day on which the offending text was offered, but in any case three months after the offer was first posted.
[…]

According to the legal definition of § 121 para.
1 BGB means “without undue delay“.
The prevailing opinion today is that the circumstances of the individual case determine when the affected party acts without culpable delay when asserting a counterstatement claim (OLG Stuttgart, ZUM 2000, 773)

Assessment of the deadline depends on the individual case

A balance must always be struck between the interest of the person concerned in a reasonable period of reflection and the interest of the media in keeping their content up to date.

14-day period unless there are special circumstances

In the absence of special circumstances, a period of 14 days is to be regarded as reasonable for the assertion of a claim for a counterstatement, according to the OLG Dresden.
Nevertheless, this period should not represent an upper limit for the individual case (OLG Dresden, judgment of 26.10.2006 – 4 U 1541/06).

The upper limit continues to be the six weeks specified in Section 56 para.
2 No. 4 RStV, six weeks after the last day on which the offending text was offered.
However, it is no longer possible to assert a claim at the latest three months after the first posting of the offer.

c8f835154f584428b154b7cb84b2d205 Deadline for counterstatement

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