a) The risk of repetition within the meaning of § 1004Para. 1 sentence 2 of the German Civil Code (BGB) and thus a claim by the person concerned to refrain from any verbal or visual reporting on a criminal investigation that identifies them may no longer apply if the person concerned has been convicted of the offense and the presumption of innocence no longer applies.
b) If, in injunction proceedings, proof of the truth of an offense is deemed to have been provided by a final criminal judgment (§ 190sentence 1 StGB), the following requirements apply to the retrospective assessment of the legal admissibility of an identifying verbal report accompanying criminal proceedings with regard to the presumption of innocence: The report must not contain any prejudgement of the person concerned; in other words, it must not give the incorrect impression that the person concerned has already been convicted of the offense of which he or she is accused. To ensure this balance, a statement from the person concerned must be obtained before publication. Finally, the matter must be of such importance that the general public has a legitimate interest in the disclosure of the identity of the person concerned.
c) For the retrospective assessment of the legal admissibility of identifying image reporting accompanying criminal proceedings for the period until the criminal judgment becomes final, the presumption of innocence must also be taken into account in the context of Sec. 23Abs. 1 No. 1 of the KUG.
Tenor
I. On appeal by the second defendant, the judgment of the 18th Civil Senate of the Higher Regional Court of Munich of January 9, 2018 is set aside on the point of costs and to the extent that the second defendant’s statements
– the plaintiff had pushed a female student onto a secluded staircase in the outdoor area of the Cavos restaurant and whispered obscenities in her ear, including \”You are the hottest sow\”,
and/or
– In this context, the student had defended herself against the plaintiff so that her dirndl was torn,
and/or
– She had begged him to finally stop, which had left the plaintiff cold, he had taken off her panties and opened his pants,
and/or
– the plaintiff had claimed that he had “kissed” the student or employee
and/or the reproduction of the plaintiff’s image in this context have been prohibited.
In this respect, the plaintiff’s appeal against the dismissal of the action in this regard in the partial judgment of the Munich I Regional Court dated February 15, 2017 in the version of the corrective order dated October 10, 2017 is dismissed.
II. On the appeals of the defendants 1 and 2, the judgment of the 18th Civil Senate of the Higher Regional Court of Munich of January 9, 2018 is also set aside and the partial judgment of the Regional Court of Munich I of February 15, 2017 in the version of the corrective order of October 10, 2017 is amended to the extent that the defendants are ordered to provide information (subparas. 3. and 4. of the partial judgment of the Regional Court). The action is dismissed in this respect.
III. For the rest, the appeals of defendants 1 and 2 against the aforementioned judgment of the Higher Regional Court are dismissed with the proviso that the dispute in the main action is declared to have been settled insofar as the action was directed at prohibiting defendants 1 and 2 from making the following statements
– criminal charges had been filed against the plaintiff,
and/or
– he is a defendant in a criminal investigation,
and/or
– the plaintiff had raped a female student or employee
and/or to prohibit the reproduction of the plaintiff’s image in this context.
IV. The decision on costs – including the costs of the appeal and the appeal on points of law – is reserved for the final decision.
By right.
Facts of the case
The plaintiff is demanding that the defendants cease and desist, provide information and compensation for material damage and payment of monetary compensation for violation of his general right of personality through verbal and image reporting.
The plaintiff, a tax consultant, was a partner at the law firm L. from 2008 to October 2014, where he was responsible for personnel matters. He visited the Oktoberfest in Munich with partners and employees of the law firm, including the student employee R., on September 26, 2014 to the Oktoberfest in Munich, followed by a restaurant. In the early hours of September 27, 2014, the plaintiff and Ms. R. were alone in the outdoor area of the restaurant. The plaintiff allegedly raped Ms. R. during this time. That same morning, lawyer S., who was also a partner at the L. law firm at the time, punched the plaintiff three times in the face.
The plaintiff left the law firm in October 2014, lawyer S. at the end of 2014. In a 14-page letter dated February 6, 2015, S. filed criminal charges against the plaintiff for rape/sexual assault of Ms. R. The public prosecutor’s office initiated a preliminary investigation against the plaintiff and filed charges in January 2016 for the incident of September 27, 2014.
The plaintiff objects to two word and picture reports published on 22 and February 23, 2015, i.e. shortly after the investigation proceedings were initiated:
On February 22, 2015, Defendant 2 published an article in BILD am SONNTAG (BamS) under the headline \”Public prosecutor investigates star lawyer\”. In this article, a passport-style portrait photo of the plaintiff is shown in which the eyes are covered with a black bar; the caption reads \”The defendant T[…(plaintiff’s first name)] E. (43)\”. The article also reports that the plaintiff was a partner in the law firm L., that he is married and has three children. On the merits it says:
\”The top lawyer had to leave because he allegedly raped a female employee at an Oktoberfest party. Since last week, the Munich public prosecutor’s office has been investigating ‘rape/sexual assault’… But the case only reached the public prosecutor’s office at the beginning of February – through a 14-page criminal complaint from […] S[…] … It begins on a balmy evening at the end of September. T[…] E. is buying champagne. With a young female colleague who works as a student assistant at L[…], he goes to the outside area of the pub. According to the criminal complaint, he then pushed her onto a secluded staircase. The law student is said to have resisted, tearing her dirndl in the process. E. is said to have whispered obscenities in her ear, including ‘You’re the hottest pig’. According to the complaint, she begged him to stop thinking about his wife and three children. But that left him cold. Instead, he allegedly took off her panties and opened his pants. T[…] E. had raped a female student from his former team at L[…], according to […] S[…]’s accusation. The employee revealed herself to him shortly after the events, as did other colleagues. She was crying and her whole body was shaking … At L[…] the sensitive case became a matter for the boss … In the internal questioning, E. allegedly claimed that the employee had made a pass at him and that he had merely ‘kissed’ her.\”
On February 23, 2015, the defendant 1 also published an article at www.bild.de under the headline \”Public prosecutor’s office investigates star lawyer\”, which is accompanied by the same photo of the plaintiff. Under the headline that \”he […] allegedly raped a law student\”, a short evaluative description of the L. law firm and its partners follows. Finally, it is announced that \”with BILDplus\”, to which a link redirects, you can read \”how top lawyer T[…] E. (43) allegedly raped a female employee … raped a female employee, why an ex-colleague reported him and what the law firm said about the allegations\”.
In February 2015, the plaintiff obtained temporary injunctions against both defendants to prohibit the reporting.
The Regional Court ruled in part on the action for injunctive relief and the action for information. It partially upheld the action for injunctive relief and ordered the defendants to provide information on the scope of their publications (including the number of views of the internet article of February 23, 2015, distribution area and circulation of the BamS of February 22, 2015). Following the plaintiff’s appeal, the Higher Regional Court granted the injunction in full in its ruling of January 9, 2018. It ordered the defendant, with reference to the disputed articles dated 22. resp. February 23, 2015, to reproduce, publish, disseminate and/or make publicly accessible the statements or have them reproduced, published, disseminated and/or made publicly accessible,
. es sei gegen den Kläger Strafanzeige erstattet worden, und/oder
. er sei Beschuldigter in einem strafrechtlichen Ermittlungsverfahren und/ oder
. er habe eine Studentin bzw. Mitarbeiterin vergewaltigt und/oder in diesem Kontext das Bildnis des Klägers wiederzugeben. Der Beklagten zu 2 hat es darüber hinaus unter Bezugnahme auf den Artikel vom 22. Februar 2015 die Verbreitung der Äußerungen untersagt,
. der Kläger habe eine Studentin im Außenbereich des Lokals Cavos auf eine abgelegene Treppe gedrückt und ihr Obszönitäten ins Ohr geflüstert, unter anderem \”Du bist die geilste Sau\”, und/oder
. in diesem Zusammenhang habe sich die Studentin gegen den Kläger gewehrt, so dass ihr Dirndl zerrissen sei, und/oder
. sie habe ihn angefleht, endlich aufzuhören, dies habe den Kläger kalt gelassen, er habe ihr den Slip ausgezogen und seine Hose geöffnet, und/ oder
. der Kläger habe behauptet, er habe die Studentin bzw. Mitarbeiterin \”ge- busselt\”.
The Higher Regional Court dismissed the defendant’s appeals. On February 9, 2018, the plaintiff was sentenced to three years and three months’ imprisonment for rape with intentional bodily harm. The judgment became final at the beginning of 2019. In view of this, the plaintiff unilaterally declared the legal dispute in the main action to be settled in the appeal hearing insofar as it concerns the omission of the statements that criminal charges had been filed against the plaintiff, that the plaintiff was a defendant in a criminal investigation, that he had raped a student or employee, and/or the reproduction of the plaintiff’s image in this context. With the appeals allowed by the Senate, the defendants continue to pursue the goal of dismissing the action insofar as it has been decided by the partial judgment.
Reasons
A.
The Court of Appeal justified its decision to ban the verbal reports by stating that they were identifying reports of suspected crimes that affected the plaintiff’s honor and were inadmissible. In the case of serious violent crimes, an interest in more detailed information about the crime and the perpetrator can generally be recognized. However, when reporting on criminal proceedings that have not yet been concluded, the presumption of innocence must be taken into account, which requires at least balanced reporting. A possible pillorying effect must also be taken into account. The suspicion of rape at issue here is a matter of considerable public interest, especially since the alleged offense is said to have been committed by a superior at the expense of a female employee. However, the plaintiff was neither a “celebrity” nor an organ of the administration of justice. There was a risk that the plaintiff would be stigmatized, which even an acquittal might not be able to eliminate. It is not apparent that the defendants were aware of a sufficient minimum of facts at the time of publication. In the context of balanced reporting, the defendants should have made it clear that the criminal complaint by the lawyer S., who for his part had to fear criminal consequences due to the fisticuffs, was to be viewed critically and that there were no further findings by the public prosecutor’s office. The additional statements at issue in the article of February 22, 2015 also contained details of the alleged course of events, the significance of which for informing the public was doubtful.
With regard to the photo reports, the Court of Appeal stated that the plaintiff’s right to his own image had been unlawfully infringed. There were no portraits from the area of contemporary history. It had to be taken into account that the photo reports identifying the plaintiff on suspicion of a criminal offense constituted a considerable encroachment on his personal sphere because his person was negatively qualified in the eyes of the public. The reports on mere suspicion were already inadmissible as verbal reports. The memory of the defendant’s face through the picture in particular entailed the risk that the plaintiff would suffer a lasting impairment of his personal rights even if he were later acquitted and that he would then find it difficult to free himself from the particular reprehensibility of the actions of which he was accused. It should also be taken into account here that, apart from publications in business journals, the plaintiff had not yet appeared in public.
The risk of repetition assumed on the basis of the infringements committed had not been refuted by the defendants. It was irrelevant whether the indictment that had been issued in the meantime and the opening of the main proceedings against the plaintiff were sufficient evidence of the offense reported in the articles to justify identifying reporting on it now. The court’s prohibition only concerned the statements and images in their context, which also included the communication of the evidence known at the time of publication and the resulting low level of suspicion. In this context, the statements remain inadmissible even if they would be lawful in a different context.
The Court of Appeal affirmed the claim for information on the grounds that the plaintiff could in any case be entitled to monetary compensation due to the infringements of rights caused by the reports because their consequences, in particular the pillorying effect, were extremely serious for the plaintiff.
B.
The plaintiff’s application at the appeal hearing for a declaration that the legal dispute in the main action has been settled, insofar as it concerns the injunction against the statements
. es sei gegen den Kläger Strafanzeige erstattet worden, und/oder
. der Kläger sei Beschuldigter in einem strafrechtlichen Ermittlungsverfahren und/oder
. er habe eine Studentin bzw. Mitarbeiterin vergewaltigt (im Folgenden: Äußerungen 1 bis 3)
and/or the omission of the reproduction of his image in this context is admissible and well-founded. In this respect, the defendant’s appeals are unfounded.
I.
The plaintiff’s unilateral (partial) declaration of settlement constitutes an amendment to the action pursuant to Section 264 no. 2 of the German Code of Civil Procedure (ZPO), which changes the claim from an application for performance to an application for a declaratory judgment. Such a unilateral (partial) declaration of settlement is permissible in appeal proceedings in any case if the event that is said to have (partially) settled the main action is undisputed (see Senate judgment of July 24, 2018 – VI ZR 330/17, VersR 2019, 243 para. 57; BGH, judgment of June 1, 2017 – VII ZR 277/15, NJW 2017, 3521 para. 30; in each case with further references). The plaintiff, who is the defendant in the appeal, can submit a unilateral declaration of settlement without filing a cross-appeal (BGH, judgment of June 1, 2017 – VII ZR 277/15, NJW 2017, 3521 para. 30). In response to a unilateral declaration of settlement by the plaintiff, settlement of the main action must be determined if the action was admissible and justified up to the asserted settling event and has become inadmissible or unfounded as a result of this event (see Senate judgment of July 24, 2018 -VI ZR 330/17, VersR 2019, 243 para. 58; BGH, judgment of June 1, 2017 – VII ZR 277/15, NJW 2017, 3521 para. 30; in each case with further references).
II.
The plaintiff’s declaration of termination is admissible according to these principles. The settling event to which the plaintiff referred in his declaration of partial settlement – his final conviction in the criminal proceedings – is not in dispute. The plaintiff’s application for a declaration of partial settlement of the legal dispute in the main proceedings is also well-founded. His action for injunctive relief concerning the verbal and visual reports covered by the declaration of partial settlement has been unfounded at the latest since the criminal judgment became final, as the presumption of innocence in favor of the plaintiff, which had been in dispute until then, no longer applies (1. for the verbal reports, 2. for the visual reports). Prior to this – at least at the time of lis pendens – the action for injunctive relief was admissible and well-founded based on the principles that apply to reporting during criminal proceedings with regard to the presumption of innocence (3. for verbal reporting, 4. for image reporting).
1. the plaintiff no longer has a claim against the defendants under Section 1004 para. 1 sentence 2 BGB analogously, § 823Abs. 1 BGB in conjunction with Art. 1 para. 1, Art. 2Abs. 1 GG, to refrain from disseminating statements 1 to 3. Since the entry into force of the criminal judgment at the latest, the repetition required pursuant to Section 1004 para. 1 sentence 2 BGB, because these statements are now legally permissible.
a) As the Court of Appeal rightly assumed, the challenged statements interfere with the protection of the plaintiff’s general right of personality. This is because reporting on a preliminary investigation that identifies the defendant inevitably impairs his right to the protection of his personality and his good reputation because it makes his possible misconduct public and negatively qualifies his person in the eyes of the addressees (Senate judgments of 18 December 2018 – VI. December 2018 – VI ZR 439/17, juris para. 9; of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 para. 15; of November 18, 2014 – VI ZR 76/14, BGHZ 203, 239 para. 31; in each case with further references; BVerfG, NJW 2009, 3357 para. 15 with further references).
b) The Court of Appeal also correctly considered it necessary to rule on the application for injunctive relief on the basis of a consideration of the plaintiff’s right to protection of his personality and his good reputation under Art. 1 para. 1, Art. 2Abs. 1 GG, Art. 8Abs. 1 ECHR with the right under Art. 5 para. 1GG, Art. 10ECHR and the defendant’s right to freedom of expression and media freedom. Due to the nature of the right of personality as a framework right, its scope is not absolutely fixed, but must first be determined by weighing up the conflicting interests protected by fundamental rights, in which the particular circumstances of the individual case and the fundamental rights and guarantees of the European Convention on Human Rights affected must be taken into account to guide interpretation. The interference with the right of personality is only unlawful if the interest of the person concerned in protection outweighs the interests of the other side worthy of protection (established case law; see only Senate judgment of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 para. 18 with further references).
aa) In the case of factual allegations that are detrimental to reputation, as in the present case, the balance between the conflicting interests is essentially determined by the truthfulness of the allegations. True factual claims must generally be accepted, even if they are detrimental to the person concerned, whereas untrue claims are not (Senate judgments of December 18, 2018 – VI ZR 439/17, juris para. 12; of December 11, 2012 – VI ZR 314/10, AfP 2013, 57 para. 12). However, even true factual claims are not permitted without restriction. Rather, they can unlawfully interfere with the personal rights of the person concerned if they threaten to cause personal damage that is disproportionate to the interest in disseminating the truth. This may be the case in particular if the statement is likely to have a significant widespread effect or result in a particular stigmatization of the person concerned, so that it threatens to become the starting point for social exclusion and isolation (Senate judgments of December 18, 2018 – VI ZR 439/17, juris para. 12; of March 19, 2013 – VI ZR 93/12, NJW 2013, 1681 para. 29, 32; of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 37; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432Rn. 16; in each case with further references; BVerfG, NJW 2009, 3357Rn. 17).
bb) If the commission of a criminal offense by an identifiable perpetrator is reported truthfully, it must be taken into account that such acts are part of current events, the communication of which is the task of the media. The violation of the legal system and the impairment of individual legal interests, the sympathy with the victims, the fear of repetition of such crimes and the efforts to prevent this, justify in principle a recognizable interest of the public in more detailed information about the crime and the perpetrator. This will be all the stronger the more the crime stands out from ordinary crime in terms of its commission and severity. In the case of serious violent crimes, an interest beyond mere curiosity and sensationalism in more detailed information about the crime and its course, about the person of the perpetrator and his motives as well as about the prosecution must generally be recognized (cf. Senate judgments of March 19, 2013 – VI ZR 93/12, NJW 2013, 1681Rn. 18 mwN; of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 38; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 17; of December 15, 2009 – VI ZR 227/08, BGHZ 183, 353Rn. 14; BVerfG NJW 2009, 3357Rn. 18; in each case with further references). When weighing up the public’s interest in information in reporting against the inevitable impairment of the offender’s right to privacy, the interest in information generally deserves priority for current reporting on criminal offenses. This is because anyone who breaches the peace of the law, attacks or injures fellow human beings through this act and its consequences, must not only submit to the criminal sanctions imposed for this, but must also tolerate that the public’s interest in information, which he himself has aroused, is satisfied in the usual ways (Senate judgments of December 18, 2018 – VI ZR 439/17, juris para. 14; of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 39; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 18; BVerfG, NJW 2009, 3357 para. 19). This includes naming, depicting or otherwise identifying the convicted offender if the associated impairment of his right of personality is proportionate to the seriousness of the misconduct or to its other significance for the public; the latter may also arise below the threshold of serious criminality from the special characteristics of the person or position of the offender, the nature of the offense or the course of events (cf. Senate judgments of October 30, 2012 – VI ZR 4/12, NJW 2013, 229, para. 19; of November 15, 2005 – VI ZR 286/04, NJW 2006, 599, para. 16 with further references; BVerfG, NJW 2009, 3357, para. 20). However, as time passes since the offence, the offender’s interest in being spared a reactualization of his misconduct becomes increasingly important. The right of personality offers protection against the media dealing with the offender’s person for an unlimited period of time. However, even serving a sentence does not mean that an offender acquires the unrestricted right to be “left alone” with the offense. Rather, the decisive factor is always the extent to which the personal rights, including the interest of the offender in resocialization, are impaired by the reporting under the specific circumstances (Senate judgments of 18 December 2018 – VI ZR 439/17, juris para. 16; of May 8, 2012 – VI ZR 217/08, NJW 2012, 2197 para. 40; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 19; BVerfG NJW 2009, 3357 para. 21).
c) A claim for injunctive relief under § 1004 para. 1 sentence 2 BGB analogously, § 823Abs. 1 BGB in conjunction with Art. 1 para. 1, Art. 2Abs. 1 GG presupposes, in addition to the violation of the general right of personality, a risk of repetition under substantive law. If this no longer applies, the future-oriented claim for injunctive relief also expires. An unlawful infringement in the past generally gives rise to the factual presumption of a risk of repetition. However, this presumption ceases to apply if the reporting is now deemed legally permissible due to a change in factual circumstances. Anyone whose rights have been infringed in the past has no right to demand that conduct that is no longer unlawful be refrained from (Senate judgments of March 19, 2013 – VI ZR 93/12, NJW 2013, 1681 para. 31 for verbal reporting; of October 19, 2004 – VI ZR 292/03, NJW 2005, 594, 595, juris para. 17 f. for image reporting).
d) Measured against these principles, there is no longer a claim for injunctive relief against the dissemination of statements 1 to 3 because these are now legally permissible and therefore there is no longer a risk of repetition. The Senate can make the necessary assessment itself because no further findings of fact are required.
aa) Statements 1 to 3 are true factual allegations, even if, according to the content and context of the articles at issue, they only spread the suspicion of rape by the plaintiff. This is because with the final criminal conviction of the plaintiff, the evidence of the truth that the plaintiff committed the rape is deemed to have been provided in favor of the defendant in accordance with § 190 sentence 1 StGB (Weyhe in Paschke/Berlit/Meyer, Gesamtes Medienrecht, 3rd ed., section 37 para. 90, 92). Since the classification of the factual allegation as true on the basis of the aforementioned provision is a mandatory consequence of the legally binding conviction (see Eisele/Schittenhelm in Schönke/Schröder, StGB, 30th ed, § 190 para. 1, 3; Valerius in BeckOK StGB, as of February 1, 2019, § 190 para. 1; Regge/Pegel in MüKoStGB, 3rd ed., § 190 para. 7) and therefore leaves no room for a factual assessment, this classification can be made by the Senate.
bb) Once the criminal judgment became final, the presumption of innocence in favor of the plaintiff, which is based on the principle of the rule of law (Art. 20 para. 3 GG) and recognized in Art. 6 para. 2 ECHR no longer applies. This means that the reporting is legally admissible, at least at the relevant time of the conclusion of the appeal hearing. The plaintiff’s interests in protection do not outweigh the defendant’s interest in reporting.
The plaintiff, who as a partner in a renowned law firm had personnel responsibility and a role model function, was convicted of a criminal offense with the final conviction for rape of a student employee, in which there is a special public interest not only because of its seriousness, but also with regard to the professional superiority/subordination relationship between the perpetrator and the victim. It is true that the plaintiff is identifiable in the verbal contributions, in particular by mentioning his name, albeit in abbreviated form, and by stating that he was a partner at the law firm L. (see BVerfG, NJW 2004, 3619, 3620 sub II 1 b) aa)). It can also be assumed that the plaintiff suffers considerable social disapproval as a result of the reporting. However, he himself caused this and the public’s interest in information through his offense. It is true that the statements at issue, should they be repeated in the future, would be “overtaken” by the final conviction insofar as the investigation proceedings mentioned in the articles have been concluded. However, this does not work in the plaintiff’s favor in the present proceedings, but makes the associated impairment of his general right of personality appear less severe. This is because the two reports only link the plaintiff to ongoing proceedings on suspicion of rape, but not to the conviction for this offense that has actually taken place in the meantime, which is significantly less favorable for his reputation. For the uninitiated reader, they therefore still make it appear possible that the suspicion subsequently proves or has proved to be unfounded, although this possibility no longer actually exists.
The plaintiff’s conviction and the entry into legal force at the beginning of 2019 are not so far in the past that the plaintiff’s interest in resocialization would stand in the way of identifying reporting (see Senate judgment of 7 June 2011 – VI ZR 108/10, BGHZ 190, 52 para. 25 with further references). The statements about the criminal complaint, the investigation proceedings and the suspicion of rape are not suitable to place the plaintiff “forever in the pillory” or to “drag him into the public eye” in a way that could (again) stigmatize him as a criminal (see Senate judgment of 9 February 2010 – VI ZR 243/08, NJW 2010, 2432 para. 20). There is no fear of permanent and long-lasting social exclusion, which would have to outweigh the interest in information aroused by the plaintiff himself.
2. at the latest since the criminal judgment against him became final, the plaintiff also has no claim under §§ 1004 para. 1 sentence 2 analogously, § 823 para. 1, para. 2 BGB in conjunction with. §§ Sections 22, 23KUG, Art. 1 para. 1, Art. 2Abs. 1 GG to refrain from reproducing his images in the context of statements 1 to 3. 3. in this respect, there is also a lack of the repetition required in accordance with § 1004 para. 1 sentence 2 BGB because the dissemination of the images is now permissible.
a) The admissibility of the image publications is assessed, as correctly seen by the Court of Appeal, according to the graduated protection concept of Sections 22, 23 KUG. Accordingly, images of a person may in principle only be disseminated with their consent – which is not available here (Section 22(1) KUG). However, there is an exception to this in accordance with § 23Abs. 1 No. 1 KUG, however, there is an exception to this rule if the portrait is from the field of contemporary history. However, this exception does not apply to distribution that violates the legitimate interests of the person depicted (Senate judgments of June 7, 2011 – VI ZR 108/10, BGHZ 190, 52 para. 14; of October 28, 2008 – VI ZR 307/07, NJW 2009, 757 para. 8 f.).
b) Even the assessment of whether a portrait belongs to the area of contemporary history within the meaning of § 23 para. 1 no. 1 KUG requires a balancing of the rights of the person depicted under Art. 1 para. 1, Art. 2Abs. 1 GG, Art. 8Abs. 1 ECHR on the one hand and the rights of the press under Art. 5 para. 1 GG, Art. 10Abs. 1 ECHR on the other. The concept of current events is decisive for the question of whether a portrait is from the field of contemporary history. This must not be understood too narrowly. With regard to the public’s need for information, it includes all issues of general social interest (Senate judgment of May 29, 2018 – VI ZR 56/17, AfP 2018, 410 para. 11). It is part of the core of freedom of the press that the press has sufficient leeway within the legal limits to decide according to its journalistic criteria what claims to be in the public interest. This also includes the decision as to whether and how a press product is illustrated (Senate ruling of October 28, 2008 – VI ZR 307/07, BGHZ 178, 213 para. 15). There is no examination of whether an illustration was necessary (Senate judgment of April 9, 2019 – VI ZR 533/16sub II. 2. a, zVb; see also Senate judgment of June 7, 2011 – VI ZR 108/10, BGHZ 190, 52 para. 20).
However, the interest in information is not unlimited. Rather, the intrusion into the personal sphere of the person depicted is limited by the principle of proportionality (Senate judgments of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 para. 38; of June 7, 2011 – VI ZR 108/10, BGHZ 190, 52, para. 17; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432, para. 33; of October 28, 2008 – VI ZR 307/07, NJW 2009, 757, para. 10, 13 f.). It is therefore necessary to weigh up the conflicting legal positions. The interests of the media must be balanced as carefully as possible with the general right of personality of the person affected by the reporting (Senate ruling of May 29, 2018 – VI ZR 56/17, AfP 2018, 410 margin no. 15 with further references). As part of the assessment, the subject matter of the reporting is of decisive importance, whereby the information content of the image reporting must be determined taking into account the associated text reporting (Senate judgments of May 29, 2018 – VI ZR 56/17, AfP 2018, 410 margin no. 16; February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 margin no. 38; June 7, 2011 – VI ZR 108/10, BGHZ 190, 52 margin no. 19, 23). The decisive factor is, in particular, whether the media seriously and factually discuss a matter of public interest in the specific case, thereby fulfilling the public’s demand for information and contributing to the formation of public opinion, or whether they merely satisfy the curiosity of readers without reference to a current event (Senate judgments of 29 May 2018 – VI. May 2018 – VI ZR 56/17, AfP 2018, 410 margin no. 16; of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 margin no. 38; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 margin no. 34; in each case with further references).
In the case of an identifying photo report on a criminal offence, it must be taken into account that such a report interferes with the right of the person depicted to the protection of their personality because it makes their misconduct public and negatively qualifies their person in the eyes of the addressees from the outset (cf. Senate judgments of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31, para. 38; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432, para. 34; of October 28, 2008 – VI ZR 307/07, BGHZ 178, 213, para. 33). On the other hand, a criminal offense is part of current affairs, the communication of which is the task of the media. As with the assessment of the admissibility of statements 1 to 3, the legal assessment of the image reporting must also take into account that the violation of the legal system and the impairment of individual legal interests generally justify a recognizable public interest in more detailed information about the crime and the perpetrator and that, in the case of serious violent crimes, an interest in more detailed information about the person of the perpetrator that goes beyond mere curiosity and sensationalism must generally be recognized (cf. Senate judgments of June 7, 2011 – VI ZR 108/10, BGHZ 190, 52 para. 19; of February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 34 in conjunction with para. 17. para. 17). In the case of criminal offences, there is often a legitimate interest in reporting images of the offender because they are often characterized by the personality of the offender and images can provide direct and concise information about the person of the offender (Senate judgment of 7 June 2011 – VI ZR 108/10, BGHZ 190, 52 para. 24 with further references). Here, too, the significance of the crime for the public is decisive, which may result from the severity or nature of the crime, the particularities of the course of events or the person or position of the perpetrator (see Senate judgments of October 28, 2008 – VI ZR 307/07, BGHZ 178, 213 margin no. 22; BVerfG, NJW 2009, 3357 margin no. 20; NJW 2009, 350 margin no. 11). Although the right to protection of personality may often outweigh the interest in a depiction of the offender until a guilty verdict is reached in the first instance (see BVerfG, NJW 2009, 3357 margin no. 20), the interest in information may already take precedence with the first-instance verdict – even before it becomes final (Senate ruling of June 7, 2011 – VI ZR 108/10,BGHZ 190, 52 margin no. 25). In any case, there is no longer a risk that the face of a convicted criminal will be wrongly associated with the crime and that he will no longer be able to free himself from this impression for an unforeseeable period of time, even after an acquittal (see BVerfG, NJW 2009, 350 para. 14 f.). In the context of photojournalism, the principle also applies that the person who breaches the legal peace must not only submit to the criminal sanctions imposed for this, but must also tolerate that the public’s interest in information that he himself has aroused is satisfied in the usual ways (Senate judgments of 7. June 7, 2011 – VI ZR 108/10, BGHZ 190, 52 para. 19; February 9, 2010 – VI ZR 243/08, NJW 2010, 2432 para. 34 in conjunction with para. 18; October 28, 2008 – VI ZR 307/07, BGHZ 178, 213 para. 33). If the interest in information generally takes precedence for current reporting on criminal offences, the interest in resocialization and the offender’s right to be “left alone” becomes increasingly important as time passes between the criminal offence and the criminal proceedings (Senate judgments of 7 June 2011 – VI ZR 108/10, BGHZ 190, 52 para. 25; of 28 October 2008 – VI ZR 307/07, BGHZ 178, 213 para. 23 with further references).
c) Measured against these principles, the contested images have been part of contemporary history at least since the final conviction of the plaintiff for rape. His interest in the protection of his personality must take second place to the public’s interest in information pursued by the defendants.
aa) Admittedly, the verbal reports, in the context of which the admissibility of the dissemination of the plaintiff’s images is to be assessed (see Senate judgments of October 6, 2009 – VI ZR 314/08, AfP 2010, 60, para. 7; of June 24, 2008 – VI ZR 156/06, BGHZ 177, 119, para. 37), do not yet concern the plaintiff’s final conviction, but an ongoing preliminary investigation. They therefore relate to a phase of the proceedings in which the presumption of innocence still applied in favor of the plaintiff. Here too, however, the fact that the plaintiff has since been convicted of rape under criminal law cannot be disregarded when assessing the risk of repetition and the question that arises in this context as to whether image reporting would be permissible in the future as a result of the change in factual circumstances.
bb) The plaintiff has been convicted of an offense which, in view of its seriousness, the position of the plaintiff with personnel responsibility in a renowned law firm at the time and the fact that he committed the offense against a female employee at the time, is of particular interest to the public. By committing the offense, he made himself the subject of the public’s need for information. As part of the balancing of interests, it must also be taken into account that the plaintiff is recognizable to his social environment in the pictures despite the bar over the eye area, as the Court of Appeal found without error of law, and that his identification is further facilitated in conjunction with the information about his person in the accompanying text. However, the partial anonymization of the image makes it more difficult for the general public to associate the plaintiff’s face with the crime. The dissemination of the photos is also not suitable to place the plaintiff “forever in the pillory” or to “drag him into the public eye” in a way that could (re)stigmatize him as a criminal (see Senate judgment of 9 February 2010 – VI ZR 243/08, NJW 2010, 2432 para. 39). Here too – as with the challenged verbal reports – the fact that the portrait of the plaintiff in the context of the accompanying verbal reports is only associated with ongoing proceedings for rape and not with the actual conviction makes the impairment of his right of personality appear less severe. Since the criminal proceedings have only just been concluded, the plaintiff’s interest in resocialization does not yet outweigh the public’s interest in information that he himself has aroused (see Senate judgment of 7 June 2011 – VI ZR 108/10, BGHZ 190, 52 para. 25). It does not matter whether the illustration of the articles is \”necessary\”.
d) In the required assessment of the publications as a whole, no legitimate interests of the plaintiff are infringed by the dissemination of the context-neutral photos (Section 23(2) KUG). The passport-style photographs do not contain any impairment beyond that associated with the identification of a criminal through an image (see Senate judgment of June 7, 2011 – VI ZR 108/10, BGHZ 190, 52, para. 24); they have no independent infringing content (see Senate judgment of November 22, 2011 – VI ZR 26/11, AfP 2012, 53, para. 30).
3. however, at the time of lis pendens, the action for injunctive relief was admissible and still justified with regard to the challenged statements 1 to 3.
a) The challenged statements 1 to 3 are factual allegations that must be regarded as true from the outset. It is true that the proof of truth according to § 190 sentence 1 StGB is only to be regarded as established with the final criminal judgment. However, this only concerns the recognition of the truth of a fact, which has remained unchanged since its creation. This means that the provision also benefits the person who made the accusation of the crime before the criminal conviction and its legal force (see Regge/Pegel in MüKoStGB, 3rd edition, Section 190 marginal no. 12; Valerius in BeckOK StGB, as of February 1, 2019, Section 190 marginal no. 3). Accordingly, it is not relevant for the classification of the allegation of rape as true in the present case that the defendants were not yet aware of the truth at the time of publication and therefore only expressed the allegation of rape as a suspicion (see Senate judgment of December 11, 2012 – VI ZR 314/10, AfP 2013, 57 para. 15). Since the truthfulness of the impugned factual allegations cannot be regarded as unclear, the legal admissibility of the statements challenged here is not assessed retrospectively according to the principles of reporting on suspicion, even for the time before the criminal judgment became final (cf. on this only Senate judgment of December 17, 2013 – VI ZR 211/12, BGHZ 199, 237 para. 26 with further references). In particular, even if this were true, the plaintiff could not rely on the fact that the defendants had not fulfilled their research obligations and that at the time of publication there was a lack of a minimum amount of evidence that would speak for the truth of the information and thus give it “public value” (cf. Senate judgments of December 17, 2013 – VI ZR 211/12, BGHZ 199, 237 para. 26; of February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 para. 24).
b) Nevertheless, the standard for assessing the legality of the statements challenged here is not the same before and after the criminal judgment has become final. This is because the presumption of innocence only ceases to apply – with effect solely for the future – when a criminal judgment becomes final. Until then, the person who committed the crime is also presumed innocent. This must be weighed up in favor of the accused when examining the legal admissibility of reports accompanying criminal proceedings.
aa) The presumption of innocence arising from the rule of law and recognized in Art. 6(2) ECHR has direct effect as a criminal procedural right only vis-à-vis the state (see Gaede in MüKo StPO, 1st ed., Art. 6 ECHR para. 128). There is no direct third-party effect to the effect that the accused would be entitled to be presumed innocent by third parties until his final conviction. However, if it is a matter of identifying press coverage accompanying criminal proceedings, the protection of the accused’s personality is also determined by the presumption of innocence (see Bornkamm, NStZ 1983, 102, 104). Thus, it is recognized in the case law of the Senate, the Federal Constitutional Court and the European Court of Human Rights that, when assessing the legal admissibility of reporting on ongoing criminal proceedings, the presumption of innocence in favour of the accused must also be taken into account as part of the balancing of interests (Senate judgements of 18. December 2018 – VI ZR 439/17, juris para. 15; of March 19, 2013 – VI ZR 93/12, NJW 2013, 1681 para. 19; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 14; BVerfG, AfP 2006, 354, 355; NJW 2009, 3357, para. 20; ECtHR, NJW 2017, 3501, paras. 51-55 – Bedat v. Switzerland; NJW 2012, 1058, para. 202 – Axel Springer AG v. Germany; cf. also para. 13 of the Press Code). It requires appropriate restraint (BVerfGE 35, 202, 232), but at least balanced reporting (Senate judgment of March 19, 2013 – VI ZR 93/12, NJW 2013, 1681 para. 19). It protects against statements that, consciously or not, reduce the chances of the person concerned of a fair trial or undermine public confidence in the role of the courts (ECtHR, NJW 2017, 3501 para. 51 – Bedat v. Switzerland). It also protects the accused from disadvantages that are tantamount to a guilty verdict or punishment, but which were not preceded by a procedure in accordance with the rule of law to establish guilt and assess punishment (see Senate judgments of December 18, 2018 – VI ZR 439/17, juris para. 15; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 14 with further references). An identifying report on the initiation of investigative proceedings must therefore also be reviewed to determine whether it is likely to pillory the accused, stigmatize him or otherwise cause him disadvantages that are equivalent to a guilty verdict or punishment (see Senate judgment of 30 October 2012 – VI ZR 4/12, NJW 2013, 229 para. 18). In contrast to reporting after a final criminal conviction, the fact that the accused has broken the peace under the law and must therefore tolerate that the public’s interest in information, which he himself has aroused, is satisfied in the usual ways cannot be included in the consideration, because such an argument cannot usually be reconciled with the presumption of innocence (see Bornkamm, NStZ 1983, 102, 105). With regard to the presumption of innocence until a first instance (not necessarily final) guilty verdict, the accused’s right to protection of personality can often outweigh the interest in identifying verbal reporting (BVerfG, NJW 2009, 3357 para. 20; see also Senate judgment of March 19, 2013 – VI ZR 93/12, NJW 2013, 1681 para. 19). However, this is not the case if the particular circumstances of the criminal offence of which the accused is accused or his prominent position justify an important public interest in information – also about the identity of the accused – behind which the accused’s interest in the protection of his personality must take a back seat (see Senate judgments of 18 December 2018 – VI ZR 439/17, juris para. 18 et seq.; of 30 October 2012 – VI ZR 4/12, NJW 2013, 229 para. 19 et seq.).
bb) In cases in which – as in the present case – proof of the truth of a criminal offense is deemed to have been provided by a final criminal judgment in the injunction proceedings, the following requirements apply to the retrospective assessment of the legal admissibility of the identifying verbal reporting accompanying the criminal proceedings: The report must not contain any prior conviction of the person concerned; in other words, it must not give the incorrect impression that the person concerned has already been convicted of the offense of which he or she is accused. To ensure this balance, a statement from the person concerned must be obtained before publication. Finally, the matter must be of such importance that the general public has a legitimate interest in the disclosure of the identity of the person concerned.
c) Measured against these principles, the plaintiff was entitled to an injunction against statements 1 to 3 when the action was filed. It is doubtful, but it is irrelevant whether the balance of the reports can be denied on the grounds of the Court of Appeal. According to the factual findings of the Regional Court referred to by the Court of Appeal, the plaintiff also had the opportunity to comment on the criminal complaint by lawyer S. on the basis of the e-mail inquiry of February 19, 2015 (Annex B 14). However, until the plaintiff was convicted in the first instance, but in any case during the non-public investigation proceedings, it was not a matter of such importance that the general public had a legitimate interest in the disclosure of the plaintiff’s identity. The suspicion of the rape of an employee by a partner of a renowned law firm, as explained under 1. f) bb), does affect the public’s interest in information to a considerable extent due to the seriousness of the alleged offense and due to the superior/subordinate relationship between the accused and the alleged victim. However, there was no recognizable interest on the part of the public to be informed not only about the position of the accused in the L. law firm during the investigation proceedings, but also about his identity. According to the findings of the Court of Appeal, the plaintiff was not known to a broad public. The interest in information also did not stem from his position or function in the public or from any effects of his actions on the public or on their trust in his integrity (see, for example, Senate judgments of 18 December 2018 – VI. December 2018 – VI ZR 439/17, juris para. 18 – Misappropriation of parliamentary group funds; of November 18, 2014 – VI ZR 76/14, BGHZ 203, 239 para. 24 – Chief Legal Advisor; of October 30, 2012 – VI ZR 4/12, NJW 2013, 229 para. 19 f. – Gazprom; of December 7, 1999 – VI ZR 51/99, BGHZ 143, 199, 208, juris para. 32). In contrast, the plaintiff, whose identity was easily recognizable to colleagues, clients and his social environment due to the abbreviated name in connection with the statement that he was a partner in the L. law firm and could otherwise be determined without great effort, was exposed to the risk of considerable social disregard even before a conviction precisely because of the accusation of having committed a sex crime against a female employee (see Bornkamm, NStZ 1983, 102, 105). His interests, which were substantiated by the presumption of innocence, therefore outweighed the public’s interest in identifying reporting at the time of publication and also when the action for injunctive relief was filed – at this time, no charges had even been brought.
d) Whether the plaintiff’s claim for injunctive relief only lapsed with the (final) criminal conviction or at an earlier point in time is irrelevant for the determination of discharge. In any case, the action for injunctive relief was initially justified and only became unfounded after lis pendens. The declaration of discharge is also admissible in the appeal instance if the substantive discharge already occurred before the appeal was filed and the declaration could have been made in the appeal instance (BGH, judgments of February 8, 1989 – IVa ZR 98/87, BGHZ 106, 359, 368, juris para. 26; of December 11, 2015 – V ZR 26/15, MDR 2016, 482 para. 31).
4. the plaintiff also had a claim for injunctive relief against the photo report identifying him when the action was filed.
a) Even in the case of image reporting accompanying criminal proceedings, when weighing up the conflicting interests – already when examining whether a portrait from the area of contemporary history within the meaning of Section 23 para. 1 no. 1 KUG – the presumption of innocence must be taken into account (see BVerfG, NJW 2009, 350 para. 14; ECtHR, NJW 2018, 2461 para. 40-42 – Axel Springer SE and RTL Television GmbH v. Germany; Medien und Recht 2000, 221, 225 para. 56 – News Verlags GmbH & CoKG v. Austria). In this respect, too, appropriate restraint is required and a possible pillorying effect must be taken into account (BVerfG, NJW 2009, 350 para. 14). Here, too, the accused’s right to protection of personality will often outweigh the interest in identifying image reporting until a first-instance (not necessarily final) guilty verdict (Senate judgment of June 7, 2011 – VI ZR 108/10, BGHZ 190, 52 para. 25; BVerfG, NJW 2009, 3357 para. 20). Something else cannot be inferred without violating the presumption of innocence from the point of view that the defendant has broken the legal peace. Even a confession would only mean that the presumption of innocence could only be held against the image reporting to a limited extent (see BVerfG, wistra 2012, 145 para. 8; NJW 2012, 2178 para. 21; ECtHR, judgment of September 21, 2017 – 51405/12, NJW 2018, 2461 para. 51 – Axel Springer SE and RTL Television GmbH v. Germany). However, individualized image reporting about the accused in criminal proceedings is not always ruled out. Rather, the respective circumstances may justify that the person concerned cannot or can no longer invoke their general right of personality with any weight. This applies, for example, if he is in the public eye in a special way by virtue of his office or because of his socially prominent responsibility or prominence and the media publicity has to be accepted in consideration of this (see BVerfG, NJW 2009, 2117 para. 23, on the court-ordered prohibition of image recordings in the main hearing).
b) Measured against these principles, prior to the criminal conviction at first instance, but at any rate during the non-public investigation proceedings, the portraits of the plaintiff were not yet part of contemporary history. In particular, at this early stage of the criminal proceedings, despite the seriousness of the alleged offense, the public had no overriding interest in being informed about the identity of the plaintiff, including his appearance, by means of a portrait photo with only the eye area covered. With this identification going beyond the accompanying text information, the plaintiff was exposed to the risk of considerable social disregard by the public, although (even when the action for injunctive relief was filed) no charges had even been brought.
c) A different assessment does not result from the fact that even before the reports in dispute, media such as JUVE and the blog \”Roll on Friday\” had speculated about the reasons for his resignation from the law firm L. with full attribution and with unpixelated photos of the plaintiff and had spread the allegation that the plaintiff had \”gotten too close\” to a female student. As the Court of Appeal correctly stated in another context, this did not spread the suspicion of rape.
In addition, the target group of the industry-specific, partly English-language media mentioned by the defendants in this respect is completely different and significantly smaller than the circle of recipients of the various forms of publication of BILD. C.
The second defendant’s appeal is well-founded insofar as it concerns the verbal and image reporting in other respects. The plaintiff, who has not declared the legal dispute to be settled in this respect, has no claim to refrain from disseminating the other challenged statements in the article of February 22, 2015 and to disseminate the plaintiff’s portrait in this context.
1. the truthfulness of the statements – the plaintiff had pushed a female student onto a secluded staircase outside the Cavos restaurant and whispered obscenities in her ear, including \”You are the hottest sow\”, and/or – in this context the student had resisted the plaintiff so that her dirndl was torn, and/or – she had begged him to finally stop, this had left the plaintiff cold, he had taken off her panties and opened his trousers,
(hereinafter: statements 4 to 6)
has not been clarified in this legal dispute. In particular, the content of the criminal judgment has not yet been introduced into these proceedings. Therefore, despite the final conviction of the plaintiff, the principles of reporting on suspicion apply in this respect. According to these principles, a factual allegation, the truth of which is unclear and which concerns a matter that significantly affects the public, may not be prohibited to the person who makes or disseminates it as long as he may consider it necessary for the protection of legitimate interests (Art. 5GG, § 193StGB). This can only be invoked if sufficiently careful research is carried out into the truth of the allegation before it is made or disseminated. A minimum amount of evidence is required that supports the truth of the information and thus gives it “public value”. Furthermore, the report must not contain any prejudgement of the person concerned; in other words, it must not give the incorrect impression that the person concerned has already been convicted of the offense of which he or she is accused. A statement from the person concerned must also be obtained before publication. Finally, it must be a matter of serious importance, the disclosure of which is justified by the general public’s need for information (cf. Senate judgments from February 16, 2016 – VI ZR 367/15, NJW-RR 2017, 31 para. 22, 24; of December 17, 2013 – VI ZR 211/12, BGHZ 199, 237 para. 26; of December 11, 2012 – VI ZR 314/10, AfP 2013, 57Rn. 26; in each case with further references).
Since these statements are not covered by the plaintiff’s declaration of settlement and it is therefore only necessary to examine whether they should be refrained from in the future, it cannot be disregarded that the plaintiff has been finally convicted of rape, i.e. that the relevant proof of truth has been provided.
a) If this circumstance is taken into account, there is no (longer) a lack of the minimum amount of evidence required for the reporting of suspicion, which speaks for the truthfulness of the information and thus gives it “public value”. Statements 4 to 6 can be found in the 14-page criminal complaint by the lawyer S. referred to in the findings of the Court of Appeal. Although he was not a direct witness to the event, he was a hearsay witness who, according to his very detailed complaint, spoke to the victim shortly after the crime and was able to make his own observations of her completely distraught state. His criminal complaint proved to be true with regard to the allegation of rape. This means that there is also the minimum amount of evidence required for the details of the course of events described in the criminal complaint.
b) According to the factual findings of the Regional Court referred to by the Court of Appeal, the plaintiff was given the opportunity to comment on the criminal complaint by lawyer S. in the email inquiry of February 19, 2015. The reporting in the contested article reflects what “should” have happened according to the criminal complaint filed by lawyer S.; it uses the subjunctive mood throughout. At the same time, it is stated that the plaintiff’s defense lawyer denies any criminal act. The reporting is therefore at least balanced in this respect; the balance of the article with regard to the allegation of rape as such is no longer relevant after the final conviction.
c) Finally, at least since the plaintiff’s final conviction, the description of the course of the crime is a matter of serious importance, the disclosure of which is justified by the general public’s need for information. In the case of serious violent crimes, the public’s interest in more detailed information, including about the course of the crime, generally goes beyond mere curiosity and sensationalism (Senate judgments of 19 March 2013 – VI ZR 93/12, NJW 2013, 1681, para. 18; of 8 May 2012 – VI ZR 217/08, NJW 2012, 2197, para. 38; in each case with further references; BVerfG, NJW 2009, 3357, para. 18). This also applies in the present case. This is because the description of the alleged offense illustrates the plaintiff’s self-image as a partner in a renowned law firm and supervisor of the employee R., who, in the seemingly relaxed atmosphere of a party, crossed every boundary both verbally and by imposing physical proximity up to and including rape. With regard to the freedom of the press, it is not necessary to examine whether it was necessary to describe the details. In contrast, the social disapproval experienced by the plaintiff as a result of the rape conviction is not significantly exacerbated by the description of the alleged course of events.
2. the statement that the plaintiff had claimed that he had kissed the employee,
(hereinafter: Statement 7)
is legally permissible.
Contrary to the opinion of the Court of Appeal, there is no lack of a minimum amount of evidence. According to the factual findings in the appeal judgment, the plaintiff argued in his defense that there had been consensual sexual contact between him and the employee R.. The allegation that he had “kissed” the employee does not go beyond this, but falls short of this. It also fits in with the statement made by the defense lawyer in the article that the plaintiff denies any criminal offense. Against this background, it is not apparent why the statement should violate the plaintiff’s right to privacy. In particular, the plaintiff cannot claim that the event (\”kissing\”) affects his privacy. This is because it is a defense against an accusation of rape; however, the commission of a sexual offense is not part of the perpetrator’s private sphere (see only Senate judgment of 17 December 2013 – VI ZR 211/12, BGHZ 199, 237 para. 17; BVerfG, NJW 2009, 3357 para. 26).
D.
Finally, the appeals are also well-founded insofar as the Court of Appeal confirmed the first-instance order that the defendant provide information on the extent to which the contested word and image reports were made (distribution area and circulation of BILD am SONNTAG of February 22, 2015; duration of accessibility and number of retrievals of the disputed article from February 23, 2015 at www.bild.de). The Court of Appeal erred in law by overlooking the fact that the provision of the requested information is not necessary to assert the claims for damages and monetary compensation.
1) Under special circumstances, a claim for information may exist if there is an infringement of rights, the information is necessary for prosecution and can be provided by the infringer without difficulty (Senate judgment of June 24, 2008 – VI ZR 156/06, BGHZ 177, 119 para. 29; Burkhardt in Wenzel, Das Recht der Wort- und Bildberichterstattung, 6th ed., ch. 15 para. 7).
2. in the present case, the requested information is not necessary for the assertion of claims for material damages and monetary compensation – assuming that such claims exist – because it is not required for this purpose. This was confirmed by the plaintiff’s legal representative at the appeal hearing as far as the assertion of material damages is concerned. However, the information is also not required for the assertion of a possible claim for monetary compensation, because the plaintiff does not have to quantify a claim in this regard, but can leave the assessment of the amount of monetary compensation to the discretion of the trial judge, who is responsible for the assessment (see Senate judgment of December 17, 2013 – VI ZR 211/12, BGHZ 199, 237 para. 46). The extent of the dissemination of a publication that damages a person’s reputation can – in addition to all other circumstances of the individual case – play a role both in the question of whether the violation of the right of personality is so serious that the payment of monetary compensation is necessary and in the determination of the amount of monetary compensation (Senate judgment of December 17, 2013 – VI ZR 211/12, BGHZ 199, 237 margin no. 38, 48, 53 f., 71). However, it is not necessary to determine the exact publication figures or the number of views from the Internet in order to bring an action for monetary compensation (see Burkhardt in Wenzel, Das Recht der Wort- und Bildberichterstattung, 6th ed., ch. 15 para. 8). In the case of well-known print media such as BILD am SONNTAG in the present case and internet portals such as www.bild.de in the present case, a comparatively high degree of dissemination can generally be assumed. The plaintiff does not need any further information to pursue a possible claim for monetary compensation.
3 It can therefore be left open whether the reasoning of the court of appeal can be used to assume a claim for monetary compensation as the main claim, the existence of which would require a claim for information as an auxiliary claim (see Senate judgment of February 27, 2018 – VI ZR 489/16, BGHZ 217, 350 marginal no. 55; Burkhardt in Wenzel, Das Recht der Wort- und Bildberichterstattung, 6th edition, chapter 15 marginal no. 7). The asserted claims for compensation and damages will only be decided in the next stage of the proceedings by final judgment. When deciding on the claim for monetary compensation, however, it will have to be taken into account that, despite the fact that the identifying reporting was initially inadmissible, a circumstance has arisen with the final conviction of the plaintiff for rape, which is likely to counteract the weighting of the interference as serious (see Senate judgment of December 17, 2013 – VI ZR 211/12, BGHZ 199, 237 para. 38, according to which the possibility that a factual allegation could prove to be true must already be taken into account). It seems quite conceivable that the impairment caused by the issuance of the preliminary injunction and by the partial determination of the settlement with the reasons given in this judgment on the original merits of the action can be sufficiently absorbed.