Axel Springer Wins With the Support of Raue LLP for Freedom of Press Before the German Federal Constitutional Court

Raue LLP successfully represented Axel Springer before the German Federal Constitutional Court. In the constitutional complaint, the publishing house appealed against decisions of the Berlin Regional and Appellate Courts requiring it to print a counterstatement by the former tennis player Boris Becker on the title page of the famous German newspaper BILD.

The background.

On July 19, 2017, BILD reported on Boris Becker’s loan agreements with the businessman Dr. Hans-Dieter Cleven with the title

“BILD EXCLUSIVE million creditor reveals

Boris also pawned his mother’s house!”

Boris Becker replied by way of the title counter-statement:

“I didn’t pawn my mother’s house.”

In fact, Boris Becker had the house, in which his mother has a lifelong right of residence, entered on a “list of securities” to secure a loan of almost 42 million Swiss francs. Thus, the lender was entitled to register a lien on real property with regard to the listed property. BILD colloquially described this process as “pledging”.

The decisions of the civil courts.

The Berlin Regional and the Appellate Court obliged BILD to publish the counterstatement on the ground that the objected statement constituted factual information accessible to evidence and was therefore capable of being countered. For an unbiased average reader, the term ‘pledge’ meant that the owner has given the item out of his hands and can no longer dispose of it, while the creditor has unilateral access to the item. A mere obligation to register a lien on real property was therefore not be accurately described from the point of view of the average reader.

The constitutional complaint.

In its constitutional complaint, the publishing house Axel Springer asserted that the term “pledging” was an evaluative statement against which no counterstatement was admissible. The average reader – a legal layman – had no concrete idea of the legal concept of ‘pledging’. Moreover, the counterstatement was inadmissibly misleading, since it concealed the fact that Boris Becker had his parents’ house entered on a “list of securities” if he had not already “pledged” it.

The decision of the Federal Constitutional Court.

The Federal Constitutional Court has granted the constitutional complaint. The courts of instance had wrongly classified the title headline as a factual assertion capable of being countered. If the contested statement contained a legal term, the Court of First Instance must not take its own legal expertise as a basis, but must focus on the understanding of an average newspaper reader. Moreover, the counterstatement “I have not pawned my mother’s house” was a mere negation of the title headline. A constitutionally admissible counterstatement claim must, however, serve the actual counterstatement and not the mere counterassertion or correction of unjustifiable legal assertions.

The consequences.

The decision of the Federal Constitutional Court reaches far beyond the individual case and is of fundamental importance. It concerns the use of legal terms in general and gives the courts of instance a yardstick as to which language understanding they must apply – and which not – when interpreting legal terms. This decision should also be decisive for decisions on injunctive reliefs. Since counterstatements often contain only a negation of the challenged assertion, but not a correcting explanation of what actually happened, this decision also points the way for further cases.

(20 December 2018)