Key Points at a Glance
- Success for activelaw: Injunctive relief averted — the firm successfully prevented two clients from being silenced by court order.
- Critical reporting on a company under criminal investigation: The clients had reported critically on a company that had come under scrutiny due to criminal investigations against employees.
- Attempt to ban the article failed: The company sought to prohibit the article as long as it allowed identification, which activelaw successfully opposed.
- Regional Court of Cologne: Public interest protects reporting — the court held (decision not yet final) that reporting cannot be prohibited across the board and that any objectionable statements must be specifically identified.
- Conflict with Stuttgart ruling: The judgment contradicts a decision by the Higher Regional Court of Stuttgart, meaning the Federal Court of Justice may ultimately decide the matter.
Detailed Account
activelaw successfully opposed an attempt to silence two clients through judicial means. The clients had published an article critically addressing incidents within a company. These incidents led to criminal investigations and the issuance of penalty orders against two employees of the company, at least one of which has become final and binding.
The company and its shareholders applied for a prohibition of the entire article as long as it allowed their identification.
activelaw countered that reporting which renders a company and its shareholders identifiable cannot be prohibited per se. The events reported are of considerable public interest and fall within the so-called social sphere. Accordingly, the company and its shareholders could, at most, seek to prohibit specific statements—but only if those statements were untrue and not protected under the principles governing suspicion-based reporting. Such statements would have to be specifically identified by the claimant. Failure to do so renders the claim inadmissible if directed at individual statements, or unfounded if it seeks a blanket prohibition of identifying reporting.
In its (non-final) judgment of May 8, 2024 (Case No. 28 O 507/23), the Press Chamber of the Regional Court of Cologne adopted this reasoning. The court clarified that, pursuant to Section 253(2) No. 2 of the German Code of Civil Procedure (ZPO), a claim is sufficiently specific only if it clearly defines the asserted right through quantification or precise description, thereby delineating the scope of judicial decision-making.
This requirement is not met where a claimant seeks to prohibit the continued dissemination of an identifying article without demonstrating that each statement within the article is unlawful, and where the prohibition is instead derived from an overall assessment of all statements contained therein.
Statement by Attorney Dr. Sven Dierkes
The decision of the Regional Court is both comprehensible and correct. Moreover, it is of guiding significance. In parallel proceedings, the Higher Regional Court of Stuttgart granted an application for a preliminary injunction aimed at a blanket prohibition of an identifying article. Notably, it failed to address whether such a prohibition is permissible where large parts of the article consist of lawful statements. This is plainly unconstitutional.
A non-specific prohibition of identifying reporting can only be justified, in light of the freedom of expression protected under Article 5 of the German Basic Law, where identification is per se inadmissible due to overriding interests—such as the protection of the intimate sphere. As a rule, such a prohibition cannot be granted in cases like the present, which concern criticism of events within a commercial enterprise.
The Regional Court of Cologne therefore rightly reached a different conclusion, referring to a preliminary indication issued by the Higher Regional Court of Cologne. Should the latter uphold this view on appeal, the Federal Court of Justice is likely to have the final say. If the Higher Regional Court of Stuttgart maintains its position in the main proceedings, conflicting legal interpretations between two Higher Regional Courts would arise regarding the specificity required for claims seeking injunctive relief in defamation law. This would necessitate the admission of an appeal on points of law pursuant to Section 543(2) No. 2 Alt. 2 ZPO.
Conclusion
The decision of the Regional Court of Cologne underscores the importance of press freedom and establishes clear limits on blanket prohibitions of identifying reporting. It ensures that companies and their shareholders cannot easily suppress critical coverage. If upheld by the Higher Regional Court of Cologne, this landmark ruling may significantly influence future press law cases and could ultimately require clarification by the Federal Court of Justice.
