One of the main tasks of the press is to investigate and report on criminal acts and abuses. In this context, the press and bloggers have an increased obligation to verify the truth, content and origin of the suspicion. According to the case law press reporting on pending criminal cases and trials, particular restraint is also required in the case of reporting that makes it possible to identify the person concerned.
The Threat of damage to reputation
Because of the danger that the public will equate the mere initiation of an investigation with proof of guilt, and therefore that even if proceedings are later dropped, it cannot be ruled out that the accusation of guilt will nevertheless be classified as correct, increased requirements must be placed on the journalistic duty of care.
The courts, not least the Federal Court of Justice (BGH, ruling of December 7, 1999 – VI ZR 51/99), have established criteria for the admissibility of press reporting on pending criminal cases and trials: a minimum level of evidence and the reporting must not lead to a preliminary conviction. A statement from the person concerned must also be obtained on a regular basis before publication. And last but not least: it must be a matter of serious importance to the public.
Prerequisite: minimum level of evidence
Reporting on pending criminal cases and trials on an ongoing police or public prosecutor investigation is only permissible if there is a minimum amount of evidence that speaks for the truthfulness of the information and thus gives it publicity value (OLG Dresden, judgment of August 21, 2018 – 4 U 255/18) According to case law, the requirements for journalistic due diligence are to be set higher the more seriously and sustainably the reputation of the person concerned is affected by the publication. The mere initiation of preliminary proceedings is not sufficient for this purpose, as the investigations may also have been initiated on the basis of groundless accusations. This is different if there is a warrant for arrest or an indictment. In the case of an arrest warrant or indictment, the media may rely on the fact that the required minimum of evidence is available.
Prerequisite: no prior conviction of the person concerned
Since the presumption of innocence applies, the reporting must not constitute a preliminary conviction of the person concerned, i.e., it must not create the incorrect impression that the person concerned has already been convicted by means of a prejudicial presentation. This is also reflected in Section 13 of the Press Code, which, however, only represents a voluntary commitment. The guideline states under 13.1: “Reporting on investigative and judicial proceedings serves the purpose of carefully informing the public about criminal offenses and other violations of the law, their prosecution and judicial evaluation. In doing so, it must not prejudge. The press may refer to a person as a perpetrator if he or she has made a confession and there is also evidence against him or her, or if he or she committed the crime in full view of the public. In the language of reporting, the press is not bound by legal terminology that is irrelevant to the reader.”
Prerequisite: no sensational, deliberately one-sided or distorted presentation
A sensationalist, deliberately one-sided or distorted account is inadmissible. The facts and arguments presented in defense of the person concerned must also be taken into account, which regularly requires obtaining a statement from the suspect.
In addition, it must be a matter of serious weight, the communication of which is justified by a need for information on the part of the general public (BGH ZUM 2000, 397 f.; Senate NJW 2004, 1181 ff., 1182). Crimes are part of current affairs; reporting on them is the original task of the media. In the case of serious crimes, identifying reporting is also permissible in principle (BGH ZUM 2006, 323). This also applies to a certain extent insofar as it is merely a matter of suspicion of a criminal act. If the media were only allowed to disseminate information that cannot seriously be doubted, they would not be able to adequately perform their function of contributing to the formation of public opinion and monitoring undesirable developments in the state and society (BGH NJW 1977, 1288 et seq.; OLG Köln AfP 2001, 524).
(ZUM-RD 2019, 529, beck-online)
Prerequisite: the person concerned must be heard
Consequences of inadmissible suspicious activity reporting
If the suspicious activity report is inadmissible, action can be taken against it by means of a warning letter, in which claims for injunctive relief are enforced. This is usually directed against the identifiability of the person concerned, not against the reporting as such. In the case of serious violations of personal rights, it is possible to claim compensation for pain and suffering. However, the requirements for this are high – “normal” reporting alone does not trigger claims.
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