CASE OF VERLAGSGRUPPE DROEMER KNAUR GMBH & CO. KG v. GERMANY
No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary
6. The applicant company is a prominent German book-publishing house with its registered office in Munich. In 2015 it was ranked among the ten publishing firms generating the highest turnover in the German publishing sector. 7. In September 2008 the applicant company published a book entitled “Mafia” written by Petra Reski, an author internationally renowned for her anti-Mafia publications. The book was reprinted in several editions and also published in Italy. It deals, in its 352 pages, with the Mafia’s ties to Germany, its inner structures and its various branches. The book also recounts an event which took place in 2007 in Duisburg where six people of Italian nationality were killed by fifty-six bullets in front of the Italian restaurant “Da Bruno”. The killings were supposed to be the culmination of a vendetta between two ‘Ndrangheta families which had started in 1991 in Italy. The incident received national and international media attention. 8. On pages 157 and 158 the book referred, by his full name, to a person called S.P., an Italian national residing in Germany. The relevant part reads as follows (translated, names abbreviated and emphasises added by the Court): “... The public prosecutor’s office of Stuttgart investigated the Calabrian [L] for drug dealing and money laundering – he is said to have contributed to financing the electoral campaign of [O] with his funds. This was not to remain the sole link existing between a presumed member of the ʽNdrangheta and a German politician: in the city of Erfurt, the Calabrian [S.P.], who had been mentioned already in 2000 in a report prepared by the Federal Office of Criminal Investigation, gained notoriety. [S.P.] runs the restaurant ‘[Pa]’ in Erfurt: a restaurant seating 400 guests, not a bad rise for someone like [S.P.], who, according to statements of the investigators, had started out as a pizza baker in the pizza restaurant ‘Da Bruno’. After all, having contacts can be very helpful, even if, following the massacre of Duisburg, the pizza restaurant ‘Da Bruno’ no longer serves as that great a reference. In any case, [S.P.] continued to maintain his network of relationships in Erfurt by generously sponsoring the local golf club. When the police performed a search of the restaurant ‘[Pa]’ because of [S.P.]’s alleged involvement in a murder, it ran into the then Prime Minister of Thuringia, [B.V.], and his Secretary of the Interior, [R.D.] – both of whom had been dining there purely as a matter of chance, as [S.P.] asserted. He, by the way, had excellent relations with the police: when a further search was performed, the police found an identity card in his premises, which had been issued to him in his purported capacity as interpreter for the Uzbek delegation at an Interpol conference in Rome. The identity card, it was stated, had been issued by the Secretary of the Interior of the Saarland. ...” 9. As regards S.P.’s presumed membership of the ‘Ndrangheta, the applicant company relied on, inter alia, reports by the German Federal Office of Criminal Investigation of 2000 and 2008. Neither report had been made public. 10. The relevant passage in the report of 2000 reads: “If one takes account of the enormous reputation that [S.P.] has and the esteem in which he is held by the Italian community, one forms the opinion that [S.P.] is a defacto fully-fledged member of the ‘Ndrangheta clan.” 11. The relevant parts of the report of 2008 read: “According to Italian colleagues from Calabria and Bianco, this connection could have contributed to [S.P.] becoming a member of the Romeo alias ‘Staccu’ clan. Owing to the prestigious reputation [S.P.] enjoys in the ‘Italian milieu’, he has to be a full member of the ‘Ndrangheta. ... Direct relatives of the clan live in Germany and run pizza restaurants. Their main bases are in the cities of Duisburg, Erfurt, and Leipzig. These bases are led by [A.M.], [D.G.] and [S.P.], with [D.G.] taking the role of the so-called ‘capo locale’. ... [D.G.] and [S.P.] could be in charge of investing the proceeds of drug trafficking. This theory is corroborated by the high number of good restaurants and statements from various sources that [S.P.] is said to have invested in several restaurants and acquired real estate in Dresden and the surrounding areas.” 12. In 1997 S.P. had already been mentioned by name in the context of organised crime. He had been interviewed in a television report regarding the ‘Ndrangheta in Thuringia and had denied any membership of or connection to the ‘Ndrangheta. 13. After publication of the book, S.P. applied to a court for an injunction against the dissemination of the passages highlighted in the above excerpt of the book (see paragraph 8 above). On 13 November 2008, the Munich Regional Court issued the injunction and confirmed it on 15 December 2008 after hearing both parties. It held that even though there was a public interest in reporting about organised crime, the author had acted in breach of her journalistic duties. The internal reports of the Federal Office of Criminal Investigation constituted an insufficient source for the allegations made in the book, since the reports were not intended for publication. The investigating authorities themselves had not come to the conclusion that there was sufficient evidence of an offence having been committed by the plaintiff. Moreover, the Regional Court stated, a report on a suspicion also had to include the circumstances exonerating the party affected. Accordingly, the book should have stated that the investigating authorities had not obtained any indications which would have served as a basis for filing an indictment, much less a sentence, and that in fact the investigations pursued against the plaintiff had not resulted in any such bringing of charges or in any sentencing. In addition, the court held, the publication had not made it clear that the pizza restaurant “Da Bruno”, in which the murders had been perpetrated, was not identical to the pizza restaurant of the same name in which the plaintiff had worked as a pizza baker many years prior to those deeds. Lastly, the court continued, the book had been published unlawfully because the plaintiff had not been given any opportunity to make a statement regarding the suspicion prior to publication. 14. On 7 April 2009 the Munich Court of Appeal dismissed the applicant company’s appeal against the Regional Court’s judgment of 15 December 2008. It held that the book expressed a serious allegation that the plaintiff was a member of a criminal organisation and therefore seriously interfered with his personality rights. The section of the book dealing with the plaintiff did not allow an average reader to infer that the plaintiff’s membership of the criminal organisation ‘Ndrangheta could only be assumed vaguely. Rather, the court continued, the interplay of the many individual statements in the book created the impression that there was a very strong suspicion that the plaintiff was a member of the ‘Ndrangheta. The evidentiary facts researched by the author and published by the applicant company did not constitute sufficient proof of the exceptionally grave suspicion raised in the book. The court established that even the internal report by the Federal Office of Criminal Investigation only mentioned a number of vague suspicious circumstances, for the most part without providing any details or naming any specific sources. For example, it said that because of the high respect in which the plaintiff was held in the “Italian milieu”, he must be a fully fledged member of the ‘Ndrangheta. The internal reports only showed that owing to certain information compiled in them, some of which had not been corroborated by evidence, assumptions had been made as to the existence of certain connections. This did not seem to be a sufficient basis for publicly branding the plaintiff as a presumed ʽNdranghetista. Moreover, the court continued, certain statements in the book were incorrect, such as the region in which the plaintiff had been born. Other statements were fragmentary, as the investigation during which the plaintiff’s restaurant was searched by the police had been discontinued. In that regard, the court held that the book had failed to report exonerating circumstances. Even though authors did not have to await the outcome of an investigation before reporting on a corresponding suspicion, if the reporting on a suspicion was reliant on investigations that had been carried out six or seven years previously, the author could not ignore the fact that the investigation proceedings had come to an end without any charges having been brought. 15. In the main proceedings, in addition to his request that the injunction be upheld, S.P. applied for damages in the amount of EUR 20,000. 16. On 22 June 2011, the Munich Regional Court upheld the injunction, but dismissed the plaintiff’s application for damages. The Regional Court reiterated the reasoning it had given in the judgment of 15 December 2008 and that given by the Court of Appeal in its judgment of 7 April 2009 (see paragraphs 13-14 above). The court further reiterated that the author had not sufficiently researched the basis for the allegation that S.P. was a member of the ʽNdrangheta, since all the sources only indicated vague suspicious circumstances pointing at S.P. Secondly, the author had not complied with the “absolute requirement” of presenting exonerating circumstances. Lastly, the court held that the publication was unlawful as the author had not given the plaintiff the possibility to comment on the allegation prior to publication. 17. The Regional Court dismissed the plaintiff’s application for damages as being ill-founded. It held that even though the applicant company had breached the permissible boundaries of reporting on suspicions as well as its journalistic diligence, it had not done so in a serious manner. Accordingly, it sufficed to stop the dissemination of the impugned statements but did not require a payment of damages. 18. During the proceedings before the Regional Court the applicant company offered to furnish certain evidence supporting the suspicion published in the book. In particular, it offered to provide the names of witnesses who could allegedly confirm the statements made in the internal report of the Federal Office of Criminal Investigation and the suspicion published in the book. The Regional Court refused to hear the witnesses as it found that they would be unable to give evidence regarding the alleged membership and that the applicant company had failed to identify the specific issues on which the witnesses could testify. 19. The applicant company did not appeal against the judgment of the Regional Court. The plaintiff, however, appealed against the dismissal of his claim for damages. Consequently, in so far as the judgment ordered the injunction, it became final. 20. On 29 November 2011, the Munich Court of Appeal, in addition to the injunction, sentenced the applicant company to pay damages in the amount of EUR 10,000 and dismissed the plaintiff’s further claim for damages. The court stated that the prerequisite for any entitlement to pecuniary compensation was a serious violation of personality rights which could not be compensated in any other way. It found that that prerequisite had been met in the plaintiff’s case. As far as the violation of the plaintiff’s personality right was concerned, the Court of Appeal endorsed the reasoning of the Regional Court. It expressly conceded to the applicant company that there was great public interest in obtaining information about criminal organisations and “that the motivation of the author and of the defendant [in the instant case: applicant company] for informing the public on the activities pursued by the ‘Ndrangheta in Germany was commendable and honest”. However, the Court of Appeal continued, the applicant company had acted culpably to a significant extent. It had been grossly negligent on the part of the applicant company to disseminate an allegation based on a suspicion which seriously interfered with the plaintiff’s personality right in spite of the fact that the plaintiff had obviously not been given an opportunity to be heard and that the allegation had been disseminated without including the necessary information that the murder investigation addressed by the book subsequently had been discontinued. This charge of gross negligence could not be put aside because the author had tackled a subject of strong public interest. The applicant company should have realised that the information compiled about the plaintiff was not corroborated by evidence and that there were insufficient evidentiary facts to support the allegation reported in the book. The applicant company could not argue that it had not acted culpably, as it had based its publication on information obtained from a governmental authority. That principle, the court held, had been developed by the courts in adjudicating for official press releases issued by German authorities. However, the author had relied solely on internal analyses prepared by the Federal Office of Criminal Investigation as well as evaluation reports and documents generated in the course of intra-agency communications between Italian government authorities. 21. The Court of Appeal further reasoned that the injunction was not sufficient redress for the plaintiff, as it was not an adequate means of reaching the readers of a book that had already been published. Consequently, it found that the payment of damages was required. The court held that compensation in the amount of EUR 10,000, instead of the EUR 20,000 claimed by the plaintiff, was both sufficient and adequate. 22. On 28 March 2012 the Munich Court of Appeal dismissed as illfounded a complaint lodged by the applicant company that it had been denied the right to be heard. 23. On 19 November 2013, the Federal Constitutional Court refused to admit a constitutional complaint (1 BvR 82/12) lodged by the applicant company, without providing reasons.