CASE OF AXEL SPRINGER AG v. GERMANY (No. 2)
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
6. The applicant company is a public limited company with its registered office in Hamburg. Among other activities, it is the publisher of the mass-circulation daily newspaper Bild. 7. On the evening of 22 May 2005, after his party (the Social Democratic Party (SPD)) had suffered a heavy election defeat in the Land of North Rhine-Westphalia, Federal Chancellor Gerhard Schröder, who had been in power as head of the Federal Government since 1998, announced that parliamentary elections would be brought forward to autumn 2005 from their scheduled date in September 2006. Because the early elections could not be held until the Bundestag (German Federal Parliament) had been dissolved – a process which could only take place by order of Federal President of Germany after a motion of confidence in the Federal Chancellor had been defeated – Chancellor Schröder called a vote of confidence on 1 July 2005 and lost it, with 148 of the 304 members of parliament from the parties making up his government abstaining as requested by the Chancellor. On 21 July 2005 Federal President Horst Köhler dissolved the Bundestag. This means of securing the dissolution of Parliament prompted discussions in public and among members of parliament, and was also the subject of appeals to the Federal Constitutional Court, which, by a majority, dismissed them and ruled that the disputed procedure was in conformity with the Basic Law (see in particular the decision of 25 August 2005, nos. 2 BvE 4/05 and 7/05). 8. The elections were held on 18 September 2005. None of the main political parties emerged victorious with a sufficient majority, but the parties forming the outgoing Schröder government (the SPD and the Greens) lost their majority. Subsequently, the conservative parties (the CDU and CSU) and the SPD agreed to form a coalition headed by Ms Angela Merkel, the candidate for the CDU and CSU. On 22 November 2005 Mr Schröder left office and Ms Merkel was elected as the new Federal Chancellor. 9. On 9 December 2005, at a ceremony to mark the start of work on the Baltic Sea gas pipeline (“Ostseepipeline”), it was announced that Mr Schröder had been appointed chairman of the supervisory board of the German-Russian consortium NEGP (Konsortium Nordeuropäische Gaspipeline). The aim of the consortium, which had its registered office in Switzerland and was controlled by the Russian company Gazprom, was to build a gas pipeline to supply Russian gas to western Europe. The agreement on the principle of building the pipeline had been signed on 11 April 2005 by the German company BASF and Gazprom in the presence of Mr Schröder and the Russian President Vladimir Putin. The signing of the contract itself, initially scheduled for mid-October at an energy summit in Moscow, had taken place on 8 September 2005 – again in the presence of Mr Schröder and Mr Putin – ten days before the early elections. 10. On the day of the announcement, a member of Bild’s editorial staff attempted to contact the deputy spokesperson for the government, S. (who had continued to occupy this post under the new government), for information on the subject but received no reply. The following day he made a further attempt, which was likewise unsuccessful. Following a third request later that day, the deputy spokesperson informed the journalist that Mr Schröder had nothing to add to his statement of 9 December 2005 in which he had indicated his willingness to accept an offer from the consortium partners to take up a position on its supervisory board. 11. On Sunday 11 December 2005 a Bild journalist called the vice-chairman of the parliamentary group of the Free Democratic Party (FDP), Carl-Ludwig Thiele. 12. In a sworn statement of 14 December 2005 the journalist affirmed that Mr Thiele had wondered whether Chancellor Schröder had already spoken to the Russians about a lucrative position before calling the early elections in May 2005. When asked by the journalist what he meant, Mr Thiele had replied: “The early election gambit must now be seen in a new light”. The journalist had then asked Mr Thiele whether he meant that Mr Schröder might have triggered the fresh elections on the basis of promises from Russia. Mr Thiele had replied: “That’s a question we need to ask”. He had added that, from his own experience in politics, a matter involving such a major change in personal activity must have been settled well before May. He had then asked two further questions: “Did Schröder want to resign because he had been offered lucrative positions? Did he have personal motives in deciding to call early elections in a politically desperate situation?” According to the statement, Mr Thiele had agreed for his comments to be quoted. On 14 December 2005 the journalist called Mr Thiele again and asked him whether, in the light of the warning (Abmahnung) which Mr Schröder had issued to Bild, he still stood by his comments; Mr Thiele confirmed that he did. 13. In its edition of 12 December 2005 Bild published a front-page article with the headline: “What does he really earn from the pipeline project? Schröder must reveal his Russian salary.” On page 2 of the newspaper, under the headline “Russian salary – will Schröder earn more than a million a year?” the article read as follows: “The ex-Chancellor and Russian gas: there is growing outrage among all political parties. For Schröder is to head the supervisory board of a business seeking to build a four-billion-euro gas pipeline through the Baltic Sea from Russia to Germany. While he was Chancellor, he pushed this project through despite considerable resistance. Lower Saxony Prime Minister Christian Wulff (CDU) called on Schröder to act, either by declining the chairmanship of the NEGP consortium’s supervisory board, or by revealing all his income from his Russian job! Wulff told Bild: ‘Through his behaviour Gerhard Schröder has seriously damaged the reputation of politics in Germany. Schröder must decline the job of supervisory board chairman, because otherwise this may create the impression of being a reward for promoting the pipeline.’ The politician added: ‘If Schröder nevertheless accepts his appointment to the supervisory board, he must disclose what he is getting paid. This is a requirement under the regulations on disclosure [of income], which were toughened up by the Schröder government this year. The fact that the pipeline company has its headquarters in Switzerland is no reason for the former Federal Chancellor not to abide by these rules.’ Insiders reckon that Schröder is pocketing more than a million dollars a year for his gas job. After all, the Russians are not stingy. For example, five supervisory board members of the Russian company Northgas, a Gazprom subsidiary, have received payments totalling seven million dollars. The fact that Schröder is walking into the joint German-Russian venture so soon after leaving the Government has been met with incredulity across all political parties. One particularly delicate matter is that on 11 April the Russian energy giant Gazprom and the German [company] BASF signed a memorandum in Hanover for the joint exploitation of a Russian gas field, in the presence of Schröder and Russian head of State Vladimir Putin. Following the signing, the two government leaders stayed up late drinking red wine together. Was Schröder’s recruitment to the multinational gas company already being discussed at that time – six weeks before he called the early elections? The vice-chairman of the FDP parliamentary group, Carl-Ludwig Thiele, said: ‘That’s a question we need to ask!’ Thiele has a monstrous suspicion: ‘Did Schröder want to resign because he had been offered lucrative positions? Did he have personal motives in deciding to call early elections in a politically desperate situation?’ The early election gambit should ‘now be seen in a new light’, he added. Peter Ramsauer, chairman of the CSU parliamentary group in the Bundestag, said: ‘You don’t make a deal like that overnight, and Gerhard Schröder was still Chancellor three weeks ago. He should now lay his cards on the table and say whether these agreements had already been reached while he was in office.’ The vice-chairman of the CDU parliamentary group, Wolfgang Bosbach, added: ‘Schröder should finally say what’s going on (was Sache ist)!’ The economic affairs spokesperson for the Greens parliamentary group, Matthias Berninger, said: ‘Schröder must now ensure maximum transparency and disclose his contract and remuneration.’” 14. The article on page 2 was accompanied by a photograph of Mr Schröder wearing a chapka on his head. Further down there was a short article stating that the NEGP consortium was headed by a former major from the State Security Ministry of the former German Democratic Republic, who was a friend of Mr Putin. 15. Mr Schröder’s appointment as chairman of the supervisory board gave rise to public debate and was reported in the media and discussed in the German Parliament, in particular on 15 December 2005. 16. An article published in Focus magazine (no. 50/2005) on 12 December 2005 stated that a journalist from the magazine had contacted the Schröder government in August 2005 to find out whether indications from Moscow that Gazprom was preparing a post for Mr Schröder were true. The government spokesperson had said that this was absurd and denied the existence of any such offer. 17. In April 2006 it emerged that in late October 2005, while government business was still being conducted on an interim basis by the outgoing government pending Ms Merkel’s election as Chancellor, guarantees had been signed whereby the German government agreed to underwrite a loan of one billion euros from two German banks in favour of Gazprom and part of the pipeline. Mr Schröder indicated that he had had no knowledge of the signing of the guarantees and Gazprom stated that it had not made use of them. 18. On an unspecified date in 2006 Gerhard Schröder sought an injunction in the Hamburg Regional Court prohibiting any further publication of the following passage of the article: “Thiele has a monstrous suspicion: ‘Did Schröder want to resign because he had been offered lucrative positions? Did he have personal motives in deciding to call early elections in a politically desperate situation?’” 19. In a judgment of 24 June 2005 the Regional Court granted the injunction. It held in particular that the quotation in issue was neither a factual allegation nor a value judgment but mere speculation in the form of questions, the legality of which was a matter for assessment in the light of the principles established for reporting on suspicions (Verdachtsberichterstattung). According to these criteria, the courts had to assess whether the impugned report concerned a matter of public interest, whether there was a sufficient factual basis for the speculation, whether the newspaper had been sufficiently diligent in carrying out its research and in deciding to publish the report, and whether the nature of the report made it sufficiently clear that what was being reported was speculation and that the factual reality might be different. The regional court held that the publication of the passage in issue in the case before it did not satisfy these criteria in so far as the applicant company had not sought to obtain Mr Schröder’s views on the matter beforehand and had not established a sufficient factual basis to justify publishing the passage in question. 20. In a judgment of 8 April 2008 the Hamburg Court of Appeal upheld the Regional Court’s judgment. It held that the publication of the offending quotation breached Article 823 § 1 of the Civil Code, in conjunction with Article 1004 § 1 (by analogy) of the Civil Code and the right to protection of personality rights (Allgemeines Persönlichkeitsrecht – see “Relevant domestic law and practice”), because it suggested to readers of the newspaper that Chancellor Schröder had taken the decision to hold early parliamentary elections on the basis of private considerations motivated by self-interest. The Court of Appeal found it unnecessary to determine whether the quotation in issue amounted to a genuine (open) question or a factual allegation in the form of a question, since the applicant company had conveyed a suspicion which could also have been formulated as a question. The Regional Court had thus been correct in applying the criteria for reporting on suspicions. 21. The Court of Appeal observed that the report published by the applicant company did not merely reproduce what Mr Thiele had said, but the quotation had formed part of a significantly longer article intended to steer readers in a certain direction. It further pointed out that the article had begun by saying that Mr Schröder and the Russian President Putin had met in April 2005, and had then asked whether Chancellor Schröder’s activities on behalf of Gazprom had been discussed on that occasion. In the court’s view, this encouraged readers to believe that it was possible that an agreement had been reached for Mr Schröder to take up a private-sector post and that he had used the election defeat in North Rhine-Westphalia as a pretext for triggering a series of events that would lead to his leaving office as Chancellor. It added that this line of thinking was borne out by the two questions in the quotation in issue and the use of the phrases “early election gambit” and “must now be seen in a new light”. 22. The Court of Appeal observed that the principles for reporting on suspicions applied to the case before it, although the report in question had not contained any suspicion that Mr Schröder had committed a criminal offence. What was decisive in the court’s view was that the applicant company had conveyed a suspicion entailing a serious and damaging accusation against the former Chancellor. The article had suggested that he had misled the general public and the electorate about the true reasons for his decision to call early elections and that he had prioritised his own financial interests over the common good, which he was required to serve as Federal Chancellor. The Court of Appeal considered that this was one of the most serious accusations that could be levelled against a person who had formerly held one of the highest State offices. In its view, the quotation in issue confirmed the seriousness of the accusation by using the phrase “monstrous suspicion”. 23. The Court of Appeal added that the applicant company had not had due regard to the principles established for reporting on suspicions. According to these principles, any such reports had to concern a matter of justifiable public interest, have a minimum factual basis, set out the facts objectively by indicating both the circumstances supporting the suspicion and those pleading in favour of the person under suspicion, be published, in principle, after obtaining comments about the accusations from the person concerned and be the result of research satisfying the requirements of journalistic rigour. 24. Applying those principles to the case before it, the Court of Appeal noted firstly that the subject-matter of the report was in the public interest. It also accepted that there had been sufficient material to justify reporting on the suspicions in question. In that connection, it recapitulated the sequence of events forming the background to the article, namely that Mr Schröder had expressed support for the pipeline project throughout his time as Chancellor, that he had met President Putin at the signing of the declaration of 11 April 2005 by two Russian and German private-sector firms, that he had decided to hold early elections at a time when his political party had been in difficulty following its election defeat in North Rhine-Westphalia, that he had triggered a process resulting in his relinquishing the office of Chancellor and that – according to the Court of Appeal – it had emerged that between the date of the early elections and his last day as Chancellor, Mr Schröder had secured a very well-paid post in a consortium controlled by Gazprom. 25. The Court of Appeal added that it was especially legitimate to ask how Mr Schröder could have secured that post as the events in question belonged to an area of fundamental importance in shaping public opinion. It pointed out that the requirements for assessing the legitimacy of such a report should not be too stringent. Otherwise, there was a risk that the media would be limited to commenting on politicians’ conduct only where there was substantial evidence corroborating the suspicions raised. Such a restriction, however, was not acceptable in this sphere. The Court of Appeal noted that anyone who attracted public attention, such as politicians, had to accept that the threshold beyond which their conduct could be investigated by the media was lower than that applicable to anyone not in the public domain. 26. The Court of Appeal added that the impugned publication had lacked objectivity and balance. It pointed out that the version of events set out in a report should not amount to a prejudgment (Vorverurteilung) of the person concerned. This was not only the case where the report gave the impression that the person had in fact done what he or she was suspected of doing, but also when a report was intentionally biased and distorted the facts for sensationalist purposes, without regard to the circumstances militating in favour of the person concerned. In the Court of Appeal’s view, this was what had happened in the case of the report in issue, since it had made no mention of any factors casting doubt on the accusations made but had referred solely to circumstances corroborating the suspicions, which to a certain extent were concentrated within the offending quotation. 27. In this connection the Court of Appeal observed that the report did not mention that the May election defeat in North Rhine-Westphalia had considerably weakened the authority of the government majority at federal level and could have constituted a valid reason for asking the electorate, by means of early elections, whether it still supported this majority. Likewise, the report did not mention anywhere that Chancellor Schröder had not adopted an attitude of resignation but rather had been active and combative throughout the election campaign. Lastly, the Court of Appeal found that at the time of the article’s publication there had been no information from anyone close to Mr Schröder to suggest that he had based his decision to call early elections on grounds that were spurious (sachfremd). 28. The Court of Appeal added that the applicant company had no basis for arguing that these circumstances were so well known to readers that there was no need to reiterate them in the report, since the entire article had sought to suggest to readers that there were no circumstances casting doubt on the facts as presented. Similarly, the fact that the subject of the report was of considerable public interest could not exempt the applicant company from its duty to present a balanced account of the facts. On this point, the Court of Appeal emphasised that the applicant company was not prevented from criticising Mr Schröder. However, in view of the extremely serious accusation being made, it could have been expected to indicate that the facts had yet to be established. 29. The Court of Appeal held, lastly, that the applicant company had not carried out sufficient research before publishing the article. It considered that irrespective of whether the politician quoted in the article should have been required to conduct his own research before raising his questions, the applicant company had had a duty to clarify the facts further before publicly reproducing those questions, which concerned extremely serious allegations. It pointed out that there had been sufficient connecting factors in this regard. For example, the applicant company could have contacted the consortium in Switzerland, Mr Schröder himself or one of his team to find out when the post for the former Chancellor had been planned or created, when he had discovered the existence of the post and when and by whom the post had been offered to him. The Court of Appeal added that the fact that other media outlets had reported on similar suspicions could not release the applicant company from its duties. Moreover, the company had not asked Mr Schröder for his views. In the Court of Appeal’s opinion, irrespective of whether the views of the person concerned should always be sought when suspicions were being reported, the press had a duty in any event, in order to satisfy the requirements of journalistic rigour, to contact the person concerned when publishing speculation relating to that person’s motives, provided that the person could be reached for comment. The Court of Appeal concluded that this duty had been all the more compelling in the case before it, in view of the especially serious nature of the allegation being made. 30. In a decision of 13 January 2009 the Federal Court of Justice refused the applicant company leave to appeal on points of law, holding that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. 31. On 18 February 2010 a chamber of the Federal Constitutional Court decided not to accept for adjudication a constitutional appeal by the applicant company (no. 1 BvR 368/09). It declined to give reasons for its decision.