CASE OF FUCHSMANN v. GERMANY
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary
7. The applicant was born in 1947 and lives in Düsseldorf. He is an internationally active entrepreneur in the media sector and chief executive officer of the media company Innova Film GmbH. 8. He also holds the position of Vice-President of the World Jewish Congress and President of the Jewish Confederation of Ukraine. In 2010 the former mayor of New York, Michael Bloomberg, publicly honoured the applicant for his efforts to improve AmericanRussian relations. 9. On 12 June 2001, the daily newspaper The New York Times published an article about an investigation into corruption against R.L. A slightly changed version was also published on the newspaper’s website. The online version, which was the subject of the domestic proceedings (see paragraphs 12-20 below), reads, in so far as relevant, as follows (emphasis added and names abbreviated by the Court): “[L] Media Company Faces a Federal Inquiry By [R. B.] Published: June 12 2001 WASHINGTON, June 10— A company owned by [R.L.], the cosmetics heir and former New York City mayoral candidate, is under investigation by federal prosecutors over allegations that it paid at least $1 million in bribes to Ukrainian officials for a valuable television license, according to lawyers and Justice Department documents. The United States attorney in Manhattan, [M.W.], has empaneled a grand jury and issued subpoenas, and prosecutors are studying some 6,000 pages of documents from Central European Media enterprise, which [R.L.] founded in 1991 as part of a plan to build a media empire in Europe. It now owns television stations in several Central and Eastern European countries. In a Federal District Court filing in New York last year, [M.W.] sought the corporate documents, saying that they were needed for a criminal investigation into whether [R.L.]´s Central European Media had ‘made corrupt and unlawful payments to Ukrainian officials’ in violation of the Foreign Corrupt Practices Act, the federal law that prohibits American companies from paying bribes abroad. [R.L.] and the company did not challenge the request and turned over the documents, a lawyer said. The payments being examined took place in 1996 after Ukraine´s licencing body granted a potentially lucrative licence to [R.L.]´s company despite the fact that the Ukraine Parliament had imposed a ban on new licences. ... In Ukraine, Central European Media controls the most popular station through its majority-owned subsidiary Studio 1 + 1. Prosecutors are studying two transactions related to Central European Media’s Ukraine investment, according to documents and persons close to the investigation. In one, prosecutors are trying to determine if L’s company paid $1.2 million to two Lebanese businessmen living in Ukraine, who then distributed it to some members of Ukraine’s television licensing board. ... [R.L.]’s bid to gain the television license in Ukraine began in 1995. That year, he met in New York with [O.V.], a top adviser to Ukraine President [L.K.], to discuss business opportunities. The initial meetings between [R.L.] and his representatives and [O.V.] were not promising. ... [O.V.] suggested that [R.L.] team up with a new Ukrainian television broadcasting company, Studio 1 + 1, in Kiev, and he did. The principal owners were [V.R.] and Boris Fuchsmann, well known around Kiev for their influence and wealth. Less well known were their ties to Russian organized crime, according to reports by the F.B.I. and European law enforcement agencies. [V.R.], who no longer has an interest in 1 + 1, has denied any links to Russian organized crime. Mr. Fuchsmann did not respond to e-mail inquiries seeking comment on the licensing deal and the F.B.I.’s claim of his ties to organized crime, although an assistant confirmed that he had received the inquiries. A 1994 F.B.I. report on Russian organized crime in the United States described Mr. Fuchsmann as a gold smuggler and embezzler, whose company in Germany was part of an international organized crime network. He is barred from entering the United States. ... Besides Mr. Fuchsmann and [V.R.], there were other, silent owners of Studio 1 + 1. In one internal fax, in April 1996, [J] described the Studio 1 + 1 shareholders as ‘‘extremely powerful’ people whom, she added, ‘I will not mention on this fax.’ Central European Media now owns 60 percent of Studio 1 + 1, and Mr. Fuchsmann owns at least 30 percent, according to public statements. At the time it went into business with Mr. Fuchsmann and [V.R.], Central European Media did not conduct investigations into their backgrounds, according to a report by [R.L.]’s New York law firm, [D.&P.]. In their 20-page report, which the prosecutors now have, the firm’s lawyers said that [R.L.] had been justified in dealing with Mr. Fuchsmann and [V.R.] because they had been highly recommended by [O.V.], whom the lawyers described as ‘an ardent supporter of free-market business’. The lawyers also concluded that Central European Media had not engaged in any illegal or improper activities. They said they could not rule out the possibility that Studio 1 + 1 had made improper payments, though they did not believe it had. The Ukraine’s television licensing board issued a broadcast license to Studio 1 + 1 not only in spite of Parliament’s moratorium, but with only four of the board’s eight members present; the law required at least six members for a vote. A few days after the license was issued, Central European Media transferred $1.4 million to International Teleservices of Belize, according to a C.M.E. Wire Transfer Request. That is the second transaction being looked at by prosecutors. The Belize company was indirectly owned by ‘many high Ukrainian officials,’ according to a second C.M.E. document, which did not name them. A third document shows that International Teleservices had paid this amount to a company in Germany owned by Mr. Fuchsmann, Innova, and that Innova had paid the license fees on behalf of Studio 1 + 1. Innova is part of a Russian organized crime network, according to U.S. and German law enforcement reports. It is not clear why such a circuitous route was used, and a person involved in the transaction, with inside knowledge of the owners of International Teleservices, said the $1.4 million payment was not for a license fee. He would not say what it was for. Central European Media officials were nervous about the license they won, and sought the opinion of two law firms in Kiev. Both acknowledged ‘the potential weaknesses’ of the broadcasting license, according to a C.M.E. document. One week later, O.V. had secured a letter from the Ukrainian justice ministry stating that the license was valid. Federal prosecutors, who opened their case in the wake of a number of private lawsuits challenging the legitimacy of the license award, have been examining documents for nearly a year, and the exact status of the investigation is not clear.” 10. On 28 May 2001, before publication of the article, the journalist had notified the applicant, via an email to one of his employees, of the planned publication and had asked several questions. On 30 May 2001 the journalist had made a follow-up telephone call to the employee, who confirmed that the applicant had received the questions. However, the applicant refrained from answering the questions or commenting on the planned publication. 11. Since 12 June 2001 the article, showing the date of first publication, is retrievable from the website of The New York Times. It can also be found through online search engines such as “Google” or “Bing”. 12. On 31 July 2002 the applicant sought injunctions against certain parts of the article (highlighted in the article, see paragraph 9 above), published in the print and online versions. 13. On 9 January 2008 the Düsseldorf Regional Court declared the applicant’s action inadmissible due to lack of international jurisdiction on the part of the German courts. It found that, at the material time, the print version of The New York Times was not distributed in Germany and that the Internet version of the newspaper was not directed at a readership in Germany. The Düsseldorf Court of Appeal confirmed that decision by its judgment dated 30 December 2008. On 2 March 2010 the Federal Court of Justice quashed the part of the decision regarding the applicant’s claim for an injunction against the challenged statements in the online version of the article and referred that part of the action back to the Court of Appeal. The court held that the online version of the newspaper was accessible from Germany, and because it mentioned a German businessman in the article, the publication had a direct connection with Germany and German jurisdiction. It therefore affirmed the international jurisdiction of the German courts in that respect. 14. On 22 June 2011 the Court of Appeal decided on the part of the dispute which had been referred back to it by the Federal Court of Justice. It granted the injunction in so far as the article stated that the applicant had been banned from entering the United States, and dismissed the remainder of the applicant’s action for lack of merit. The Court of Appeal held that German law was applicable with regard to the online publication, as the article was accessible in Germany via the Internet and therefore the alleged violation of the applicant’s reputation had at least occurred in Germany. 15. The court accepted that the statements interfered with the applicant’s reputation and personality right (allgemeines Persönlichkeitsrecht) as protected by Article 2 § 1 and Article 1 § 1 of the Basic Law (Grundgesetz). However, as the statements had been made in the press, which was constitutionally protected pursuant to Article 5 § 1 of the Basic Law, it was necessary to balance both interests. Moreover, as the statements concerned a suspicion against the applicant, the presumption of innocence arising from Article 6 § 2 of the Convention and from German law also had to be taken into account. The court held that there was in principle a public interest in reporting on criminal offences, including the suspicion of their commission. On the other hand, continued the court, the interference with the rights of personality associated with such reporting required higher standards of care for newspaper reporting, because even if the investigation was later discontinued, “something of the accusation might stick to the person affected”. Therefore, concrete, provable connecting facts which go beyond a vague, intangible suspicion were required, the reporting must concern an incident of great weight and the suspicion must be identified as such. In addition, the reporting must be balanced, the journalist must not fail to report on exculpatory circumstances and the person concerned must, as a rule, be invited to make his own comments before publication. 16. As regards the statements at issue, the Court of Appeal held that there was a great informational interest on the part of the public in the reporting that the applicant, as a German businessman internationally active in the media sector, was suspected by the secret service of being involved in gold smuggling, embezzlement and organised crime. This assessment was not changed by the fact that the applicant had been mentioned by name in the article, or by the fact that when the article was published in 2001, the criminal offences mentioned therein had occurred more than sixteen years previously. Regarding the latter the court pointed out that the criminal offences had become relevant again, due to new suspicions regarding the involvement of a former mayoral candidate. For the understanding of these suspicions it had been necessary to elaborate on the companies and individuals, including the applicant, involved in the alleged corruption. Similarly, describing the suspected criminal backgrounds of some of the persons involved had been necessary for the readers’ comprehension of the allegation. The court also took into account that the article remained accessible in an online archive of the daily newspaper. It held that there was a recognised public interest not only in information on current events but also in being able to research events from recent history. 17. The court further considered that the reporting was free from polemic statements and insinuations, and made it sufficiently clear that only insights from FBI reports and the law-enforcement authorities were being reported. This was expressly pointed out in the challenged article with the words, "according to reports by the F.B.I. and European law enforcement agencies". The internal FBI report was confirmed by reports of several other law-enforcement agencies, and the applicant himself, while denying any criminal activities, confirmed certain facts mentioned in those reports during the proceedings. Furthermore, the author of the article had notified the applicant via email that the article would be published. In that context the court also considered that although the applicant had been aware of the defendant’s reporting even before the article had been published, he had waited for more than one year before applying for an injunction against the defendant. Therefore, the applicant had not perceived the interference with his personality right as intolerable. 18. In sum, the court concluded that the defendant had complied with the required journalistic duty of care and that the reporting had relied on sources and background information, which the journalist could reasonably consider reliable. Therefore, the informational interest of the public outweighed the concerns of protecting the applicant’s personality right, even taking into account that such reporting might seriously damage his private and professional reputation. Regarding the alleged entry ban, the court concluded that there had been no reliable sources and that the applicant had shown that he had recently travelled to the United States. 19. On 2 October 2012, the Federal Court of Justice rejected a complaint lodged by the applicant against the Court of Appeal’s refusal to grant leave to appeal on points of law. 20. On 26 April 2013 the Federal Constitutional Court declined to consider a constitutional complaint (no. 1 BvR 2387/12) lodged by the applicant, without providing reasons.