Case Summary and Outcome

In September 2014, the Supreme Court of Appeal in Germany overruled a lower court’s decision and held that publishers of the newspaper ‘Bild-Zeitung’ could publish private e-mails between the Complainant, a former federal minister, and his illegitimate daughter’s mother in which he refused her request to pay alimony. The Court reasoned that the Complainant was a public figure and that the publication of emails disclosing that he had shirked financial responsibility for his illegitimate daughter and shifted the onus on to the State was a matter of public interest. It also held that the newspaper’s freedom of expression outweighed any interest the Complainant might have to his general right of personality, including the right to be able to decide what happens to any of his personal information.

Facts

The Complainant, Mr.S, held various public offices between 1994 and 2010, the last one being as Minister of the Interior in one of Germany’s federal states. In the mid-90s he had an affair with one of his staff resulting in his illegitimate daughter’s birth in 1997. He refused to pay alimony and the child received state- financed benefits until 2003 under the German Maintenance Advance Act which allows payments to single parents in cases where children receive no maintenance or irregular maintenance from the other parent. However, because the mother had intentionally withheld the fact that the Complainant was her daughter’s father she was, in fact, not entitled to those benefits.

In 2009, the Complainant’s private laptop with all the e-mails between him and his illegitimate daughter’s mother were stolen. The Defendants, publishers of the German tabloid newspapers ‘B.Z.’ and ‘Bild-Zeitung’ acquired the information, although they were not involved in the illegal obtaining of it.

After an interview with three of Bild-Zeitung editors on 31 August 2010, in which they alleged that the Claimant was involved in social-benefit fraud and put him on notice that they would go public with the information, the Claimant obtained a restraining order preventing publication. Between the 20th and 25th September several reports in both of the Defendants’ papers revealed the Claimant’s private affairs and the Claimant resigned from his post on 23rd September 2010.

The Claimant alleged that the use of his private e-mails for news coverage was an infringement of his general right of personality including the right to be able to decide what happened to any of his personal information under Articles 1 and 2 of the German Grundgesetz (Constitution) and Articles 8 and 10 of the ECHR, in particular because the e-mails were on his stolen laptop.

The First Instance Court ruled that the Defendants could not publish or otherwise use the Claimant’s e-mails with his illegitimate daughter’s mother.

Decision Overview

The Fourth Senate of the Supreme Court of Appeal delivered a per curiam opinion in which it reversed the previous decision and ruled that, although publishing the e-mail correspondence constituted an interference with the Complainant’s general right to personality including the right to be able to decide what happened to any of his personal information under Articles 1 and 2 of the Constitution, the interference was not unlawful because the Defendants’ right to freedom of expression outweighed the Complainant’s interests, despite the fact that the information was illegally obtained by a third party.

The Court found that the Defendants didn’t obtain the e-mails by a willful breach of the law nor did they participate in the interference of the Complainant’s right to personality. They merely derived advantage therefrom. The information, which the Complainant didn’t deny, was a matter of public interest, in particular because it revealed the reasons for his resignation. Without the use of the e-mails and the information they contained, the news coverage would have been fragmentary and incomprehensible.

The Court said that the Complainant was a politician, a public figure, so that there was an increased interest in his behavior because it raised the issue of transparency and accountability, which are important elements of a democratic society. The e-mails revealed that he had avoided his economic responsibility towards his daughter and shifted it on to the taxpayer by condoning the fact that his former girlfriend gained state-funded benefits for their child without being entitled to them.

Furthermore, the Court allowed the e-mails to be published in quoted fashion because the wording itself documented with particular clarity how the Complainant had shirked his financial responsibility towards his illegitimate child and her mother and shifted it indirectly on to the general public who had to bear the economic consequences.