BGH: Press organ may publish unsolicited book manuscripts

The Federal Court of Justice ruled that the publication of book articles by a member of the Bundestag on an Internet news portal was permissible.

Facts of the case:

The plaintiff was a member of the Bundestag from 1994 to 2016. He is the author of a manuscript in which he opposed the radical demand for a complete abolition of the sexual criminal law, but advocated a partial decriminalization of non-violent sexual acts of adults with children. The text was published in 1988 as a contribution to a book. In May 1988, the plaintiff complained to the publisher of the book that the latter had made changes to the text and headings without his consent, and asked him to make this clear when the book was delivered. In the following years, the plaintiff was confronted critically with the statements of the book contribution on several occasions. He then repeatedly stated that his manuscript had been distorted in meaning by the editor because he had edited away the central message – the rejection of the widespread demand at the time for the abolition of sexual criminal law. Since 1993 at the latest, the plaintiff has completely distanced himself from the content of his essay.

In 2013, the plaintiff’s original manuscript was found in an archive and made available to him a few days before the federal election for which he was running as a member of parliament. The plaintiff submitted the manuscript to several newspaper editors as evidence that it had been altered at the time for the book article. He did not agree to the publication of the texts by the editors. Instead, he posted the manuscript and the book article on his website, stating that he dissociated himself from the article. He agreed to a linking of his website by the press.

Before the federal election, the defendant published a press report on its Internet portal in which the author expressed the view that the plaintiff had hoodwinked the public for years. The original documents proved that the manuscript was almost identical to the book contribution and that the central statement of the plaintiff had in no way been distorted in meaning. Internet users could download the manuscript and the book article via an electronic reference (link). The plaintiff’s website was not linked.

The plaintiff considers the publication of the texts to be an infringement of his copyright. He filed a claim against the defendant for injunctive relief and damages.

Process to date:

The district court upheld the action. The defendant’s appeal was unsuccessful. The Kammergericht assumed that the publication of the plaintiff’s copyrighted texts without his consent was not justified, even taking into account the defendant’s freedom of opinion and freedom of the press, either from the point of view of reporting on daily events (Section 50 UrhG) or by the statutory right to quote (Section 51 UrhG). In its appeal, the defendant continues to pursue its motion to dismiss the action.

By order of July 27, 2017, the German Federal Court of Justice suspended the proceedings and referred questions to the Court of Justice of the European Union on the interpretation of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (I ZR 228/15, GRUR 2017, 1027 – Reformistischer Aufbruch I; related press release No. 124/2017 of July 27, 2017). The Court of Justice of the European Union answered these questions in its judgment of July 29, 2019 (C-516/17, GRUR 2019, 940 – Spiegel Online). The Federal Court of Justice then continued the appeal proceedings.

The decision of the Federal Supreme Court:

The Federal Court of Justice reversed the judgment on appeal and dismissed the action. The defendant has not unlawfully infringed the plaintiff’s copyright by making the manuscript and the book contribution available on its Internet portal. On the contrary, the protective barrier of reporting on daily events (Section 50 UrhG) applies in their favor.

Reporting on a daily event within the meaning of this provision exists. In its deviating assumption, the Court of Appeal did not sufficiently take into account the fact that the article in question focused on the plaintiff’s current confrontation with his manuscript, which had been recovered during research, and his reaction to it. These are events that were current at the time the article was posted on the defendant’s Internet portal and were of current public interest with regard to the credibility of the plaintiff running again as a member of the Bundestag. The fact that the article went beyond this event, which was in the foreground, to provide information on the background to the plaintiff’s position, which had already lasted for years, does not prevent the assumption of reporting on daily events.

Moreover, the reporting did not exceed the scope required by the purpose. According to the provision of Art. 5 para. 3 lit. c case 2 of Directive 2001/29/EC, the implementation of which is served by Section 50 UrhG and which must be observed in the required interpretation in conformity with Union law, the use of the work in question may only take place if the reporting of daily events is proportionate, i.e. with regard to the purpose of the protective barrier, respect for the fundamental freedoms of the right to freedom of expression and freedom of the press, meets the requirements of suitability, necessity and appropriateness (proportionality in the narrower sense).

According to the case law of the Federal Constitutional Court, the question of whether the fundamental rights of the Basic Law or the fundamental rights of the Charter of Fundamental Rights of the European Union are decisive in the interpretation and application of domestic law determined by Union law depends in principle on whether this law is completely unified under Union law (then, as a rule, not the fundamental rights of the Basic Law, but only the fundamental rights of the Union are decisive) or whether this law is not completely determined under Union law (then the standard of the fundamental rights of the Basic Law applies primarily). In the latter case, the presumption that the level of protection of the Charter of Fundamental Rights of the European Union is co-guaranteed by the application of the fundamental rights of the Basic Law applies (cf. BVerfG, Order of November 6, 2019 – 1 BvR 16/13, GRUR 2020, 74 marginal no. 71 – Recht auf Vergessen I). Since, according to the case law of the Court of Justice of the European Union, Art. 5 para. 3 lit. c case 2 of Directive 2001/29/EC is to be interpreted as not constituting a measure for the complete harmonization of the scope of the exceptions or limitations listed therein, the proportionality test in the application of Section 50 UrhG must thereafter be carried out on the basis of the standard of the fundamental rights of the German Basic Law.

In the case in dispute, according to these standards, in the interpretation and application of the exploitation rights and the provisions on limitations on the part of the plaintiff, the rights to which he is entitled as an author and which are protected by Article 14 (1) of the German Copyright Act (Art. 14 Abs. 1 of the German Basic Law (GG), the exclusive right to make his works available to the public must be taken into account. In addition, the interest protected by his moral right to permit public access to his work only with the simultaneous reference to his changed political convictions is affected. For the defendant, on the other hand, the fundamental rights of freedom of opinion and freedom of the press pursuant to Art. 5 Para. 1 sentence 1 and 2 GG. The weighing of these fundamental rights affected in the dispute leads to a priority of freedom of opinion and freedom of the press. The Court of Appeal rightly assumed that the defendant had the task, within the framework of its constitutionally guaranteed freedom of opinion and freedom of the press, of critically dealing with the plaintiff’s public allegations and, by making the manuscript and the book contribution available, of enabling the public to form its own picture of the alleged falsification of the content of the essay and thus of the plaintiff’s alleged insincerity. In doing so, the Court of Appeal correctly assumed that the public’s interest in information, as perceived by the defendant, was of great importance. With regard to the interests of the plaintiff, it must be taken into account that his right to a fair trial, guaranteed by Art. 14 para. The exclusive right to make the manuscript and the book contribution available to the public, which is protected by Article 1 of the German Basic Law, is only insignificantly affected because, according to the findings of the Court of Appeal, further commercial exploitation of the essay is not to be expected. His interest in determining whether and how his work is published, which is subject to the author’s personal right, does not acquire any decisive weight in the context of the weighing of fundamental rights. In the report challenged in the action, the defendant did not conceal from its readers the plaintiff’s opinion, which had changed over the years, on the punishability of sexual abuse of minors, but also made it the subject of the report. It has thus not made the text in question available to the public without a distancing reference clarifying the plaintiff’s altered intellectual-personal relationship to his work and has taken sufficient account of his interest under copyright personality law.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.