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Case:
BGH VI ZR 38/03
Date:
09 December 2003
Translated by:
Raymond Youngs
Copyright:
Professor B. S. Markesinis

Facts:

The defendant reported, on the front and fourth pages of the 22nd September 2000 issue of the newspaper Bild which it publishes, an interview with the well known pop artist Udo Jürgens in the magazine "Playboy". In this interview he had been asked about his relationship with women, and in particular with the claimant. The article carried a banner headline: "Udo Jürgens in Bed with Caroline?" Under this, there was a heading in smaller letters: "In a Playboy interview he replies with distinct ambiguity".

In response to a warning by the claimant, the defendant gave an injunction declaration supported by a penalty on the 6th October 2002, but refused to give the correction demanded in a letter of the 6th March 2001.

The claimant demanded reimbursement of the costs of the pre-action warning, non-material damages of 50,000 DM and publication of a correction. After an evidential hearing in which Udo Jürgens was examined on the question of whether the claimant had had a sexual relationship with him, the Landgericht ordered the defendant to reimburse the costs of the warning, to pay non-material damages of 10,000 euros and to publish the correction demanded. The appeal court on the defendant's appeal made minor alteration to the wording of the correction demanded, and on the claimant's cross-appeal ordered the defendant to pay non-material damages of 20,000 euros.

By an appeal in law which has been admitted by the Oberlandesgericht in relation to the correction claim, the defendant is pursuing its objective of dismissal of the claim.

Grounds:

I.

The appeal court has in substance explained as the reasoning for its decision that the claimant was entitled to make the correction claim which she finally made against the defendant for the publication on the front page of Bild on the 22nd September 2000 (§§ 823, 1004 of the BGB in combination with Arts 1 and 2 of the Basic Law). The publication was not a true question, which left to the readers the choice between several possible answers. Instead, the impression was given to many readers that Udo Jürgens had been intimate with the claimant. It was sufficient that a not insignificant number of unprejudiced average readers of Bild understood the passage on the front page in this sense. This impression, which according to the result of the hearing of evidence was incorrect, related to the intimate sphere and caused a lasting impairment of the claimant's general right of personality. A correction was therefore required.

It was not necessary for a compelling impression to be created by the publication. The demand for a correction infringed press freedom protected by Art 5 of the Basic Law less seriously than a demand for an injunction would. A claim to remove the consequences could then be granted if an assertion affecting the general right of personality was not unlawful.

The correction was necessary to remove the continuing impairment of the claimant's general right of personality. The time which had elapsed since the publication was not enough to remove the injurious effect of the lurid presentation of the passage complained of, which was illustrated with photographs of the claimant and Udo Jürgens.

II.

The disputed judgment withstands the arguments of the appeal in law.

The appeal in law is permissible in accordance with § 543 para 1 no 1 of the Civil Procedure Code after admission by the appeal court, but effectively limited to the claim for a correction as a factually and legally independent part of the total content of the dispute as to which it would have been possible to make a separate decision (reference omitted).

The appeal in law is also permissible in other respects. It is, however, not well founded. The appeal court granted the claimant the desired correction under §§ 823 para 1 and 1004 para 1 of the BGB without any error of law.

1. The appeal in law is unsuccessful in so far as it claims that the statement was incapable of correction because it is a "pure" question, ie one which leaves to the readers the choice between several possible answers, since as it does not indicate whether intimacies took place between Udo Jürgens and the claimant.

It is true that a correction cannot be demanded in respect of a question. In every case a statement is necessary with sufficient factual content to be capable of correction. The appeal court has not, however, understood the statement as a question, but as "a communication of a factual impression", which (in contrast to the Landgericht) it admittedly does not consider to be compelling. Whether it has correctly determined any message contained in the interrogative sentence complained of is subject to examination in the appeal in law (reference omitted).

a) The appeal court interprets the interrogative sentence by making a linguistic connection with the following sub-headline "In a Playboy interview he replies with distinct ambiguity". The appeal in law argues that the sub-headline ought not to be considered when determining the message content. It thereby puts itself in conflict with the case law of the Federal Constitutional Court, according to which the total context of the statement must always be considered, and this also applies to questions (references omitted).

According to the principles developed by the Federal Constitutional Court (reference omitted) when assessing statements which are clothed as questions, questions differ from value judgements and assertions of facts in that they do not make a statement: they seek to induce a statement. They are directed at an answer. This answer can be a value judgment or a communication of facts. On the other hand, there are questions which cannot be classified under either concept and which have a semantic meaning of their own. It has to be borne in mind that not every sentence which is clothed in the form of a question is to be considered as a question. In this respect a distinction must be made between questions and interrogative sentences. If an interrogative sentence is not intended to be answered by a third party or not open to different answers, then there is actually no question, regardless of the common description of "rhetorical question". Interrogative sentences, or parts of them, which are not made to induce an answer with a content which is not yet established are in fact statements amounting either to value judgements or assertions of fact. They must legally be treated as such. The difference between pure and rhetorical questions can create difficulties, as the linguistic form alone does not allow any reliable conclusions. Classification must therefore take place, if applicable, with the assistance of the context and the circumstances of the statement. If an interrogative statement is capable of more than one interpretation, both interpretations must be considered, and the court must give reasons for its choice.

b) The appeal court has correctly decided against interpreting the statement as a pure question. Only a superficial approach can result in the first part of the statement complained of, clothed as an interrogative sentence, being understood as a question with alternatives, which could be answered with "yes", "no" or "perhaps". The appeal court has correctly also considered the second half of the statement in order to determine its content. According to this, Udo Jürgens had spoken with "distinct ambiguity" on the subject. This formulation answers in the affirmative the question apparently raised with alternatives in the first part of the statement. It suggests to the reader that an affirmative answer is most likely. Understood in this way, the statement complained of must be regarded not as a question but as an assertion of facts.

The appeal in law refers, but unsuccessfully, to the principle that, in the case of several possible meanings of a statement which are not mutually exclusive, the one which is more favourable to the defendant and which is less injurious to the person affected should be used as a basis for the legal assessment (references omitted). The principle cannot, however, apply here. This is because it is not a question of whether the statement is capable of several interpretations, but of whether the appeal court was correct in not assessing it as a ("pure") question.

2. In describing the statement as the "communication of a factual impression", the appeal court does not address any other category than the concepts of "value judgement" and "assertion of facts". The appeal court has instead correctly assessed the statement complained of as a statement with a factual substratum (reference omitted) ie an intimate relationship of the claimant with Udo Jürgens in the past. It has thereby treated it, in accordance with its nature, as an assertion of facts. The fact that the Landgericht has taken evidence about the truth of this factual assertion - with negative results - also fits with this assessment. The appeal in law does not claim that the fact involved was true.

In this state of affairs it cannot matter whether the impression conveyed by the statement is "compelling". The decisive issue is that the publication complained of conveys to the reader an incorrect impression of relationships in the claimant's private sphere. She is therefore entitled under §§ 823 para 1 and 1004 para 1 of the BGB to the correction claimed (references omitted).

3. The claimant's claim to a correction is not destroyed by "deactualisation" arising from the passage of time.

The appeal in law cannot successfully set the fact that more than three years have elapsed since the publication against the substantial injury to the claimant's general right of personality. This period does not suffice under the circumstances present here to remove the injury to honour from the defendant’s untrue assertions. They were made in a newspaper with a high circulation and intruded into the claimant's intimate sphere. The content of the communication lacked any current reference point. It related to a period when Udo Jürgens was 41years old. The claimant was at that time "18 or 19 years old". The publication on the front page of Bild represents a substantial injury to the claimant. The invasion of the intimate sphere by the publication was, in the light of the Bild’s circulation as known to the court (reference omitted), so intensive that even the period of seven months which elapsed from the publication to the making of the claim is not enough to remove from the untrue assertions the damaging effect on the claimant. Removal of this violation of her right is still required.

The correction in the adjudged form would not - contrary to the view taken by the appeal in law - produce the impression in unbiased readers of Bild that "perhaps there was something in the affair".
The appeal in law expresses the concern that the correction would remind readers again about the statement violating the claimant's general right of personality. This is a risk which the defendant must leave to the claimant who wants the correction. It does not in any case exclude the claim to a correction.

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