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Case:
BGHZ 3, 270 I. Civil Senate (I ZR 8/51) = NJW 1952, 660 = JZ 1952, 227
Date:
26 October 1951
Note:
and partially approving and partially critical note by H. Kleine
Translated by:
F.H. Lawson and B.S. Markesinis
Copyright:
Professor B.S. Markesinis

The ladies’ journal ‘C’ is published by the plaintiff. The defendant is the publisher of the weekly Church and Life, the church bulletin for the bishopric of M. Each issue of this journal includes for each deanery a ‘supplement’ composed and printed locally, in which notices, mainly of religious services and other deanery news, are published. In the deanery supplement for O, an article was published entitled ‘The Select Readings of the P. Circle for Every Family’, in which the moral conduct of the illustrated journals appearing in the post-war period was criticized. The article contains, inter alia, expressions to the effect that the publishers exploited the apparent collapse of the concepts of decency and dignity, had replaced honest commercial competition and market calculation by unscrupulous reliance on the primitive instincts of a wearied people; the plaintiff’s ladies’ journal ‘C’ was described very critically; Christian readers of the ladies’ journal ‘C’ in receiving the journal, neglected their duty towards the honour of their wives and daughters, and the upbringing of their adolescent children. In addition it states that a Christian could obtain from other journals a picture of the world and a new point of view towards such matters. For the last few months there appeared regularly each week at the wish of the bishop the ‘Select Readings of the Circle’ which, in richness, up-to-dateness, and make-up is not inferior to the products of other enterprises and are more value for money. It then names a number of journals which form a ‘medley’ which offered every responsible thinking Christian joy and relaxation by providing moments of reflection in the evenings and on holidays. Information about these Select Readings was available at each parish office or the headquarters of the P. Circle.

The ‘Select Readings of the P. Circle’ mentioned in that article is distributed by the ‘Catholic L. e.V.’ in M, which receives the net profit if any. The ‘P. Circle’ and the ‘Catholic L. e.V.’ are economically independent of the defendant.

The above-mentioned article in the deanery’s supplement appeared anonymously. The plaintiff company holds the defendant company answerable for the statements made against itself and its journal contained in that article, charging the defendant with breaches of certain statutory regulations [references]. The defendant first knew of the article objected to after its appearance, but has declared that it entirely agrees with the article and declines to withdraw the criticism of the plaintiff’s journal printed in it.

The plaintiff claimed that the defendant be ordered to refrain from making and to recall the above-mentioned statements. The plaintiff also asked for a declaration that the defendant is liable to pay compensation and the right to publish the judgment.

Both instances below dismissed the action. The application for review led to the decisions being set aside and the case referred back to the lower court for these

Reasons

The applicant for review cannot successfully object that the Court of Appeal looked upon the statements in dispute as comments and not allegations of fact in the sense of § 14 UWG (Unlauterer Wettbewerbsgesetz), § 824 BGB, §§ 186, 187 StGB. The Court of Appeal did not fail to perceive that an allegation of a fact can be hidden under the form of a comment. Even if the protection of a reputation intended by the legislator requires the fluctuating boundary between allegations of fact and value-judgments or mere statements of opinion to be drawn as broadly as possible in favour of allegations of fact, since every comment rests ultimately on external or internal facts, yet it remains a prerequisite that the disapproving judgment takes as its starting-point tangible occurrences susceptible of proof, since otherwise a proof of truth or falsehood, as it is envisaged by § 186 StGB, § 824 BGB, and § 14 UWG, is logically excluded. The applicant starts from the position that no evidence whatever can be adduced for the truth of the contested statements. Comments, however, which do not admit of proof of truth, which are not related to definite probable acts, are not allegations of fact in the sense of the above-mentioned statutory provisions. It must, indeed, be conceded to the applicant that the complaint of exploitation can contain an allegation of fact. However, in the present case that complaint does not rest on specifically detailed acts but alleges that the apparent collapse of ‘decency and dignity’ is being exploited. If one connects this statement with the further complaints, according to which the personalities standing behind the plaintiff are accused of ‘unscrupulous exploitation of the instincts of a wearied people’, the view taken by the Court of Appeal must be approved that the expressions in question do not so much conceal a complaint of provable business dishonesty, but rather amount to a moral judgment on the general behaviour and business activity of the persons in question, and, therefore are value-judgments unaccompanied by examinable facts.

The same applies to the further critical statements of the plaintiff’s journal and of the statement that ‘Christian readers of the journal in receiving the journal neglected their duty towards the honour of their wives and daughters and the upbringing of their adolescent children’. In agreement with the principles established by the Reichsgericht’s decisions in civil and criminal cases on distinguishing between value-judgments and allegations of fact, the Court of Appeal has quite accurately regarded those utterances as general expressions of disapproval, which have not for their object examinable acts of those involved [references follow].

III. In examining, however, the question of who may be sued, the Court of Appeal allows itself to be influenced by erroneous considerations of law which affect its further legal assessment of the facts. Neither the defendant’s responsibility under press legislation nor its declaration of willingness to hold itself responsible for the article published without its knowledge justifies the Court of Appeal in assuming that the defendant must be treated as though it composed or authorized the article. The Court of Appeal failed to realize that the provisions of the Press law bear only on criminal law, not on civil law. The civil liability of the publishing house for infringements committed by its publications is defined by the general principles (RGZ 50, 109, 110; RG JW 1917, 713). In this purpose it is to be assumed that the publisher of periodicals is normally not in a position, and is also not in general bound, to scan the publication before it appears. As a rule responsibility for the contents is borne by the editor, whose name must appear on each number under the strict provisions of § 7 of the Press Act. The publisher, however, is liable for a fault of the editor, if the latter is subject to his instructions, and it is therefore a question of employer’s liability. He may then try to prove that he is not to be blamed under § 831 BGB (RGZ 148, 154, 161). The publisher who did not know before publication of an injurious utterance made public by a periodical published by him is, as a rule, liable in damages only in so far as general provisions make him responsible for the faults of third persons. The publisher is, however, independently of any question of fault, the right defendant in a claim for an injunction under § 1004 BGB, against a disturber if a leaflet which is inserted in his publication unlawfully affects a third person and that injurious result is at least indirectly traceable to his will, since he has the possibility of exercising influence on the content of the sale of the inserted leaflet [references follow].

. . . The defendant’s declaration that makes the contested utterances her own, combined indeed with an approval of all the circumstances under which the article complained of appeared, is not without importance for the decision of the claim for an injunction. The defendant has refused to tone down the criticism of the plaintiff’s journal in the article in the deanery supplement and has expressed the view that the criticism was, even in its present rigour, required by its opposition to the plaintiff’s journal, and was covered by the protection of justified interests. It has also announced that it considered itself justified in publishing similar or equivalent statements in the future. That, however, makes it a ‘disturber’ in the sense of § 1004 BGB, since it has made these declarations in knowledge of the attacks, which have already occurred and must here be assumed to have been unlawful—and does not deny its ability to prevent the insertion of deanery supplements with a content not approved by it. From that admission of the defendant there follows a risk of further impairment and thereby its liability to be made defendant in proceedings for an injunction, without any need so far to examine its responsibility for the existing publications.

IV. The Court of Appeal denied any infringement of provisions protecting competition on the ground that those provisions presuppose acting with a competitive purpose, whereas the defendant in its conduct complained of acted not with a competitive intention but exclusively on religious ground without a gainful purpose.

The contention of the applicant for review, that the Court of Appeal misunderstood the concept of acting with a competitive purpose, is unfounded. Relying on a decision of the Reichsgericht [reference], the applicant puts forward the view that where business men were engaged in a competitive struggle any act which is objectively apt to further one’s own or another’s competition suffices to fulfil the factual characteristics of acting for competitive purposes, without any need to examine the subjective disposition of the actor. The applicant fails here to recognize that the Reichsgericht, in the decision referred to, treated the knowledge that another’s competition was being furthered only as an indication that the then defendant was pursuing, along with other aims, also competitive purposes. That additional presupposition, however, was required because according to a constant practice concept ‘with competitive purposes’ requires a subjective intention directed towards competition [references].

The Senate cannot accept the dissenting view put forward by Reimer [reference] in view of the wording of the Act. Although an intention directed to furthering competition by oneself or another does not need to be the only or an essential aim of the act, yet that competitive purpose must not be neglected as completely irrelevant compared with the principal motives [references].
It may, indeed, generally be correct that experience points to a competitive intention when competitors make statements in commercial intercourse which are objectively apt to further one’s own or another’s competition. It is not, however, a mistake of law when the Court of Appeal does not consider this evidentiary rule, which is not imperative and is merely found empirically to correspond as a rule to the truth, to be decisive in the particular case which concerns information in a church bulletin.

Whether the factual characteristics of acting ‘for a competitive purpose’ are fulfilled is a matter for the unfettered appreciation of the judge of fact. The Court of Appeal was not wrong in inferring from the circumstance that no reference to the church bulletin published by the defendant was contained in the article and that no financial connection exists between the defendant and the ‘P. Circle’ or the ‘Catholic L. e.V.’ selling its select readings that there was no intrinsic probability of a competitive intention to be proved by the defendant. When accordingly, the Court of Appeal—starting from the pastoral duties of the bishop, on whose instructions the defendant acted as the publisher—came to the conclusion that the controversial article would, according to the honest conviction of the defendant, serve only its fight against what it considered the extraordinarily corrupting and dangerous world of journals and magazines, those considerations did not offend against the legal principles laid down by the Reichsgericht for the subjective requirement of acting for competitive purposes [reference].

On the other hand the applicants’ complaint for review is well founded that the Court of Appeal ought not to have neglected to take up the offer to provide evidence of the testimony of named witnesses that the controversial article was prepared on the defendant’s instructions by the publicity manager of the ‘P. Circle’ for competitive purposes and was provided for the deanery supplement [details follow].

V. The considerations also by which the Court of Appeal rejects §§ 823 I and II, 826, in combination with § 1004 BGB, as grounds of claim do not stand up to legal review.

. . . First it must be objected that the Court of Appeal regards as decisive whether the defendant acted with a defamatory intent—a question which can be relevant only when the protection of reputation is in issue—without examining whether there was a direct attack on the plaintiff’s business through an unlawful impairment of its business activity, which falls within § 823 I BGB. Even utterances which do not fulfil the requirements of defamation but describe the position of a business undertaking, its products, or other performance and thereby disturb the free development of the undertaking, can constitute a direct attack on the right protected by § 823 I BGB to carry on an established business. Since § 14 UWG and § 824 BGB only allow claims arising from allegations of fact, legal protection against injurious comments which do not bear the taint of immorality and therefore do not fall within the general clause of § 1 UWG, § 826 BGB would be incomplete if they could not be treated as injurious acts violating the right to conduct a business.

The Reichsgericht, it must be admitted, affirmed the existence of that right in its earlier decisions only when the attack was aimed directly against the existence of the business. A diminution of the economic profit or of the prospects of gain was not regarded as sufficient [references]. Yet, in later decisions the Reichsgericht went further in the field of the law of trade marks and competition and considered, for the purpose of an injunction, that any unlawful impairment of business activity was sufficient, if it constituted a direct interference with the sphere of the business [references].

But there remains no substantial reason to restrict the concept of the protection of business activity to the field of competition and industrial property. Just as property is protected by § 823 I BGB against direct attack, in all its individual emanations—for instance the impairment of the unrestricted power of disposal—so also, according to this protective provision, the right to an established and active business must be protected against direct disturbances not only in its substance but also in its individual aspects, including the whole field of business activity.

The contested article which, supported by the highest ecclesiastical authority, strongly warns everyone, but especially the Christian reader, against the plaintiff’s journal, and couples that warning with a derogatory reference to the persons behind the plaintiff. It displays a direct attack on the plaintiff’s protected right to an undisturbed development of its business activity. This interference with the protected legal sphere of the plaintiff, which infringes the protection of business activity afforded by the law, would only not be illegal if the defendant had a special justification for the interference [references].

For this purpose, contrary to the view of the Court of Appeal, it is not of vital importance whether the facts point to punishable defamation, for it is not the protection of a reputation but the plaintiff’s right to unimpeded business activity that is in question. If aspects of unfair competition are absent, such as attach as a rule to a critical comparison of industrial products for competitive purposes, an objective criticism of the plaintiff’s journal would not be contrary to law even if it had adverse consequences for the plaintiff since Art. 5 of the Constitution allows anyone to express such criticism in the exercise of his right to the free expression of his opinion. But comments disturbing business, which depart from the field of objective criticism, are only not illegal if in accordance with their content, form, or accompanying circumstances they are objectively necessary to protect legally approved interests.

§ 193 StGB, it is true, provides a justification only where defamation is concerned. Yet that rule governs the special case of conflicts of interests which can arise in the protection of reputation, in accordance with an overriding legal doctrine which assumes importance wherever in a conflict between different interests the injury to one legal interest must be accepted. All comments affecting a business which factually fall within § 823 I BGB can be justified as protecting justified interests if the protection keeps within the limits fixed by law. These limits must be drawn according to the principle of balancing interests and duties that govern all conflicts of interests [references].

The conflict between the interest pursued and the legally protected interest that is to be sacrificed to it must be balanced by observing the principles that the Reichsgericht has developed for overriding necessity. The conflict of values can only be resolved in this way, whereby he who can effectively protect a justified interest only by interfering with another’s legally protected interest must choose the least violation of law, the most considerate means. Thus injurious utterances are covered by the protection of justified interests only if according to their content, form, and accompanying circumstances they constitute the indicated and necessary means of attaining the legally approved purpose [references].

A mistake as to the need for the severity and extent of the attack on a protected legal good, if innocent, only excludes fault and thereby liability for damages, but not the substantial unlawfulness of the attack [references follow].

It is to be noted that whoever proposes to encroach on another’s legal sphere for the sake of his own interests, or of those especially dear to him, must carefully examine whether the injury which he proposes to inflict is necessary as to severity and extent in order to further those interests appropriately. If he neglects that examination, which must take into account the scale of protection of the legal interest under attack, an excessive amount of injury, which is always illegal, cannot be excused even if there is a mistake as to its necessity.

These legal principles were misunderstood by the Court of Appeal. It assumed, indeed quite rightly, that the defendant, as publisher of a bulletin issued by a high ecclesiastical dignitary, held no exceptional legal position, but that its conduct was to be judged according to all applicable legal provisions. The Court of Appeal is also correct in holding that the interests involved in the struggle of the Church against a degenerate Press of which it disapproved affected so closely the defendant as publisher of the Church bulletin that it must be accorded an especial right to protect those interests (RGSt 63, 229 [231]; RGZ 115, 77 [80]). But the Court of Appeal misunderstands the limits to the pursuit of justifiable interests when it considers that the assumed excess in degree of injury is justified on the ground that the defendant acted exclusively for an ethically objectionable purpose and not with a defamatory intent. Even moral motives afford no right to sacrifice the protected interests of another beyond the necessary limits. The view of the law taken by the Court of Appeal, which makes the unlawfulness of the utterances in issue depend on the personal convictions and intentions of the injuring party, would render the right to reputation and the right to an established business defenceless against the grossest attack, if the perpetrator acted not for objectionable reasons but only with the aim of enforcing more effectually the interest pursued by him by excessive attacks which are objectively unnecessary. The Court of Appeal overlooks the fact that the decisions of the Reichsgericht which it cites in support of its opinion to the contrary (RG JW 1914, 368, 371; RGSt 40, 317), deal only with criminal liability—which always presupposes fault—but not with the objective unlawfulness of unduly injurious utterances.

It is also a matter for criticism that the Court of Appeal, contrary to its opinion that the defendant must be treated as though it had prepared or occasioned the article, chooses to justify the conduct of the defendant within the scope of § 193 StGB by the particular state of conflict in which it found it after the publication of the article. If the defendant had no right to express its condemnation in its existing form at the time the article appeared, that right, which the defendant claims also for future publications, cannot be deduced from its position after the publication. The defendant could, when the plaintiff approached it with a request for the withdrawal of the article, reflect at leisure whether the utterances objected to exceeded the measure permitted for the furtherance of its interests; as a champion of ecclesiastical interests its special concern should have been to examine carefully whether the general character of the plaintiff’s journal justified such a severe denigration combined with a general attack on the reputations of its publisher and distributors. If the attack was objectively excessive, the defendant, which approved that excess, is in no way excused, as the Court of Appeal wrongly assumes, by the fact that, even if the form of expression were toned down, an objectively necessary contravention of law remains; for only an objectively necessary attack on the interests of others not the unnecessary, so-called excess is justified by the protection of justified interests.

Whether an injurious attack goes beyond the degree objectively permitted for the protection of interests is a question of fact. The Court of Appeal made no finding on it. Starting from its mistaken opinion that for the utterances complained of also to be objectively unlawful only the subjective conviction of the defendant was decisive that they were necessary, the Court of Appeal considered that the question was irrelevant whether an objectively unnecessary excessive attack existed. In this connection the Court of Appeal is of the opinion that it could not be its task ‘to take up a position in the fight between two contesting philosophies of life represented here in the publications in question (the plaintiff’s journal and the article for which the defendants were responsible) to examine the correctness of the value-judgments contained in them’. That is correct only in so far as the Court of Appeal is not bound to press judgment on the worth or worthlessness of the philosophical aims pursued by the parties, in so far as they are in opposition. If, however, it must be conceded to the plaintiff’s journal, as is to be inferred from the reasoning in the judgment under appeal, that it may discuss questions relating to the philosophy of life, the Court of Appeal cannot refuse to decide whether the attack directed by the defendant against this journal, objectively considered, in respect of its content, form, and accompanying circumstances, falls within the limits of legally permitted promotion of interests. In this connection it is to be noted that the permitted degree of attack is to be determined differently when it is directed against a journal with a generally licentious content from when it concerns a journal whose pursuit of serious endeavours is—in whole or in part—not to be denied. For that determination the decisive factor is not single contributions to the journal but its general character. When dealing afresh with the dispute, the Court of Appeal must . . . examine . . . whether the plaintiff’s journal (if assimilated to magazines generally regarded as of a scandalous type) has exploited in an unscrupulous and ethically reprehensible way the moral decline of the population for selfish and mercenary ends. In this connection the Court of Appeal will also have to consider that the wide-ranging moral condemnation of the persons behind the plaintiff and its publishing enterprise has been published in the defendant’s periodical. Press attacks, however, have such incalculable and profound effects that the limits within which other legal interest may be violated by the promotion of interests of one’s own must be drawn especially narrowly (RGSt 63, 92 [94]).

On this view of the law it can be left undecided whether the plaintiff as a company can be regarded as capable of being defamed. It is true that the doubts expressed by the Landgericht in that regard cannot be regarded as removed by the formal assignment, since the claim to forbear from uttering defamatory statements, being of a highly personal nature, cannot be assigned [reference]. Yet, if the unlawfulness of the statements in dispute is established, a basis is provided for an action under § 823 I BGB, so that no discussion is needed as to whether the defendant also infringed a statute serving to protect the plaintiff in the meaning of § 823 II BGB, since no wider claims would arise from that protective provision.

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