FIFTH SECTION

DECISION

Applications nos . 66861/11 and 33478/12 Max K. HOFFMANN against Germany

The European Court of Human Rights ( Fifth Section ), sitting on 23 February 2016 as a Committee composed of:

Khanlar Hajiyev , President, Faris Vehabović , Carlo Ranzoni , judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above applications lodged on 26 October 2011 and 24 May 2012 respectively ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Max K. Hoffmann , is a German national who was born in 1944 and lives in Morgenitz / Usedom . He was represented before the Court by Mr J. von Witten , a lawyer practising in Biederitz .

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The circumstances of the case

1. Background to the case

3. Since 1991 t he applicant had been the director of the municipal theatre of Magdeburg. In 2002, after budget cuts, the theatre overspent by EUR 386 , 000 under the applicant ’ s management and the mayor gave him a written warning. The budget predictions for 2003 also showed severe overspending and non-compliance with the agre ed budget cuts. In July 2003 a non-public city council session was scheduled to decide on the applicant ’ s professional future, due to the overspending and his conduct towards employees and the mayor. At that meeting it was decided to terminate the applicant ’ s contract. On 17 July 2013 the applicant was given notice based on his comparison of city employees and the mayor to the Stasi , the intelligence and secret police agency of the German Democratic Republic .

4. Subsequently the two theatres in Magdeburg were merged and the director of the smaller one became the director of both theatres. The press reported extensively on the merger of the theatres and the termination of the applicant ’ s contract. While the final reason for the termination was not publicised by the city administration, the circumstances leading to the city council meeting were reported by the press and partly communicated by the mayor and members of the city administration.

5. In the subsequent court proceedings regarding the applicant ’ s dismissal , he and the city administration agreed on a settlement, which included a payment of EUR 215 , 000 to the applicant. The settlement also included a clause stating that all claims, based on the emplo yment and the termination of employment, were settled with the aforementioned payment.

6. On 6 October 2003 the German regional television channel MDR broadcast a report about the new director and the new path the merged theatres were following . The report was part of a culture and art s programme regarding theatres in the region and phrased in artistic language with references to ongoing theatre performances. The part of the report at issue referred to the performance “ Knee ‑ deep in overdraft ” and reads as follows:

“ (...) Some perform it, others are: k nee-deep in overdraft is the theatre in Magdeburg, because its former director Max K. Hoffmann has an inclination for budget overspending gestures. Whereupon he was let go and made way f or the surprise. (...)

(... Die einen spielen es, die anderen sind es: knietief im Dispo nämlich ist das Theater der Landeshauptstadt, weil dessen ehe maliger Generalintendant Max K. Hoffmann einen Hang zur etatüberschreitenden Geste hat. Woraufhin er entlassen wurde und Platz machte für die Überraschung. ... ) ”

7. At the end of 2003 the r eport was also broadcast on another German television channel ( 3sat ) and the text of the report was accessible on their homepage until the end of 20 03. Until December 2006 the web page with the text was still accessible by internet search engines, al though not directly from the homepage of the television channel .

2. The proceedings at issue

( a) The first set of proceedings

8. In December 2006 the applicant lodged civil proceedings against the MDR for damages regarding the infringement of hi s reputation in the television report from 2003.

9. On 28 September 2007 the Leipzig Regional Court found that parts of the report were factually incorrect and therefore obliged the television channel to compensate material damage suffered by the applicant. It held that the applicant had to prove, however, that the report had caused him specific losses , and that he had not submitted any evidence in this regard so far . The court furthermore rejected the applicant ’ s claim for non-pecuniary damages. The Regional Court found that even though the report was not factually correct, because the applicant had not been dismissed from his position for overspending but for comparing the mayor and city employees to the Stasi, it did not constitute a grave violation of his personal reputation. It further established that the applicant had not availed himself of other remed ies to restore his reputation, such as a request for retraction or rectification . The applicant ’ s appeal, his complaint against the denial of the right to be heard and his constitutional complaint (1 BvR 1810/08, 5 April 2011) were t o no avail.

( b) The second set of proceedings

10. In December 2006 the applicant also lodged civil proceedings against the second television channel (3sat), due to the publication of the text of the report on their homepage.

11. On 1 October 2008 the Hannover Regional Court rejected the applicant ’ s claim for damages. It held that the language of the whole report suggested an artistic, exaggerat ed and satirical approach to the issue , which did not create the expectation o f a precise account of the events, but of a short and artistic overview o f the theatre landscape in Magdeburg. Consequently, the quotes could not be categorised as statement s of fact but as value judgments. Since there was sufficient factual foundation, as the overspending played a certain role in the termination of the contract, the report did not infringe the personal rights of the applicant. The applicant ’ s appeal, his complaints against the denial of leave to appeal on points of law as well as against the denial of the right to be heard and his constitutional complaint (1 BvR 2175/10, 7 November 2011) were t o no avail.

( c) The third set of proceedings

12. In 2007 the applicant lodged proceedings against the city of Magdeburg for damages. He argued that, based on several articles in the press , which quoted and referred to statements of employees of the city and the mayor, the city administration had communicated that he had been dismissed, had implied that the reason for the dismissal was the overspending and had not clarified the real reason for his dismissal .

13. On 14 November 2007 the Magdeburg Regional Court dismissed the applicant ’ s claim, because he was precluded from claim ing further damages, due to the aforementioned clause in the settlement (see paragraph 5) . On 15 July 2008 the Naumburg Court of Appeal confirmed the decision and added that even if he had not been precluded from claiming , he would not have had a claim for damages, as the facts were correct. The applicant ’ s complaint against the denial of the right to be heard and his constitutional complaint (1 BvR 2693/08, 4 April 2011) were t o no avail.

B. Relevant domestic law

14. Article 823 § 1 of the Civil Code ( Bürgerliches Ges et zbuch ) provides that anyone who, intentionally or negligently, unlawfully infringes another ’ s right to life, physical integrity, health, freedom, property or other similar right, shall be liable to make compensation for the resulting damage. Article 253 of the Civil Code stipulates that monetary compensation may be demanded for any non-pecuniary damage only in the cases stipulated by law. These include an injury to body, health, freedo m or sexual self ‑ determination.

COMPLAINTS

15. The applicant , who lodged one application concerning the first and third sets of civil proceedings (no. 66861/11) and one regarding the second set of civil proceedings (no. 33478/12) , complained under Article 8 of the insufficient protectio n of his reputation and honour by the domestic courts. He further relied on Article 6 § 1 concerning the incorrect application of domestic law, the assessment of evidence and the denial of the right to be heard.

THE LAW

A. Joinder of the Applications

16. Having regard to the similar subject matter and factual background of the applications, the Court finds it appropriate to examine them , in accordance with Rule 42 § 1 of the Rules of Court , jointly in a single decision.

B. Article 8

17. The applicant complained that the television report, the publication on the homepage and the statements of the city administration violated his right to reputation as part of the right to respect for private life. He relied on Article 8 of the Convention which, as far as relevant, provides:

“ Everyone has the right to respect for his private ( ... ) life ( ... ) .

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ( ... ) for the protection of the rights and freedoms of others. ”

18. The applicant argued that, by refusing his claims for damages, the domestic courts did not sufficiently protect his reputation and honour but allowed his defamation. He further stated that he ha d not been able to find new em ployment as a theatre director, owing to the press reports concerning the termination of his contract.

19. The Court has previously held that a person ’ s reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life” ( Pfeifer v. Austria , no. 12556/03, § 35 , 15 November 2007 ) . The same considerations also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway , no. 28070/06, § 64, 9 April 2009) . The Court has held, moreover, that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one ’ s own actions ( Axel Springer AG v. Germany [GC], no. 39954/08 , § 83 , 7 February 2012).

20. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. They may involve the adoption of measures even in the sphere of the relations of individuals between themselves (see , amongst others, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 , § 98 , ECHR 2012 ). The Court notes that in order to fulfil its positive obligation to secure one person ’ s rights under Article 8, the State may be called upon to interfere with the Article 10 rights of another party.

21. The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation, whether the obligations on the State are positive or negative ( Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07 , § 90, 10 November 2015, with further references). However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. In exercising its supervisory function, the Court ’ s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (ibid.). Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts ( see Couderc and Hachette Filipacchi Associés , cited above, § 92) .

22. The Court has identified the following relevant criteria in the context of balancing Article 8 and Article 10 : contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and c onsequences of the publication (see Couderc and Hachette Filipacchi Associés , cited above, § 93, Axel Springer , cited above, §§ 90-95, and Von Hannover (no. 2) , cited above, §§ 109-113).

23. Turning to the facts of the present case the Court observes that t he television report concerned the change in management of a publicly - funded theatre. In particular due to considerable overspending in the previous year , the debate concerning the budget as well as the management of the theatre was of general interest, at least in the city and region concerned .

24. As regards the applicant ’ s notoriety, the Court notes that t he applicant had been the director of the theatre for more than ten years and that he was relatively well - known. Furthermore, he was not the subject of the report, which concerned the merger of the two theatres and the new director. The applicant was only mentioned to explain the circumstances of the surprising fact that the director of the smaller theatre had bec o me the director of both theatres.

25. As regards the applicant ’ s prior conduct, the Court observes that the domestic courts ’ decisions do not contain any information in this respect . However, r egarding the applicant ’ s conduct after the dismissal , the Court notes that t he applicant did not request a retracti on or rectification from the television channel or the city administration, but waited for three years to bring actions for damages . He did not therefore make use of appropriate means to redress or lessen the alleged violations (see , mutatis mutandis , M ü ller v. Germany , ( dec. ), no. 43829/07, 14 September 2010).

26. As regards the v eracity of the information and the form of the publication the Court notes that, as stated by the domestic courts, t he information in the report concerning the termination of employment was not incorrect as such, but nevertheless imprecise. They held that w hile the overspending had played a role in the decision of the city council to let the applicant go, it was not the official reason for dismissal . The termination of his contract was based on the comparison of the mayor and city employees to the Stasi. However, the Hannover Regional Court found that the format of the report and the chosen language did not create an expectation o f a precise account of events, but a short and artistic overview o f the theatre landscape in Magdeburg. As regards the third set of civil proceedings, the Court notes that the applicant did not complain about a ny particular statement by the mayor or an y other specific city employee, but only in general about the communication with the press regarding the termination of his contract . The Court observes, however, that the Naumburg Court of Appeal held that the facts communicated by the administration were correct.

27. As regards the c onsequences of the publication , the Court notes that t he applicant stated that his inability to find new employment wa s connected to his incorrect reputation f or having an “ inclination for overspending ”. Nonetheless, the Court also observes that he was not able to provide any evidence during the dome stic proceedings concerning this allegation.

28. Hav ing regard to all of the above, the Court concludes that the balance the domestic courts struck does not overste p their margin of appreciation.

29. It follows that the complaint under Article 8 is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

C. Article 6 § 1

30. The applicant also complained under Article 6 § 1 that the German courts infringed his right to be heard and applied the national law incorrectly.

31. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

32. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 17 March 2016 .

Milan BlaÅ¡ko Khanlar Hajiyev              Deputy Registrar President