THIRD SECTION

DECISION

Applications nos. 25845/17 and 34929/18 FUNKE WOMAN GROUP GMBH against Germany

The European Court of Human Rights (Third Section), sitting on 7 December 2021 as a Committee composed of:

Georgios A. Serghides, President, Anja Seibert-Fohr, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above applications lodged on 31 March 2017 and 20 July 2018 respectively,

Having deliberated, decides as follows:

THE FACTS

1. The applicant company, Funke Woman Group GmbH, is a German private limited company whose registered office is in Ismaning. It was represented before the Court by Mr G. Himmelsbach, a lawyer practising in Munich.

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

3. The applicant company publishes die aktuelle , a weekly tabloid. The present case concerns rectifications of statements regarding Mr G., a well ‑ known German musician, and Mr J., a German television presenter.

4. On 30 January 2016 the applicant company published a photograph on the front cover of die aktuelle showing G. with a woman standing nearby. The picture was captioned:

“G.

New love!

The first photos!

Page 10”

5. On 4 February 2016 G. requested that the applicant company publish the following rectification:

“On the front cover of the 30 January 2016 issue of die aktuelle a picture of me standing next to a woman was published with the caption ‘G. New love! The first photos!’ In this regard, I wish to point out: The woman is not my ‘new love’.”

6. On 13 February 2016 the applicant company published the same photograph of G. and the woman with the caption:

“G.

Fatal mix-up!

That is not his girlfriend!”

7. Despite the publication of this statement, G. maintained his request and on 25 February 2016 the Munich I Regional Court ordered the applicant company to publish G.’s rectification, relying on section 10 of the Bavarian Press Act ( Bayerisches Pressegesetz ). On 18 May 2016 the Munich Court of Appeal dismissed an appeal by the applicant company. The courts considered that the second statement published in die aktuelle lacked reference to the first statement and did not make it clear that it was meant to rectify that statement.

8. On 4 June 2016 the applicant company published the requested rectification on the front cover of die aktuelle .

9. On 17 September 2016 the Federal Constitutional Court refused to examine a constitutional complaint by the applicant company without providing reasons (decision no. 1 BvR 1467/16).

10. On 28 January 2017 the applicant company published a photograph of J. on the front cover of die aktuelle . J., who is married, was shown standing next to a woman. Both were dressed in evening attire and were looking in the direction of the photographer with an expression of surprise. The picture was accompanied by the following text:

“J.

Busted! [ Erwischt! ]

Potsdam at night ...”

11. On 2 February 2017 J. requested that the applicant company publish the following rectification:

“On 28 January 2017 die aktuelle published a photograph of me and a woman with the caption ‘J. Busted! Potsdam at night ...’. In this regard I wish to point out: The photograph shows me leaving the opening of a museum between 6 p.m. and 7 p.m. next to the wife of a politician who left the event together with us but is not depicted.”

12. Since the applicant company refused the request, J. brought the matter before the Munich I Regional Court. On 23 February 2017 the court rejected his request for an injunction, finding that the publication in issue did not constitute a statement of fact open to rectification under section 10 of the Bavarian Press Act, since the caption allowed for different interpretations of what had transpired between J. and the woman.

13. J. appealed and on 8 March 2017 the Munich Court of Appeal largely ruled in his favour. It found that, for the relevant public, the term “Busted!” in conjunction with the photograph could only mean that the depicted encounter was of a morally offensive nature. As far as the presentation and content of the rectification were concerned, it found that J.’s text was limited to the information relevant to deny the alleged secret meeting. However, in order to reduce the area of the front cover taken up by the rectification to roughly the same as the original statement, the court ordered a smaller font size than originally requested.

14. On 3 June 2017 the applicant company published the requested rectification on the front cover of die aktuelle .

15. On 4 January 2018 the Federal Constitutional Court refused to examine a constitutional complaint by the applicant company, without providing reasons (decision no. 1 BvR 2432/17).

16. Section 10 of the Bavarian Press Act provides that, at the request of a person directly concerned by a statement of fact made in a newspaper or magazine, the publisher is under an obligation to publish a rectification. It also follows from the national case-law that a request to publish a rectification requires a legitimate interest on the part of the person concerned.

COMPLAINTS

17. The applicant company complained under Article 10 of the Convention about the obligation to publish the two rectifications.

THE LAW

18. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

19. The applicant company relied on Article 10 of the Convention, the relevant parts of which provide:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”

20. The applicant company argued that the domestic courts had not sufficiently taken its journalistic freedom into account when ordering the publication of the rectifications.

21. Regarding the rectification requested by G., it was not in dispute between the parties that the applicant company had published a false statement about him. However, the applicant company argued that the second statement it had published on 13 February 2016 had clarified the fact that the woman depicted was not G.’s girlfriend. Accordingly, G. could no longer claim to have a legitimate interest in further rectification.

22. With regard to J., the applicant company asserted that the publication had not conveyed any false information. The caption “J. Busted!” could not be considered a statement of fact as required by section 10 of the Bavarian Press Act, since it was ambiguous and open to interpretation. The applicant company further criticised the length of the rectification it had been ordered to publish in response, notably in comparison to the length of the original caption.

23. The Court notes that the obligation to publish a rectification may be seen as a normal element of the legal framework governing the exercise of the freedom of expression by the print media (see Kaperzynski v. Poland , no. 43206/07, § 66, 3 April 2012). However, as a general principle, newspapers and other privately owned media must be free to exercise editorial discretion in deciding whether to publish articles, comments and letters submitted by private individuals (see Melnychuk v. Ukraine , no. 28743/03, 5 July 2005). It follows that a court order to publish a rectification constitutes an interference with the publisher’s right to freedom of expression and must be justified under Article 10 § 2 of the Convention.

24. The interferences had a legal basis in section 10 of the Bavarian Press Act. The Court further notes that the two rectifications served the purpose of protecting the reputation of G. and J., respectively, and therefore pursued the legitimate aim of the protection of the reputation or rights of others within the meaning of Article 10 § 2 of the Convention.

25. The Court must now examine whether the interference was “necessary in a democratic society”. This depends on whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient (see Kaperzynski , cited above, § 62). In this regard a fair balance has to be struck between the right to respect for private life and the right to freedom of expression. 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 v. France , no. 40454/07, § 92, 12 June 2014).

26. Regarding G.’s request, the domestic courts found that, in principle, a second statement released by the publisher correcting the facts in dispute could eliminate the legitimate interest in a rectification. However, they considered that the second statement lacked reference to the first statement, since it had not been clear to readers that it was meant to rectify the applicant company’s first statement identifying G.’s “new love”. Furthermore, the courts found that for the average reader the wording “Fatal mix-up!” did not imply the admission of an error on the applicant company’s part, but rather alluded to an embarrassing mistake committed by a third party regarding the woman’s identity.

27. The Court finds no issue with the national courts’ starting-point that the subsequent correction of a statement of fact may render a rectification unnecessary, or with their consideration that this would require a clear reference to the erroneous statement. In the present case the second statement was clearly not primarily aimed at correcting a factual error but rather at further kindling curiosity about G.’s love life. The Court therefore sees no reason to disagree with the domestic courts’ findings that G.’s request to have his rectification published was not resolved by the publication of the second statement.

28. Regarding J., the Court of Appeal considered that the photograph showing J. next to a woman with the caption “J. Busted! Potsdam at night ...” would lead readers to conclude that J. had meant the depicted encounter to remain a secret on account of its morally offensive nature. The court observed that the expression “Busted!” primarily referred to catching another person in the act of an illicit activity, this meaning being further reinforced by the information that the photograph had been taken at night and the look of surprise on the faces of J. and the woman beside him. Accordingly, the publication constituted a statement of fact and could be challenged by demanding a rectification under domestic law. Lastly, the court considered the length of the rectification to be adequate but changed the font size in order to reduce the portion of the front cover the text would take up.

29. In this connection, the Court reiterates that its task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see Bédat v. Switzerland [GC], no. 56925/08, § 48, 29 March 2016).

31. In the light of the above, the Court considers that the domestic courts struck a fair balance between the applicant company’s right to freedom of expression and the other parties’ right to protection of their reputation by ordering the applicant company to publish the rectifications. Accordingly, there are no strong reasons to substitute its view for that of the domestic courts.

32. It follows that the complaints under Article 10 are inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

33. For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 13 January 2022.

Olga Chernishova Georgios A. Serghides Deputy Registrar President