Authorities often act "in secret". However, it does happen that authorities make public statements on facts. Sometimes they overstep the boundaries of what is permissible. You can take action against unlawful statements. However, you must be careful about which legal process and which court are responsible for this.
What rules apply to statements made by authorities?
The website of a (federal) authority in Berlin contained a possibly illegal statement. The defendant authority is the publisher of the website. It is supported by an agency that implements the publications technically and in terms of content according to the authority's instructions.
The plaintiff felt violated by the authority's statement and therefore brought an action before the Hamburg Regional Court. The Hamburg Regional Court declared itself inadmissible and referred the legal dispute to the Berlin Administrative Court.
Do I have to take legal action against an authority before the administrative court?
An action must be brought before the administrative court if it is a dispute under public law. A dispute is public law if the underlying facts stem from public law.
Statements made by a federal authority (as in the present case) are subject to public law if they are made in connection with the performance of public duties. It is irrelevant whether the content of the statement relates to a matter of private law; the only decisive factor is the function in which the challenged statement was made.
When does an authority act under public law?
The authority acted under public law because it disseminated information on topics related to health and care, which as state information action is part of its public duties.
The defendant agency is a private company. However, within the scope of its agency and editorial activities, it acts as a dependent administrative assistant, so that its conduct is to be attributed to the authority.
Get good advice!
Lawsuits against authorities are generally a time-consuming and costly affair. An action before a court without jurisdiction is an annoying and possibly expensive matter. Any costs incurred are unnecessary and could, in the worst case, mean the end for you.
Therefore, do not try to sue on your own and seek competent advice. This will help you reach your goal or at least the right court.
Source: LG Hamburg, order dated 21.01.2021, ref. no. 324 O 462/20
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GoldbergUllrich Lawyers 2021
Julius Oberste-Dommes LL.M. (Information Law)
Lawyer and
Specialist lawyer for information technology law
