Blog entries used for blackmail are unlawful

In its judgment of 29 June 2021, VI ZR 52/18, the Federal Court of Justice ruled that defamatory blog entries about a person made for the purpose of blackmailing the person concerned are unlawful.

Violation of the general right of personality due to blackmail

The plaintiff is a financial investor in numerous listed companies. The defendant operates the blog The defendant acquired shares worth €100,000 in one of the companies in which the plaintiff held an interest.

A short time later, the price of the defendant's shares plummeted to less than 1 cent per share. On his blog, the defendant then repeatedly called the plaintiff, among other things, a "company robber", a "stock market hero " or a "stock market loser". The plaintiff repeatedly demanded out of court that the defendant cease and desist from the infringing blog posts. In return, the defendant demanded that the plaintiff reimburse him for his losses of € 100,000.

The Regional Court upheld the financial investor's claim and ordered the defendant to cease and desist from infringing blog entries and to pay damages.

The defendant appealed against the decision of the Regional Court. The Court of Appeal then ruled in favour of the defendant, dismissed the action and reasoned as follows: the publication of the challenged posts on the blog was a violation of the plaintiff financial investor's general right of personality. It was true that the plaintiff's honour had been affected. However, the infringement was not unlawful because the plaintiff's interest in protection did not outweigh the defendant's interests worthy of protection. Anyone who, like the plaintiff, was active in the business world was exposed to considerable criticism of his or her performance, which also included the mention of his or her name. A justified interest in reporting also resulted from the fact that the impugned articles dealt with events concerning companies listed on the stock exchange, some of whose shares had suffered considerable price losses. The reporting therefore did not have the effect of pillorying. A claim for damages failed because no concrete damage had occurred.

The Court of Appeal ruled wrongly

However, the Federal Supreme Court now ruled that the Court of Appeal had wrongly dismissed the action. The Federal Supreme Court therefore set aside the decision of the Court of Appeal and referred the case back to the Court of Appeal.

The plaintiff's general right of personality under §§ 823, 1004 BGB, Art. 1 and 2 GG was violated by the disparaging blog entries.

In principle, the defendant had the right to write blog entries about the fall in the price of his shares. However, by calling the plaintiff a "company robber", a "stock market hero " or a "stock market loser", the defendant had violated the plaintiff's general right of personality. The blog entries in question had also been made unlawfully. In particular, against the background of the defendant's blackmail that the plaintiff would only refrain from such blog entries against payment of the loss of value of €100,000, the plaintiff's interest in refraining from disparaging and defamatory posts outweighed the defendant's right to freedom of expression under Article 5 GG. There was also a claim for a declaration that the defendant was liable for damages. The mere probability of the occurrence of damage was sufficient for this.

Source: BGH, Judgment v. 29.06.2021, VI ZR 52/18

GoldbergUllrich Lawyers 2021

Christopher Pillat, LL.M. (Intellectual Property Law)