In its judgment of June 29, 2021, VI ZR 52/18, the Federal Court of Justice ruled that defamatory blog entries about an individual, made for the purpose of extorting the affected party, are unlawful.
Infringement of Personal Rights due to Extortion
The plaintiff, a financial investor, holds interests in numerous publicly listed companies. The defendant operates the blog www.aktienversenker.de. The defendant acquired shares worth €100,000 in one of the companies in which the plaintiff held an interest.
Shortly thereafter, the defendant's shares experienced a massive price collapse to less than 1 cent per share. On his blog, the defendant subsequently repeatedly referred to the plaintiff, among other things, as a “corporate raider,” “stock market rogue,” or “failure on the stock market.” The plaintiff repeatedly requested the defendant, out of court, to cease the infringing blog posts. In return, the defendant demanded reimbursement from the plaintiff for his incurred losses of €100,000.
The Regional Court upheld the financial investor's claim and ordered the defendant to cease the infringing blog entries and pay damages.
The defendant appealed the Regional Court's judgment. The appellate court subsequently ruled in favor of the defendant, dismissed the claim, and justified its decision as follows: while the publication of the contested posts on the blog did constitute an infringement of the plaintiff financial investor's general personal rights, and the plaintiff's honor was indeed affected, the interference was not unlawful. This was because the plaintiff's interest in protection did not outweigh the defendant's legitimate interests. Anyone active in economic life, like the plaintiff, is significantly exposed to criticism of their performance, which includes being named. Furthermore, a legitimate public interest in reporting arose from the fact that the contested posts concerned events affecting publicly listed companies whose shares had, in some cases, suffered significant price losses. Therefore, the reporting did not have the effect of public shaming. A claim for damages failed because no specific damage had occurred.
The Appellate Court Erred
However, the Federal Court of Justice now ruled that the appellate court had wrongly dismissed the claim. The Federal Court of Justice therefore overturned the appellate court's judgment and remitted the case back to the appellate court.
The plaintiff's general personal rights, as protected by Sections 823, 1004 of the German Civil Code (BGB) and Articles 1 and 2 of the Basic Law (GG), were infringed by the disparaging blog entries.
While the defendant generally had the right to publish blog entries concerning the decline in his shares' value, by labeling the plaintiff as a “corporate raider,” “stock market rogue,” or “failure on the stock market,” the defendant infringed the plaintiff's general personal rights. The blog entries in question were also unlawful. Particularly against the backdrop of the defendant's extortion — threatening to cease such blog entries only upon payment of the €100,000 loss in value — a balancing of interests revealed that the plaintiff's interest in the cessation of disparaging and defamatory posts outweighed the defendant's right to freedom of expression under Article 5 of the Basic Law (GG). Furthermore, a claim for the determination of the defendant's liability for damages was also established. For this, the mere probability of damage occurring was sufficient.
Source: Federal Court of Justice, Judgment of June 29, 2021, VI ZR 52/18
GoldbergUllrich Attorneys at Law 2021
Christopher Pillat, LL.M. (Intellectual Property Law)
Attorney-at-Law
