The First Civil Senate of the Federal Court of Justice today ruled that the right to information under press law can also be asserted against public limited companies which are active in the area of public services (here: water and energy supply, waste water disposal) and the majority of whose shares are owned by the public sector.
The plaintiff is a journalist. He is working on an article about the financing of the SPD's federal election campaign in 2013 and earlier state election campaigns of the SPD in North Rhine-Westphalia. In this context, he is researching whether internet blogs operated in 2013 and 2010, in which contributions and documents supporting the SPD's election campaigns were published, were financed with public funds.
The defendant is a public limited company that provides water and energy supply and wastewater disposal services. The majority of the shares are held by municipalities. The plaintiff suspects that the defendant has indirectly financed the internet blogs by making excessive payments to companies associated with the blogs for alleged contractual services. He has made a claim against the defendant for information about the contracts awarded to the companies, the services rendered and the remuneration invoiced.
The Regional Court dismissed the action. The Higher Regional Court ordered the defendant to provide information from 2009 onwards. It held that the defendant was obliged to provide information under section 4(1) LPresseG NRW. It was a public authority in the sense of press law because it was controlled by municipal shareholders and used by them to fulfil public tasks in the area of services of general interest. The plaintiff's suspicion that the defendant had covertly financed the election campaigns of the SPD through payments to the companies was not groundless from the outset. The defendant could not refuse to provide information pursuant to § 4.2 of the LPresseG NRW with reference to business secrets worthy of protection. The right to information was limited to information which had a temporal connection with the election campaigns.
In its appeal, the defendant seeks the dismissal of the action in its entirety. In his cross-appeal, the plaintiff continues to pursue his request for information on orders placed by the defendant before 2009.
The Federal Supreme Court dismissed the plaintiff's cross-appeal. The defendant's appeal was only successful insofar as it was directed against the order to provide information since 2014. The Federal Court of Justice considered the defendant to be an authority obliged to provide information within the meaning of Section 4 (1) LPresseG NRW. The concept of public authority under press law also covers legal entities under private law that are controlled by the public sector and are used to fulfil public tasks, for example in the area of public services. Control in this sense is generally assumed if more than half of the shares of the legal entity under private law are owned by the public authorities. These conditions are met in the case in dispute. The defendant cannot successfully invoke a right to refuse information pursuant to § 4.2 no. 3 LPresseG NRW. The interest in information pursued by the plaintiff carries more weight than the interest of the defendant and the service providers concerned in keeping the terms of the contract secret. With regard to the proper use of public funds and the political activities of a municipally controlled company, there is a weighty public interest in information. However, the right to information only covers the period for which the press has a justified interest in information. In the present case, this is the period from 2009 to 2013.
Judgment of the BGH of 16 March 2017 - I ZR 13/16
Lower courts:
LG Essen - Judgment of 14 November 2013 - 3 O 217/13, juris
OLG Hamm - Judgment of 16 December 2015 - I-11 U 5/14, ZD 2016, 439
Source: Press release of the Federal Supreme Court
Goldberg Attorneys at Law 2017
