The plaintiff served as State Secretary in the Ministry of Environment of a German federal state from 1994 to 1999. In 1999, he became Head of the State Chancellery. From October 2004 to november 2009, he held the position of Minister of Finance. In november 2009, he was appointed Minister of the Interior. Concurrently, he was a member of the state parliament. In the mid-1990s, he had an extramarital affair with an employee, which resulted in the birth of their daughter, E., in 1997. Upon the mother's application, E. received benefits under the Maintenance Advance Payments Act until October 2003. In 2009, the plaintiff's private laptop went missing. The email correspondence between him and the child's mother, found on the laptop, was leaked to defendant 1. On august 31, 2010, three editors from defendant 1 conducted an interview with the plaintiff. They confronted him with allegations that emails from the child's mother addressed to him indicated he was E.'s father and had not paid regular maintenance for her. This raised suspicions of social welfare fraud. The plaintiff subsequently obtained a preliminary injunction prohibiting defendant 1 from using four emails, either verbatim or in essence, for journalistic publication. On September 20, 2010, former defendant 2 published an article on its website, fully naming the plaintiff, which addressed his relationship with the child's mother, the birth of their daughter, and the potential fraudulent acquisition of social benefits. Between September 21 and 25, 2010, similar reports about the incident appeared in the print media of defendants 1 and 3, as well as on the internet portal of former defendant 2. On September 23, 2010, the plaintiff resigned from his ministerial office. In a newspaper interview, he announced that he was E.'s father and had subsequently made the maintenance payments for her.
The plaintiff considers the use of private emails for reporting purposes to be unlawful. The District Court ruled that the plaintiff, until his resignation, had a claim against defendant 1 to cease and desist from publicly discussing whether he was E.'s father, whether he had private or intimate contacts with the child's mother, whether he had provided maintenance payments for E., and whether the child's mother had wrongfully claimed maintenance advance payments for E. Furthermore, the District Court ordered the defendants to refrain from disseminating the content of individual emails in direct or indirect speech. The defendants' appeals were unsuccessful.
Upon the defendants' appeals on points of law, the Sixth Civil Senate of the Federal Court of Justice, which is responsible, among other things, for the protection of general personal rights, overturned the judgments of the lower courts and dismissed the claims. While reporting based on the content of emails exchanged between the plaintiff and his mistress does infringe upon the plaintiff's sphere of confidentiality and his right to informational self-determination, both facets of general personal rights protect the interest of the communication participant that the content of private emails does not become public. However, this interference is not unlawful. The public's interest in information, pursued by the defendants, and their right to freedom of expression outweigh the plaintiff's interest in the protection of his personality, even considering that the published information was obtained unlawfully by a third party. According to the findings, the defendants did not obtain the emails through an intentional breach of law for publication. They also did not participate in the breach of the plaintiff's sphere of confidentiality but merely benefited from the breach of confidentiality. The information, the truth of which the plaintiff does not dispute, possesses a high “public interest value.” It reveals a serious grievance of considerable weight, the uncovering of which is of overriding public interest. As a minister and a member of the state parliament, the plaintiff belonged to the public figures whose conduct is subject to a heightened public interest in information from the perspective of democratic transparency and control. The emails leaked to defendant 1 demonstrate that the plaintiff evaded financial responsibility for his daughter E. for many years and shifted this burden onto taxpayers. He accepted, in his own personal, economic, and political interest, that his former mistress received benefits for their joint daughter under the Maintenance Advance Payments Act, even though the conditions for receiving such benefits were not met. This was because the child's mother, in breach of her duty, had not named the plaintiff as E.'s father to the competent authority.
The Federal Court of Justice also deemed the publication of various emails in direct or indirect speech permissible. The emails published verbatim document with particular clarity how the plaintiff handled his responsibility towards his illegitimate daughter and the mother of his child – and thus indirectly towards the public, which, at least until the publication of the disputed information, had to bear the resulting economic consequences.
Judgment of the Federal Court of Justice of September 30, 2014 – VI ZR 490/12
Lower Courts:
Berlin Court of Appeal – Judgment of november 5, 2012 – 10 U 118/11
Berlin District Court – Judgment of June 28, 2011 – 27 O 719/10
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
