The plaintiff was State Secretary in the Ministry of the 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 was Minister of Finance. In November 2009, he was appointed Minister of the Interior. At the same time, he was a member of the state parliament. In the mid-1990s, he had an extramarital relationship with a female employee, which resulted in their daughter E. in 1997. At the request of the child's mother, E. received benefits under the Advance Maintenance Payments Act until October 2003. In 2009, the plaintiff's private laptop went missing. The e-mail correspondence between him and the child's mother on it was leaked to the first defendant. On 31 August 2010, three editors of the 1st defendant conducted an interview with the plaintiff. They reproached him with the fact that e-mails sent to him by the child's mother showed that he was E.'s father and had not paid regular maintenance for her. There was a suspicion of social fraud. The plaintiff then obtained an interim injunction prohibiting the first defendant from using four e-mails for publication, either verbatim or in spirit. On 20 September 2010, the former second defendant published an article on its website, naming the plaintiff in full, which dealt with the plaintiff's relationship with the child's mother, the birth of the daughter and the possible fraudulent use of social benefits. In the period between 21 and 25 September 2010, similar reports about the case appeared in the print media of the 1st and 3rd defendants as well as on the internet portal of the former 2nd defendant. On 23 September 2010, the plaintiff resigned from his ministerial post. He announced in a newspaper interview that he was the father of E. and had made up the maintenance payments for her.
The plaintiff considers the use of the private emails for the purpose of reporting to be unlawful. The Regional Court assumed that the plaintiff had a claim against the first defendant until his resignation to refrain from publicly discussing the questions whether he was the father of E., had private or intimate contacts with the child's mother, had paid maintenance for E. and whether the child's mother had wrongly claimed advance maintenance payments for E.. The Regional Court further ordered the defendants to refrain from disseminating the content of individual e-mails in direct or indirect speech. The appeals of the defendants were unsuccessful.
On the appeals of the defendants, the VI Civil Senate of the Federal Court of Justice, which is responsible for the protection of the general right of personality. The Federal Court of Justice reversed the judgements of the lower courts and dismissed the claims. It is true that a report based on the content of the emails exchanged between the plaintiff and his mistress encroaches on the plaintiff's sphere of confidentiality and his right to informational self-determination. Both of the aforementioned manifestations of the general right of personality protect the interest of the communication participant in ensuring that the content of private emails does not become public. However, the interference is not unlawful. The public's interest in information pursued by the defendants and their right to freedom of opinion outweigh the plaintiff's interest in the protection of his personality, even taking into account the fact that the published information was obtained by a third party in an unlawful manner. According to the findings made, the defendants did not obtain the emails by deliberately breaking the law in order to publish them. They also did not participate in the breach of the plaintiff's confidentiality sphere, but merely profited from the breach of confidentiality. The information, the truth of which the plaintiff does not question, has a high "publicity value". It reveals a grievance of considerable weight, the disclosure of which is of overriding public interest. As a minister and as a member of the Landtag, the plaintiff was one of the persons in political life in whose conduct there is an increased interest in information from the point of view of democratic transparency and control. The e-mails leaked to the first defendant prove that the plaintiff evaded economic responsibility for his daughter E. for many years and passed it on to the taxpayer. In his own personal, economic and political interests, he accepted that his former mistress received benefits for their daughter under the Advance Maintenance Payments Act, although the conditions for receiving benefits were not met. This was because the child's mother had not named the plaintiff as E.'s father to the competent authority in breach of her duty.
The Federal Court of Justice also considered the publication of various e-mails in direct or indirect speech to be permissible. The emails published in their wording document with particular clarity how the plaintiff dealt with the responsibility towards his illegitimate daughter and the mother of his child - and thus indirectly towards the general public, which at least until the publication of the information in dispute had to bear the resulting economic consequences.
Judgment of the BGH of 30 September 2014 - VI ZR 490/12
Lower courts:
Berlin Appellate Court - Judgment of 5 November 2012 - 10 U 118/11
Berlin Regional Court - Judgment of 28 June 2011 - 27 O 719/10
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
