In 1993, the plaintiff was sentenced to life imprisonment together with his brother for the murder of the actor Walter Sedlmayr. He was released on parole in January 2008. He is demanding that a media company doing business in the Republic of Austria refrain from reporting on him in connection with the crime, mentioning his name in full. Until 18 June 2007, the defendant company made a report dated 23 august 1999 and taken over from another provider available on its website for free retrieval by the public. It stated truthfully, mentioning the first and last names of the plaintiff and his brother, that both were now, nine years after the murder, lodging a constitutional complaint against their conviction for the crime.
The action was successful in both lower instances. With the appeal allowed by the Court of Appeal, the defendant continues to pursue its motion to dismiss the action. The VIth Civil Senate of the Federal Court of Justice, which is responsible for the protection of the general right of personality. By order of 10 november 2009, the VIth Civil Senate of the Federal Court of Justice, which is responsible inter alia for the protection of the general right of personality, referred the case to the Court of Justice of the European Communities for clarification of the questions under which conditions the international jurisdiction of the courts is to be assumed for actions for injunctions against internet publications by providers established in another EU Member State and whether the claim for injunctive relief asserted is governed by German law or, in accordance with the country of origin principle of the e-commerce Directive, by Austrian law. The Court of Justice ruled on this in its judgment of 25 October 2011.
Based on the Court's decision, the VI Civil Senate of the Federal Court of Justice affirmed the international jurisdiction of the German courts because the centre of the plaintiff's interests is located in Germany. It further ruled that the claim asserted by the plaintiff is to be assessed according to German law because the place of success is in Germany. This is because the respect that the plaintiff, who resides in Germany, enjoys in his circle of life in Germany is disturbed here. The weighing of the plaintiff's right to protection of his personality and respect for his private life against the defendant's right to freedom of opinion and freedom of the media - to be carried out in each individual case - led, as in the parallel proceedings (see BGH press releases 255/2009 and 30/2010), to the priority of the defendant's right to freedom of opinion. The Senate therefore dismissed the action.
Judgment of the BGH of 8 May 2012 - VI ZR 217/08
Lower courts:
LG Hamburg - Decision of 18 January 2008 - 324 O 548/07
Hamburg Higher Regional Court - Decision of 29 July 2008 - 7 U 22/08
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
