Cases & Projects

In the wake of a heavy defeat for the government in regional elections, early general elections had been called. The leader of the opposition alleged that this was because the Chancellor, Gerhard Schroeder, had a lucrative job coming up in a consortium that would build a gas pipeline from Russia - the contract for which he had helped negotiate whilst in office. German magazine, Bild, wanted to include this allegation in an article it was running.

The German courts ruled that the allegation was defamatory, and that although it had been made by the leader of the opposition, the media could not reprint the allegation unless they took full responsibility for its truthfulness and obtained a response from the Chancellor. 

MLDI is highly concerned about the example that this case may set for other countries, such as Russia, where the government would all too eagerly embrace the kind of principles that the German courts appear to have promoted. It therefore asked the European Court's permission to intervene and obtained the services of leading defamation lawyer, Heather Rogers QC, who, with leading public lawyer, Jessica Simor, drafted a submission proposing five principles that should govern cases such as these: 

1. A requirement that the media must – in every case - carry out their own investigations before publishing a statement which may carry a defamatory allegation is an unnecessary and unwarranted infringement of the right to freedom of expression. There are cases in which there is an important public interest in the media reporting statements made, or questions asked, by third parties without first carrying out their own independent investigation. It is vital to recognise that there are cases – sometimes said to be covered by the principle of “neutral reportage” – where the media have a right (even a duty) to publish statements they have not verified.
2. A requirement that the media must obtain the response of the person about whom a statement is made, or question asked, before publication is an unnecessary and unwarranted restriction on free speech. Such a requirement is open to abuse by persons seeking to stifle legitimate public debate.
3. Any requirement that reporting be “objective” must take account of the fact that (a) it is for the media, not the court, to determine how matters should be reported; and (b) reporting on matters of public debate takes place on a continuing basis: an article including a question (but not the answer) may be followed by articles including a response.
4. Where the media report a question that has been asked on a matter of public interest (which may carry an inference of suspicion), the court should protect the report if there was a sufficient basis for asking the question. The fact that the court considers that there may be a good answer to the question, or that there are other factors tending against suspicion, does not mean that the question should not have been asked.
5. Questions about the conduct and motives of leading politicians, in relation to their work or political acts, are not part of their “private” life, but are properly to be considered as relating to public conduct and, as such, a legitimate subject for discussion and debate. Any curtailment of freedom of speech on such matters requires strict justification.

 MLDI's full submission to the Court can be downloaded here.