Media Reporting on Suspected Criminal Offences in Germany

Media reporting on suspicion of a criminal offence can result in significant public scrutiny and lasting damage to the reputation of those affected. This can have profound consequences, impacting both personal and professional lives. Even in cases where individuals have been subsequently acquitted of charges, accusations of crime can lead to questions and doubts lingering. Such questions can affect well-known individuals, in particular, who may never be able to recover from the enduring repercussions of suspicion.

Legally, individuals affected by suspicion are safeguarded by their general right to privacy, shielding them from the dissemination of false information about themselves. Furthermore, the presumption of innocence, enshrined in German law and international conventions, reinforces this protection. This right is protected, for example, under the European Convention of Human Rights under Art. 6 (“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”) This principle, applicable in courts and media reporting, underscores the importance of respecting the rights and dignity of individuals accused of wrongdoing.

At Schlun & Elseven Rechtsanwälte, we are fully aware of the concerns surrounding media reporting or suspected offences and the risk of reputational damage. When individuals are publicly implicated in criminal activity based solely on suspicion, their reputations and livelihoods can be irreparably harmed. Our lawyers analyse case studies to illustrate the tangible consequences of sensationalised reporting, emphasising the profound impact on the lives of those unfairly targeted.

Moreover, suspicion reporting directly threatens the presumption of innocence, a foundational principle of the legal system. By disseminating unverified allegations to a broad audience, journalists may risk prejudicing public opinion and undermining the rights of individuals to a fair trial. Our firm is prepared to stand up for our clients in such cases and offers strategic guidance on preserving the integrity of the legal process. In the face of these challenges, our lawyers are ready to outline the legal recourse available to individuals unjustly targeted by such media reporting. Our team will outline their legal options, from defamation claims to privacy rights violations, and we will leverage our expertise to advocate for the rights and interests of our clients. Through thorough legal advocacy, we strive to hold media organisations accountable for irresponsible reporting practices and secure justice for those affected by such reporting.

In Germany, the media is pivotal in disseminating information to the public, including reports on suspected criminal offences. While the freedom of the press is a fundamental right protected by law, it comes with inherent responsibilities and ethical considerations. The media has a legitimate interest in reporting on matters of public interest, including criminal proceedings, as part of its role in shaping public discourse and fostering transparency in society. Failure to do so could impede the media’s vital function of reporting on ongoing criminal proceedings, as fear of disseminating potentially damaging allegations could stifle necessary coverage.

The media’s interest in reporting on criminal offences and legal proceedings is firmly rooted in fundamental law. Specifically, the freedom of opinion and freedom of the press, as outlined in Article 5(1) of the Basic Law (German Constitution), safeguard the press’s right to contribute to public discourse and shape public opinion. Indeed, as a cornerstone of a democratic society, the media serves as a crucial “fourth estate” tasked with informing the public about significant events and developments in contemporary history.

However, this interest must be balanced with the rights of individuals, particularly those accused of criminal activity. Suspected offenders are entitled to the presumption of innocence until proven guilty, and the media must respect their rights to privacy and reputation. Sensationalised or irresponsible reporting can lead to unwarranted damage to the reputation of individuals, potentially compromising their right to a fair trial and undermining public trust in the justice system.

At Schlun & Elseven Rechtsanwälte, our lawyers play a crucial role in ensuring that the media fulfils its responsibilities while respecting the rights of all parties involved. Our lawyers advise media organisations on ethical reporting practices, providing guidance on the complexities of defamation law, privacy rights, and the presumption of innocence. Through proactive legal counsel, Schlun & Elseven’s legal team can help media outlets balance the public’s right to know and protect individual rights.

The delicate balance between the fundamental rights of individuals involved in suspicion reporting has resulted in established legal principles guiding journalistic practices. These principles enable both traditional journalists and bloggers to deal with the reporting of unproven suspicions with some legal certainty. § 193 German Criminal Code, which allows for the “protection of legitimate interests” as a defence against potentially punishable defamation under § 186 StGB, further clarifies permissible reporting boundaries.

While these principles provide a framework for reporting on suspected offences, they are not rigid rules but rather guidelines. Each case requires a careful weighing of conflicting interests. Journalists must exercise discretion and judgment, weighing the potential impact of their reporting on all parties involved. The value of journalistic due diligence must also be emphasised. In practice, this involves conducting thorough research to corroborate information, allowing individuals to respond to allegations, and ensuring accuracy and fairness in reporting. Consulting with legal experts can provide valuable guidance in determining the boundaries of permissible reporting and mitigating the risk of legal repercussions.

Key points derived from case law form the core of permissible reporting on suspicions:

• The public interest in information regarding the offence and the individual’s identity.
• The presence of a minimum amount of evidence.
• Adherence to journalistic due diligence, including providing the individual an opportunity to comment and ensuring truthful reporting.
• Avoiding prejudgment of the individual involved.

At Schlun & Elseven Rechtsanwälte, our lawyers can assess how these matters apply to your case.

The public’s right to access information is a cornerstone of democratic society, serving as a vital tool for fostering transparency, accountability, and informed public discourse. In cases involving suspected offences, the media’s ability to report on such matters hinges on the presence of a compelling public interest in the information provided. This interest may be warranted in instances involving notable individuals, serious crimes, or offences with significant societal ramifications, such as corruption scandals or crimes against vulnerable populations.

When considering whether to publish the name or photo of a suspected offender alongside the report of the alleged offence, the public interest must specifically pertain to the individual in question. Public figures accused of serious crimes are more likely to be named than private individuals. Moreover, suspicions must be substantiated by credible facts.

However, exercising this right must be balanced against the rights and privacy of individuals implicated in suspicions. While the public’s right to know is crucial, it must be weighed against considerations of fairness, accuracy, and the potential harm to the reputations and rights of those involved. Furthermore, if the suspect is a juvenile offender, their interest in rehabilitation and reintegration into society typically precedes such considerations. Ultimately, determining whether to disclose information must carefully consider the broader societal impact, ensuring that the public’s right to information is upheld while safeguarding the rights and dignity of individuals.

In Germany, reporting on suspected criminal offences demands stringent adherence to the requirement for a minimum amount of evidence. Acknowledging the inherent uncertainty surrounding whether the individual has committed the alleged offence is essential. Typically, this evidence must go beyond mere initiation of preliminary proceedings, which occur when there’s a possibility but not certainty of a criminal offence. This crucial stipulation safeguards fairness, accuracy, and respect for individual rights inherent in the legal system. Suspicion alone does not constitute guilt, and therefore, reporting on suspicions is permissible only when supported by credible evidence substantiating the allegations.

Exceptions arise when a suspected offender is in pre-trial detention or if there’s a clear public interest in providing information. While the public’s right to information is paramount, it must be balanced against the rights and dignity of individuals implicated in suspicions. Until a guilty verdict is reached, the rights to privacy and presumption of innocence prevail, underscoring the importance of responsible and ethical journalism. Clarity and transparency in reporting ensure that suspicions are presented as such, maintaining the integrity of the legal process and upholding the presumption of innocence until proven otherwise.

It is crucial to maintain clarity for readers by consistently referring to individuals as “suspected” offenders and refraining from presenting suspicions as facts. Only in cases with a confession accompanied by additional evidence or when the offence was committed publicly can an individual be referred to as an offender before conviction.

Determining the reliability of information and the extent of efforts required for publishing reports on potential offenders pose critical questions for journalists. The standards for journalistic diligence vary based on the specifics of each case, particularly concerning the source of the report and the potential impact on the rights of the individual involved. The severity of possible consequences directly correlates with the level of diligence expected.

For professional journalists, adherence to the highest research and reporting standards is paramount. This principle, enshrined in state press laws and reinforced by voluntary codes of conduct like the Press Code, emphasizes thorough self-research and verification of information. Journalists must diligently pursue incriminating and exonerating evidence while allowing the individual implicated to provide a statement. Moreover, factual accuracy and truthful representation of statements are non-negotiable, with journalists obligated to present exonerating circumstances and refrain from raising speculation as fact. Clarity regarding the absence of a statement from the individual in question is also essential, ensuring transparency in reporting practices.

Article 13 of the German Press Code outlines the importance of journalistic integrity by stating that: “Reports on investigations and court cases serve to inform the public in a careful way about crimes and other infringements of the law… In the process, it must not prejudge them…  the aim of court reporting must not be to punish convicted criminals socially as well by using the media as a “pillory”. Reports should make a clear distinction between suspicion and proven guilt.”

In the event that it is later determined, such as through an acquittal, that the suspicion was unfounded and the individual in question is innocent, two courses of action are available:

• Correct the article retrospectively (online) or issue a correction. However, it is typically not mandatory to do so.
• Alternatively, if the article remains accessible but is clearly identified as an archived piece, you must include an addendum clarifying that the suspicion has been unsubstantiated. Furthermore, if subsequent articles refer to the archived piece, it is necessary to mention that the suspicion has not been upheld in those articles.

At Schlun & Elseven Rechtsanwälte, our media lawyers are available to advise journalists on this process and can support them in mitigating any legal ramifications that may arise from erroneous reporting. Our team provides strategic advice on defence against defamation claims, privacy rights violations, and potential reputational damage, helping media organizations uphold their ethical and legal obligations while minimising legal exposure. Moreover, our firm is available to assist in crafting transparent and responsible communication strategies to address the acquittal.