Lange Geismarstraße 55, 37073 Göttingen,
Plaintiff
Eichhofstraße 14, 24116 Kiel, – H 4652/10 –
against
xxx
defendant,
Subject of the dispute: Claim for injunctive relief (cessation and removal of consequences)
Did the Göttingen Administrative Court – 1st Chamber – decide on the oral hearing of February 9, 2011 xxx
The proceedings will be discontinued if the legal dispute has been mutually declared settled.
The defendant is ordered to refrain from publicly asserting, either verbatim or in substance, that the actions for failure to act brought by the plaintiff in social law disputes are "profiteering" or an "attempt at profiteering", that such actions were brought "without material interests of the plaintiffs" (from the social court proceedings) in order to "generate" legal fees, or that the plaintiff himself ensured that the files were withdrawn from the county for several weeks.
The defendant is ordered to publicly retract, in a press release to the plaintiff, StadtRadio Göttingen, Göttinger Tageblatt, taz Hamburg, Harzkurier Osterode, and "extra am Mittwoch," the assertion that the plaintiff's actions for failure to act in social court disputes are "profiteering" or "attempted profiteering," or that such actions were brought "without any material interest on the part of the plaintiffs" (from the social court proceedings) in order to "generate" legal fees. Furthermore, the defendant is ordered to retract, in the presence of the plaintiff, Harzkurier Osterode, and "extra am Mittwoch," the assertion that the plaintiff himself ensured that the county's files were withheld for several weeks.
Furthermore, the lawsuit is dismissed.
The defendant shall bear the costs of the proceedings.
The judgment is provisionally enforceable with respect to costs. The defendant may avert enforcement by providing security in the amount of the enforceable costs, unless the plaintiff provides security in the same amount before enforcement.
Facts
The plaintiff, in his capacity as a lawyer, seeks an injunction against statements made by the defendant's legal counsel and their retraction.
In April and June 2010, respectively, the plaintiff filed two actions for failure to act against the defendant before the Hildesheim Social Court, after objections to social security decisions had not been decided within the three-month period stipulated in Section 88 Paragraph 2 of the Social Courts Act (SGG). Following service of the actions for failure to act, the defendant issued the respective decisions on the objections, whereupon the plaintiff, on behalf of his clients, declared the proceedings concluded and requested that the defendant be ordered to pay the costs. In two separate briefs dated August 18, 2010, the defendant's legal counsel responded to both proceedings and argued against a cost order against the defendant. In these briefs, he stated, among other things, that the filing of the actions for failure to act was itself "nothing more than extortion" or "nothing more than an attempt at extortion," because the plaintiff, as the plaintiff's then-legal representative, had been granted access to the files, but the administrative documents were only returned weeks later.
By letter dated August 24, 2010, the plaintiff filed a criminal complaint and a formal request for prosecution against the defendant's legal counsel for defamation in connection with these statements. The public prosecutor's investigation is still ongoing.
On August 25, 2010, the plaintiff issued a press release outlining the facts of the case and disseminating the defendant's legal counsel's accusations of "profiteering." The release received widespread coverage in the regional and, to some extent, national press. The articles reported that the defendant's legal counsel did not deny the use of the term "profiteering" but stood by it, adding that the lawsuits had been filed solely to generate revenue and legal fees. Furthermore, in several publications (Harzkurier Osterode, August 28, 2010, and "extra am Mittwoch," September 1, 2010), the defendant's legal counsel stated that the plaintiff had filed an action for failure to act, even though the plaintiff himself had ensured, through weeks of prior access to the case files in his office and urgent applications to the court, that the defendant had been deprived of access to the files for several weeks.
By decision of September 20, 2010, the Hildesheim Social Court, in one of the concluded inaction proceedings (S 54 AS 744/10), ordered the defendant to bear the costs, reasoning that the defendant could not derive sufficient grounds within the meaning of Section 88 of the Social Court Act (SGG) from the fact that preliminary legal protection proceedings had been pending between the parties after the plaintiff had filed her objection. The defendant was obligated to create the necessary duplicate files to meet the deadlines for submitting documents or making decisions.
In a written submission dated September 24, 2010, to the Hildesheim Social Court in another social law dispute (S 33 AS 1135/10), the defendant stated that "the disputed submission of August 18, 2010, provided a welcome opportunity for the plaintiff to promote himself. It seems that only the plaintiff himself believes he was personally insulted: neither the Administrative Court nor the Public Prosecutor's Office had any objections to the wording at the time." In a further statement to the Hildesheim Social Court dated September 28, 2010, again in a different legal dispute (S 45 AS 1332/10), the defendant asserted that the fact that the plaintiff had not amended the action for failure to act to include the benefit in the main proceedings, but had instead filed a separate action for that purpose, demonstrates that the objective purpose of the actions for failure to act must be seen solely as "generating attorney fees.".
On September 7, 2010, the plaintiff filed a lawsuit. He argues that describing a permissible, and indeed necessary, action for failure to act as "profiteering" constitutes defamation. He claims that the Higher Regional Court of Braunschweig already established this in a separate appeal regarding the value in dispute. Furthermore, he asserts that he did not have access to the files in the disputed social security cases for several weeks, a fact known to the defendant's legal counsel. Rather, he received the administrative files at his office on January 18, 2010, and returned them to the defendant on January 21, 2010. The defendant's written submission of September 24, 2010, demonstrates that he maintains his position on the disputed statements.
In the oral proceedings, the defendant declared that he would refrain in the future from claiming that the plaintiff had "extended weeks to inspect the files in his office" in one of the underlying social security proceedings. He also stated that he would retract this statement to the Harzkurier Osterode newspaper and "extra am Mittwoch" (extra on Wednesday). Thereupon, the parties declared the legal dispute settled in this respect.
The plaintiff requests that
1. To order the defendant, in particular xxx, to refrain from publicly or implicitly asserting that the actions for failure to act brought by the plaintiff in social law disputes are "profiteering" or "attempted profiteering", that such actions were brought "without material interests of the plaintiffs" (from the social law proceedings) in order to "generate" legal fees, or that the plaintiff himself ensured that the files were withdrawn from the county for several weeks,
2. to order the defendant to publicly retract the statements mentioned in point 1 of the application in a press release, which is to be sent to the usual press distribution list of the district, but in any case to the following press organs and persons:
City Radio Göttingen,
Göttinger Tageblatt
, taz Hamburg
, Harzkurier Osterode,
extra on Wednesday and
the plaintiff
The defendant requests that
to dismiss the lawsuit.
He argues that the plaintiff lacks standing to sue because he himself disseminated the disputed words through a press release. Furthermore, there is no risk of recurrence, as the defendant has no interest in keeping this matter in the public eye. Moreover, the term "pocket-grabbing" represents a value judgment made in the pursuit of legitimate legal and economic interests. It does not constitute an insult. In any case, he did not call the plaintiff a "pocket-grabber," but merely described his behavior. Therefore, no personal characterization of the plaintiff was made.
Upon the application for a preliminary injunction to prevent the defendant from asserting "pocketing fraud" and from conducting "weeks-long file inspections in the underlying social welfare proceedings in his office," the court, by a legally binding decision of September 17, 2010, prohibited the defendant from publicly asserting, either verbatim or in substance, that the plaintiff had "weeks-long file inspections in his office" in social welfare proceedings and "himself ensured that the files were withdrawn from the county for several weeks." The court otherwise dismissed the application.
For further details of the facts and the legal arguments, reference is made to the contents of the court file.
Reasons for the decision
1. a) Insofar as the plaintiff asserts a claim for injunctive relief and retraction against the defendant, the action is admissible, in particular, the administrative courts have jurisdiction. Pursuant to Section 40 Paragraph 1 Sentence 1 of the Code of Administrative Court Procedure (VwGO), the administrative courts have jurisdiction in all public-law disputes of a non-constitutional nature, unless the dispute is expressly assigned to another court by federal law. Actions for injunctive relief and retraction of defamatory, credit-damaging, or otherwise impermissible statements made by a public authority in the performance of its sovereign duties and based on existing or purported public-law powers constitute public-law disputes (see Kopp/Schenke, VwGO, 16th edition 2009, Section 40, marginal note 28). The statements made by the defendant's legal counsel were made in his capacity as a public official in the performance of his public duties as a legal representative in court proceedings.
b) The appropriate type of action for the injunction and revocation claim pursued by the plaintiff is the general performance action.
Insofar as the plaintiff demands that the defendant refrain from making future statements, there is a special need for legal protection, i.e., specifically aimed at obtaining preventive legal protection. The plaintiff cannot be expected to wait for the disputed statement to be repeated before taking action (see also Lüneburg Administrative Court, judgment of October 17, 2007 – 5 A 247/06 –, Juris para. 19). There is also a risk of repetition. The legitimate interest in seeking judicial protection with regard to the injunction ceases to exist only if a repetition of the statement in question can be clearly and unequivocally ruled out from the outset. The existence of a risk of repetition is a factual element for the existence of a claim for injunctive relief, so it is questionable whether it must already be examined within the scope of admissibility (cf. Regensburg Administrative Court, judgment of December 10, 2009 – RO 3 K 08.1960 –, Juris para. 28). However, this can remain undecided, since the existence of a risk of repetition cannot be ruled out from the outset here. The defendant's legal counsel essentially maintains his statements and defends them. This is particularly evident in the two written submissions of September 24 and 28, 2010.
The plaintiff's need for legal protection is not negated simply because the statements in question were made in direct connection with the pursuit or defense of legal rights in a legally regulated administrative or judicial proceeding. Such statements, which in individual cases may be offensive, should generally not be subject to defamation claims. The original proceedings should not be impaired by any restriction of the freedom of expression of those involved. Rather, the parties, and consequently their authorized representatives or lawyers, should be permitted to present everything they deem necessary to protect the parties' rights in court proceedings, even if this affects the honor of another. Whether the submissions are true and relevant should be examined solely in the original proceedings, which are governed by their own rules. It would be incompatible with the legitimate interests of those affected and with the requirements of the proper functioning of the administration of justice if the competences of the court of the original proceedings could be circumvented by the possibility of asserting defensive claims in separate proceedings – potentially before a different court. Therefore, in such cases, the need for legal protection for a defamation claim is generally considered to be lacking (Higher Administrative Court of Saarland, decision of March 29, 2007 – 1 Q 46/06 –, Juris para. 15 with further references). While the statements in question regarding the accusation of "poaching" were made in social court proceedings, so that the need for legal protection for the claim might be lacking in this respect, an exception applies if the statements constitute abusive criticism. However, an expression of opinion does not become abusive simply because of its derogatory effect on third parties. A derogatory statement only takes on the character of defamation when the focus shifts from the substantive debate to the personal denigration. It must, beyond even polemical and exaggerated criticism, consist of the denigration of the person (OVG Saarland, loc. cit., para. 18). As with the risk of repetition, the defamatory statement is a prerequisite for an injunction, so it is also questionable here whether, within the scope of admissibility, it must already be examined whether the defamatory statement constitutes defamation in the sense described above. However, this can also remain undecided, since it cannot be ruled out from the outset that the statements in question could constitute defamation. To avoid repetition, reference is made to the following examination of the merits.
The plaintiff's legitimate interest in obtaining an injunction against the allegations of "pocketing fraud" is not negated simply because the plaintiff himself made these statements public. Such negligence would only be warranted if the lawsuit were manifestly an abuse of rights. There is no evidence whatsoever to suggest that the plaintiff disseminated the statements solely to create grounds for pursuing an injunction. Since the statements, contained in a court document, had already reached a certain level of publicity—at least those involved in the proceedings and the court staff—and the plaintiff had no control over their further dissemination, he was able to address the (broader) public through his own statement without forfeiting his right to an injunction.
2. The claim is justified to the extent indicated in the operative part of the judgment.
The claim for an injunction against the statements in question is rooted in Section 1004 Paragraph 1 Sentence 1 of the German Civil Code (BGB), which, beyond the property rights explicitly mentioned in the provision, is applicable by analogy to violations of other absolute rights such as honor. The legal basis for the injunction is, by analogy with Section 12 Sentence 2, Section 862 Paragraph 1 Sentence 2, Section 1004 Paragraph 1 Sentence 2 of the BGB in conjunction with Section 823 Paragraphs 1 and 2 of the BGB, Sections 185 et seq. of the German Criminal Code (StGB) in conjunction with Articles 1, 2, and 12 of the German Basic Law (GG), the so-called quasi-negatory claim for an injunction. This claim is triggered by attacks on the protected sphere of personality rights and can be directed against factual assertions as well as expressions of opinion and value judgments.
Statements of fact exist when they are based on verifiable events, meaning the statement's accuracy can be objectively established through the gathering of evidence. Opinions, on the other hand, are characterized by elements of belief, conviction, or evaluation and are therefore not subject to objective proof of their accuracy. If both elements are intertwined in a statement and cannot be separated without altering its meaning, a distinction must be made based on the statement's focus—whether evaluation predominates or the provision of factual information. The truthfulness of statements of fact must always be verified. Furthermore, it should be noted that even statements that are true in isolation can present a false picture of reality if important parts of the events are omitted or distorted. Conversely, statements that are false in isolation can be corrected, lose their defamatory character, or have their defamatory impact mitigated by subsequent explanations. When dealing with expressions of opinion, the question is whether the requirement of objectivity, which obliges restraint and moderation, has been violated (cf. in general BVerfG, decision of 25.10.2005 – 1 BvR 1696/98 -, Juris Rn. 34; VG Regensburg, aa 0., Rn. 34 f.) and – in the case of statements in court proceedings – whether it constitutes defamatory criticism (so).
Measured against these principles, the statements about the "profiteering" and that the lawsuits were filed "without material interests of the plaintiffs" in order to "generate" legal fees constitute expressions of opinion in the form of defamation (a), and the statement that "the plaintiff himself ensured that the files were withdrawn from the county for several weeks" constitutes an untrue statement of fact (b).
a) In the Middle Ages, the term "Beutelschneider" (pouch-cutter) referred to a thief who cut off the money or alms purse attached to a belt, along with its contents. Today, the term is also used figuratively to describe a seller of overpriced goods or services (see Wikipedia). It is a derogatory term understood as exploitation, taking advantage, or swindling (www.duden.de). Whether the person is called a "Beutelschneider" or their behavior is described as "Beutelschneiderei" (pouch-cuttering) may make a linguistic difference, but not a semantically. The description of the behavior also makes a statement about the person. A person accused of "Beutelschneiderei" is accused of reprehensible, unlawful, and underhanded behavior. Labeling the behavior of a legal representative or lawyer as "Beutelschneiderei" is intended to devalue and defame their work. It therefore targets them as a person and in their professional practice. The lawyer is accused of being solely focused on his own advantage – namely, obtaining as many and as high fees as possible – without regard for the interests and concerns of his clients. The use of this term has nothing to do with a factual discussion of the obligation to bear costs in concluded social court proceedings. It therefore constitutes defamation of the plaintiff. The same applies to the statement that the (inaction) lawsuits were filed "without any material interest on the part of the plaintiffs" in order to "generate legal fees." With this, the defendant has once again defined and described the term "profiteering" in a generally understandable way in order to clearly identify what he considers to be the plaintiff's reprehensible conduct. The fact that the defendant's legal counsel confirmed and, in part, reinforced the use of the term "profiteering" in the press, and, going beyond the text of the plaintiff's press release, portrayed the conduct as if the plaintiff had acted purely out of greed, also constitutes a public statement. This therefore constitutes an unlawful official interference with the plaintiff's freedom to choose and practice his profession (Article 12 Paragraph 1 of the Basic Law) and with his general right of personality (Article 2 Paragraph 1 of the Basic Law) (see also the Higher Regional Court of Braunschweig, decision of October 27, 2010 – 2 W 129/10 –). This is all the more true since the plaintiff was merely exercising the rights afforded to his clients under Section 88 of the Social Court Act. It is solely the defendant's responsibility to decide on objections within three months. If this does not occur, the affected parties are entitled to file an action for failure to act pursuant to Section 88 of the Social Court Act. To describe the exercise of these rights as "profiteering" or to accuse the plaintiff of greed is therefore not only far from the point, but also shifts the responsibilities and constitutes a denigration of the plaintiff. The defendant's legal counsel must also be aware that awaiting a decision in preliminary injunction proceedings is not a sufficient reason to refrain from deciding on an objection within the meaning of Section 88 of the Social Court Act (SGG) (see Meyer-Gladewig/Keller/Leiterer, Commentary on the SGG, 9th edition 2008, Section 88, para. 7b). Furthermore, the plaintiff's alleged conduct, used to justify the "profiteering" accusation, did not even occur. The defendant's legal counsel wrongly and against his better judgment accused the plaintiff of having withheld the administrative files from processing for weeks (see below for details).
As a preventive measure to protect personal rights, the quasi-negatory injunction requires that there be a threat of unlawful infringement. A concrete risk of repetition exists. This requires a fact-based, objective, and serious concern about further disturbances at the time of the last oral hearing on the facts. Further identical or similar statements are to be feared, for example, if a cease-and-desist declaration is not issued and the statements already made are considered appropriate. Conversely, the repetition of a statement appears questionable if, based on the current state of knowledge, no situation is foreseeable in which reflections on the abstract issue can be expected, and the topic is not of current relevance (cf. Hamburg Administrative Court, Judgment of October 11, 2006 – 10 K 914/06 –, Juris para. 83 with further references). The defendant has not issued a cease-and-desist declaration and has not indicated that he will refrain from making the statement. He maintains his position that he is entitled to continue using the term "rip-off" to defend his legal position in a regular court proceeding and in the public debate. He reiterated this unequivocally during the oral hearing. Furthermore, before the Social Court of Hildesheim, he made it clear, with reference to the Administrative Court and the Public Prosecutor's Office, that there was nothing objectionable about the term "rip-off," even though the Administrative Court had expressly left this question open in its preliminary injunction of September 17, 2010, and the Public Prosecutor's Office had not yet concluded its investigation.
The conditions for an injunction are therefore met.
b) The defendant's legal counsel's assertion that the plaintiff "himself ensured that the county had access to the files for several weeks" in social security proceedings is a false statement of fact. The submission of relevant letters and excerpts from the plaintiff's law firm's outgoing mail log establishes that the defendant forwarded the administrative files to the plaintiff by letter dated January 13, 2010, which arrived at his office on January 18, 2010. The plaintiff then returned the files to the defendant on January 21, 2010, by letter dated January 20, 2010. The defendant no longer disputes this. To the extent that he claims his statements were meant to imply that the files were unavailable to him for processing for several weeks because they had to be submitted to the Social Court due to urgent applications filed by the plaintiff in the same matter, this does not justify his statements. The plaintiff's actual review of the files only lasted three days. If the files were not available to the defendant for processing due to their submission to the court, this is not the plaintiff's responsibility, but the defendant's own. By creating a temporary file, he would have been able to continue processing the case (see also the decision of the Hildesheim Social Court of September 20, 2010 – S 54 AS 744/10). Through his statements in the press, the defendant obscured this fact and wrongly attempted to shift responsibility to the plaintiff. The press statements leave no room for any other interpretation. They read: "...filed an action for failure to act in the case of the extended H. family, even though he himself ensured that the files were withheld from the district for several weeks through prior review of the files in his office and urgent applications to the court." In the oral proceedings, the defendant insisted on the accuracy of his statement and his interpretation. He expressly refused to sign a cease-and-desist declaration, so the necessary risk of repetition also exists.
The plaintiff therefore also has a right to an injunction in this respect.
3. The plaintiff is largely entitled to the public-law right of revocation asserted in claim no. 2.
The public-law right to retract a statement is also derived directly from the right to remedy the consequences of a statement, by analogy to Section 1004 of the German Civil Code (BGB). It requires that the statement whose retraction is sought be a defamatory assertion and that the resulting harm to the affected party continues to have an effect (see Minden Administrative Court, Judgment of November 3, 2003 – 3 K 1966/02 –, Juris para. 57). It aims to restore the situation that existed at the time of the infringement. As explained in section 2, these requirements are met here.
Since the defendant's statements were not disseminated via the defendant's "usual" press distribution list, but only in specific press organs, the right to retraction exists only against these press organs and against the plaintiff.
The decision on costs is based on §§ 154 para. 1, 161 para. 2 sentence 1 in conjunction with 155 para. 1 sentence 3 VwGO, because the plaintiff's defeat was minor and the defendant partially complied with the plaintiff's claim by submitting the (partial) cease and desist declaration.
The decision regarding provisional enforceability follows Section 167 of the Administrative Court Procedure Act (VwGO) in conjunction with Sections 708 No. 11 and 711 of the Code of Civil Procedure (ZPO). The plaintiff's action for revocation and injunctive relief is a performance action directed at administrative action, to which Section 167 Paragraph 2 VwGO is applicable according to the purpose of the provision – namely, that intervention in sovereign administration is permitted only with legally binding decisions. Accordingly, the enforcement order was limited to the decision on costs (see Lower Saxony Higher Administrative Court, Judgment of January 18, 2000 – 11 L 87/00 –, Juris para. 13).
The following is information on legal remedies.
