of a newspaper published by the general student committee of a university in Hesse, which reported on so-called "pick-up artists".
"Pick-up artists", according to the first of the two articles attacked, are "men* who belong to the scene of the same name. The scene is divided into so-called 'gurus' and 'followers'. The 'gurus' promise the 'followers' to help them gain more self-confidence and strengthen their own 'ego' in seminars and workshops. This is supposed to happen so that the seminar attendees* are able to approach women* and ultimately get them into bed". The plaintiff was an active member of this scene at the time of publication. He had already demonstrated his "art" in television appearances and worked part-time as a trainer at pick-up seminars. In addition, at the time of publication he was a student at the university, whose AStA reported on the phenomenon as such and, among other things, on the plaintiff.
The BGH ruled that the dispute was a matter of public law. The AStA newspaper is operated by the student body. As such, the student body is a corporation under public law with legal capacity. The articles in dispute were published in the performance of sovereign duties and thus part of the state's information trade(BGH judgment of 08.11.22 - VI ZR 65/21, para. 14). As a result, the claim was not based on a civil law claim, but on a public law claim for injunctive relief against the university's constituted student body.
The prerequisite for a claim under public law to cease and desist a statement is
- an unlawful interference by a public authority with legal positions protected by fundamental rights or other subjective rights of the person concerned
- and a concrete risk of repetition.
The requirement of a legal or constitutionally incontrovertible basis initially applies to lawful, state information activities. Where the boundaries of permissible statements are to be drawn depends further on the circumstances of the individual case. Case law has clarified that official statements must be guided by the general principles of constitutional conduct in the form of the prohibition of arbitrariness and the principle of proportionality. It can be derived from the prohibition of arbitrariness that value judgments must not be based on extraneous considerations, i.e. in a reasonable assessment, they must be based on an essentially correct or at least properly and reasonably assessed factual core and must not exceed the objectively required framework(BGH judgment of 08.11.2022 - VI ZR 65/21 -, para. 18; on the requirement of objectivity BGH judgment of 02.07.2019 - VI ZR 494/17, AfP 2019, 434 para. 21).
The challenged text reporting was therefore not objectionable. The BGH affirms the existence of an infringement of the plaintiff's general right of personality. The statements at issue had an indirect factual effect on the person concerned in that they were capable of influencing the plaintiff's social prestige and professional honor and had a negative impact on the plaintiff's public reputation(BGH judgment of 08.11.22 - VI ZR 65/21 para. 21 f.).
However, the court denies the unlawfulness of this encroachment on the protected area, as there is a justifiable reason. In the sense of "building bridges", the student body is also permitted to comment on general political and social issues as long as the connection to study and university policy issues remains clearly recognizable(BGH judgment of 08.11.2022 - VI ZR 65/21 -, para. 31). Although such authorization to provide information does not fall under the task of promoting political education assigned to the student body, it is included in the competence to represent the economic and social interests of students.
The fact that this was not a constructed "bridge-building" between the specifically university-related social concerns of the students of the university in question and the phenomenon of the "pick-up scene" is evident from the fact that, according to the findings of the court of appeal, there had been several incidents of assaultive behavior at the university in question at the time of publication(BGH judgment of 08.11.2022 - VI ZR 65/21 -, para. 33).
The interference with the plaintiff's general right of personality in the verbal report was also proportionate. In particular, the plaintiff's constitutionally protected interest in not seeing his own person portrayed in public, in his social standing and his professional honor, was offset by the considerable public interest in informing students about the effects of the "pick-up phenomenon". The balance to be struck between these opposing interests ultimately led to the public interest in identifying reporting prevailing(BGH, judgment of 8 November 2022 - VI ZR 65/21 -, para. 35). It had to be taken into account that the plaintiff had also made himself the subject of interest of the university public through his own "self-opening" by, among other things, participating in a television report lasting several minutes in which he explained the pick-up scene and gave an interview. In addition, the plaintiff had to accept a - also critical - public examination of his work in the area of his social sphere, in which his part-time activity as a "pick-up coach", his associated appearance on the agency's homepage and his participation in the aforementioned television report are to be located, to a greater extent than would be the case with contributions about his purely private flirting behavior(BGH, judgment of 08.11.2022 - VI ZR 65/21 -, para. 36; cf. BVerfGE 152, 216 para. 128).
Statements by public authorities as part of the state's information activities - even in cases in which the sovereign relationship, as in the case of the AStA magazine, is not immediately apparent to the courts and therefore, as in the present case, civil law proceedings are taken - are regularly assigned to public law.
Do you have questions in connection with statements made by public authorities? Please do not hesitate to contact us.
Charlotte Gaschke Lilly Dankert