The right of reply in Germany

Germany has a statutory right of reply in the media. Maximilian Ruhenstroth-Bauer explains a path to defending your reputation without going to court.

The case

The right of reply is an attainment of the French Revolution and is based on the principle audiatur et altera pars – the right to be heard. It entitles people, who feel they have been unfairly portrayed or defamed by a media report, to have a response published by the same outlet. In Germany, the right of reply was first introduced in the state of Baden in 1831 and then through the Imperial Press Law of 1874 as a “demand for correction”. Though it is now recognised as a statutory concept in the German legal system stipulated through the Länder (federal states) press laws, the right of reply is also derived from the provisions of the Basic Law as press freedoms find their limits in the right to personal honour. To this effect, the right of reply – in addition to legislative options such as cease-and-desist declarations and rectifications – is not merely constitutionally permissible but required, even though it is not expressly mandated by the constitutional text. Under the German legal system, a positive obligation is imposed on the state to safeguard individuals against the media’s impact on their reputation and dignity.

The various press laws in the federal states, which display considerable similarity, regulate the rights and responsibilities of the press in accordance with the Basic Law. Rather than providing the public access to the media, the purpose of the right of reply as stipulated in the press laws is to protect individuals from false defamation. However, as opinions and subjective expression of value judgements are excluded from it, the right of reply in Germany is restricted to statements of fact. Any individual, association, company, public authority, whether German or foreign, can request to reply in the national media. The reply must not be defamatory and should not exceed the original statement in length. Typically, the press laws stipulate that it is to be published, free of charge, in the next possible issue of a publication, in the same section, and in the same type as the original statement. If an editor refuses the request, reply claims can be enforced through judicial injunction by a civil court.

Author opinion

While it constitutes a restriction on the media to exercise unconstrained editorial freedom, the right of reply, in this author’s view, is an important element of free speech, as it enables individuals to challenge untruthful statements directly, promptly, fairly and effectively. It offers a pragmatic remedy to reputational injury and ultimately helps to ensure a diversity of opinions. The right of reply under German law does not impinge unreasonably or unjustly on the freedom of opinion and expression or on the functions of a free press, since it protects the right to personality and privacy, guaranteed under the Basic Law, only when stories are proven false, intrusive or slanderous.

The value derived from protecting the defamed overrides the interest of unconstrained editorial freedom. Democratic governments can provide parallel guarantees of freedom of the press while protecting individuals against press-related dangers to their human dignity. Being able to respond in one’s own words to reputational slurs should be one of the available options in other countries and contexts too.

- Maximilian Ruhenstroth-Bauer

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford.

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