German Court negates injunctive relief concerning research work

Written by Tobias Raab* and originally published by ECPMF.EU

In its judgement of 13 October 2015, the Higher Regional Court of Hamburg (Oberlandesgericht Hamburg) decided that an injunctive relief concerning research work can only be granted within very narrow bounds (Case 7 U 4/12).

In the present case, there had been a conflict between a tenant and the manager of his apartment. In front of the recording camera, the tenant accused the manager of breaking into his apartment and causing a water damage in order to make him clear the apartment. Then, the camera team filmed the manager who made clear that he did not agree to the recording of the film footage. The team then stopped recording and explained to the manager that the footage might be broadcast on the very same day. After a written warning by the manager the broadcaster made clear that he had no intension to broadcast the footage anytime soon.

Nonetheless the manager sought an interim injunction. The Court of first instance, the Regional Court of Hamburg (Landgericht Hamburg) issued the injunction. The Higher Regional Court, however, annulled the decision, stating that preventive legal protection such as an interim injunction required a risk of perpetration for the first time. As the footage had only been shot and there had not been any decision at all made on if and how it was going to be used, the Court could not see any risk of perpetration yet. Even if the broadcaster would have planned to use the footage as part of his TV program, this would not automatically mean that the manager's rights were going to be violated. In this case, for example his rights could be protected by making him unrecognizable or by presenting the tenant’s statement as untrue.

Even though the manager did have a considerable interest in preventing the coverage, this interest did not outweigh the broadcaster's freedom of press, which also includes research work and collecting of information and footage. If journalists already had to be afraid of injunctive relieves just because of their research work, they would not be able to fulfil their function as watchdog anymore. The Higher Regional Court also stated that the sought interim injunction could only be justified in cases where the footage will be used to violate the appellant’s rights with a probability bordering on certainty.

*Tobias Raab works as a freelancer at the Institute of European Media Law (EMR), Saarbrücken/Brussels.