Counterstatement: Legal Foundations and Practice
The counterstatement is a legally established means of safeguarding personal rights in media and press law. It allows individuals affected by a statement of fact to publish their own account in the same medium, thereby responding directly to the reporting. The right to a counterstatement is enshrined in numerous national regulations as well as in state press laws.
Definition and Purpose of the Counterstatement
The counterstatement refers to the legal instrument through which a person or organization, about whom factual assertions have been published in the press or another medium, can demand to publish their own statement in the same manner and in the same place. The aim is to correct information or present one’s own point of view, without exceeding mere correction or expressing value judgments.
Legal Foundations
State Press Laws
The regulations governing the right to a counterstatement are found primarily in the respective state press laws of the federal states. These provisions are largely harmonized in content, though some differences exist in procedure and scope of application.
Broadcasting State Treaties and Telemedia Act
For electronic media, the right to a counterstatement is regulated under the State Media Treaty (§ 19 MStV). Online media and telemedia providers are likewise required, under certain conditions, to publish counterstatements.
German Civil Code (BGB) and General Personal Rights
The right to a counterstatement is closely linked with the general right of personality under Article 2(1) in conjunction with Article 1(1) of the Basic Law (GG). The defense against false statements of fact is a central element in the protection of personal honor and privacy.
Requirements for the Counterstatement
Statement of Fact
The right to a counterstatement requires that the challenged statement is a statement of fact. Expressions of opinion and value judgments do not establish a right to a counterstatement.
Affectedness
The applicant must be directly affected by the published assertion. The counterstatement can be asserted both by individuals and by legal entities such as companies or associations.
Form and Deadline
The counterstatement must be submitted in writing and must be clearly identified as such. The deadline for submission varies, but is generally a maximum of three months from the time the publication becomes known.
No Obvious Abuse of Rights
The right to a counterstatement lapses if the representation is obviously untrue or the request is made in abuse of rights.
Content and Formal Requirements
Scope and Wording
The counterstatement must be limited to the facts of the original statement. It must not contain insults, defamatory criticism, or value judgments and must be phrased in a factual tone.
Publication
The counterstatement must be published in the same part of the medium and in a comparable manner as the original statement. For print media, text length and placement must be modeled on the original publication. In broadcasting or online reporting, publication in a comparable location is required.
Procedure of the Counterstatement Process
Submission of the Application
The affected person or institution requests the medium in writing to publish the counterstatement. The counterstatement must be enclosed and signed.
Review and Implementation
The medium examines the formal and substantive requirements and publishes the counterstatement promptly, provided there are no grounds for rejection.
Rejection and Enforcement by Court
If the medium rejects the publication of the counterstatement, it is possible to enforce the claim by way of a preliminary injunction before the competent civil courts. The procedure usually takes place in summary proceedings in order to preserve the purpose of the counterstatement—an immediate response.
Costs and Legal Consequences
The costs for publishing the counterstatement are generally borne by the medium. The publication of the counterstatement itself does not affect any existing claims for injunction or damages, which can be asserted independently.
Special Aspects in Digital Media
With advancing digitalization, the right to counterstatement has also become relevant for online media, news portals, and social networks. Key factors here are the principles of placement, visibility, and duration of publication, which must be adapted to the respective medium. Media law regulations take this change into account through specific provisions in the State Media Treaty.
Relationship to Other Press Law Claims
Claim for Injunction
A claim for a counterstatement does not exclude a claim for injunction. Both instruments serve to protect personal honor and can be asserted in parallel or in addition.
Retraction and Correction
In addition to the counterstatement, the affected party may have claims for retraction or correction of an inaccurate factual statement. These usually go further, as they require factual correction of the original reporting.
Importance in the International Context
The right to a counterstatement exists not only in Germany, but also in other European countries and in international documents such as the European Convention on Human Rights. The aim of these regulations is to balance freedom of expression with protection of personality.
Summary
The right to a counterstatement constitutes a central instrument in press law, enabling those affected to respond immediately and effectively to statements of fact. It is characterized by specific legal requirements, formal criteria, and a rapid procedure. Especially in today’s media landscape, the right to a counterstatement is becoming increasingly important in view of the rapid spread of news.
Frequently Asked Questions
When is there a legal right to the publication of a counterstatement?
A legal right to the publication of a counterstatement arises under the state press laws and the corresponding regulations in the Broadcasting State Treaty if personal rights, in particular the general right of personality, are affected by a statement of fact in a medium. The prerequisite is that a statement has been made about a specific person or at least a clearly defined group, which is objectively verifiable and capable of impairing the reputation or rights of that person. The counterstatement must refer to facts, not value judgments, and must be requested in writing within a specified period after the original contribution becomes known. The claim exists regardless of whether the original report was true or false; the decisive factor is that the affected person can state their perspective in the same medium.
What formal requirements must a counterstatement fulfill?
An effective counterstatement is subject to strict formal requirements: it must be submitted in writing to the press organ, usually be personally signed, and may only refer to actual statements of the original article. The counterstatement must be submitted by the affected person themselves or, if a representative is authorized, a written power of attorney must be attached. The text must generally not exceed the length of the original statement and must clearly indicate to which publication and which specific statements it refers. Counterstatements are inadmissible if their content is obviously untrue or criminal, or if third-party rights would be violated by their publication.
Are there deadlines that must be observed when asserting a counterstatement?
Yes, the state press laws and broadcasting laws provide for short exclusion periods for asserting a counterstatement, which usually depend on the publication date of the contested statement of fact. In most federal states, the deadline is two to three months from knowledge of the report. After this deadline, the right to publication can generally no longer be enforced. The purpose of these short deadlines is to ensure the topicality of the counterstatement; therefore, an affected person should promptly consider whether and how to assert a counterstatement.
How is a counterstatement published and in what form?
The counterstatement must be published in the next issue scheduled for print, broadcast, or online release, in immediate connection with the challenged original notice, and in comparable presentation. This means font size, placement, and other design elements must, as far as technically possible, follow the original representation. For online media, the counterstatement is usually placed directly with the original article or on an easily accessible, dedicated counterstatement page, with a clear reference to the original article. Publication must generally take place unedited and in full; editorial comments or cuts are not permitted.
Can a medium refuse to publish a counterstatement?
A medium may refuse to publish a counterstatement only in strictly limited exceptional cases, such as when formal requirements are not met, the counterstatement is obviously untrue, contains criminal content, or would violate third-party rights. It can also be rejected if it exceeds the scope of the original report or is manifestly misused, for example for advertising purposes. In all other cases, the medium is legally obliged to publish the counterstatement at its own cost.
What legal protection is available if the medium refuses to publish the counterstatement?
If a medium refuses to publish a justified counterstatement, the affected party can file for publication via preliminary legal protection, that is, using expedited proceedings before the competent civil court. As this is a press law claim, courts decide quickly, usually within a few days or weeks, since topicality and the right to prompt correction are paramount. If the applicant prevails, the medium is ordered by the court to publish the counterstatement. In individual cases, there may also be a claim for damages, for example, if there is a delay or failure to publish.
