Concept and significance of the proof of truth
The proof of truth is a central concept in German law, especially in the context of expression law, press law, criminal law, and civil law. It refers to the possibility of substantiating the truth of a factual assertion by means of evidence. Providing or lacking the proof of truth can have significant legal consequences and is decisive for the admissibility of various statements as well as for assessing potential legal violations.
Distinction: Factual assertion and value judgment
Legally, a distinction is made between factual assertions and value judgments (expressions of opinion). The proof of truth applies exclusively to factual assertions. A fact is an incident or condition from the past or present that is capable of being proven and therefore can be objectively established. Value judgments, on the other hand, are characterized by a subjective element of assessment or opinion formation and are thus generally not subject to proof of truth.
Proof of truth in civil law
Importance in expression law
Within civil law, and particularly in expression law, the proof of truth plays a prominent role. Anyone making a factual assertion that may impair the reputation of a person may, in principle, be liable for damages, retraction, or injunctive relief if the assertion is untrue and unlawful.
By providing proof of truth, the person making the assertion can exonerate themselves: If it can be substantiated that the assertion is true, the unlawfulness of the statement regularly ceases to exist under § 823(1) BGB and §§ 1004, 823 BGB with respect to personality and reputation protection. In the absence of proof of truth, the personal rights of the affected party usually prevail.
Burden of proof
In civil proceedings, the general rule is that the person relying on a fact—such as the truth of a disputed assertion—bears the burden of proof. This rule is particularly applied in disputes regarding defamatory factual assertions. This means: Whoever claims that a statement is true must also prove it in court.
Means of evidence
Means of evidence for the proof of truth include, in particular, witnesses, documents, visual inspections, and expert reports. The decisive factor is the formation of the court’s conviction (§ 286 ZPO). The evidence must convince the court in its entirety; mere plausibility is generally insufficient.
Proof of truth in press law
Relevance in reporting
In press law, the proof of truth is a central instrument for balancing freedom of opinion and the press, on the one hand, and the protection of personal rights on the other. In cases of disputed factual assertions by the media, press law requires proof of the truth of published statements if necessary as part of press liability.
Requirements and limits
If proof of truth cannot be provided, a counterstatement, retraction, or injunctive relief may be demanded. In special cases, such as reporting on suspicion, the reporter is permitted to report legally correct information if a minimum basis of factual evidence is present and careful research was conducted. However, for knowingly false or unprovable statements of fact, civil and potentially criminal consequences may ensue.
Proof of truth in criminal law
Offenses against honor and burden of proof
In criminal law, the proof of truth is particularly relevant in cases of offenses against honor—such as insult (§ 185 StGB), defamation (§ 186 StGB), and slander (§ 187 StGB). In the case of a charge of defamation, the accused can avoid liability by providing proof of truth for their factual assertion (§ 186 sentence 2 StGB). In the case of slander under § 187 StGB, even successful proof of truth does not always exempt one from punishment, as what matters here is the offender’s knowledge of the untruth.
Procedure and consequences
If the court concludes that proof of truth has been provided, there is no liability in the case of defamation. If the proof fails, the assertion is presumed untrue, so liability regularly follows.
Practical significance and legal limits
Personal rights and freedom of expression
The enforceability of the proof of truth is limited not only by rules of evidence but also by the tension between general personal rights (Art. 1(1), Art. 2(1) GG) and freedom of expression (Art. 5(1) GG). In judicial practice, the admissibility of factual statements is often assessed by balancing competing interests, where the truthfulness is of central importance.
Inadmissibility in cases of abusive criticism
In so-called abusive criticism or knowingly false factual assertions, freedom of expression is usually restricted. For the latter, the proof of truth is excluded from the outset, as the untruth is established.
Summary
Proof of truth plays a crucial role in German law when assessing factual assertions—in civil and criminal law as well as in press law. On one hand, it protects personal rights from false statements, while on the other, it also secures the freedom of opinion and expression when the truthfulness of a statement can be proven. The burden of proof and the possibilities for providing proof of truth are of decisive importance for judicial assessment and the legal consequences of a statement.
References
- BGH, Judgment of 23.04.1987 – I ZR 71/85
- Palandt, German Civil Code, current edition, § 823 BGB
- BeckOK StGB, §§ 186, 187
- Schertz, Legal Protection against the Media, 3rd edition
- Ehlers/Schoch, Fundamental Rights, Commentary on Art. 5 GG
Frequently asked questions
How is proof of truth provided in civil proceedings?
In civil proceedings, proof of truth is generally provided pursuant to the provisions of §§ 284 ff. ZPO (Code of Civil Procedure). A party making a factual assertion must prove it in contentious cases if the opposing side contests the assertion. Means of evidence include, among others, witnesses, documents, experts, visual inspection, and party examination. For successful proof of truth, it is necessary that the party presents substantiated facts and corroborates their accuracy with one of the recognized means of evidence. The burden of proof is determined by the relevant substantive legal provisions; as a rule, it applies to the party seeking to derive rights from a fact. In the context of proof of truth, the court is obliged to consider all evidence presented, applying the principle of judicial discretion in evaluating evidence (§ 286 ZPO). Proof of truth is considered successful if the court is convinced of the truth of the asserted facts.
What is the significance of proof of truth in criminal law?
In criminal law, proof of truth plays a particularly important role in connection with factual assertions, for example, when deciding on offenses of expression such as insult (§ 185 StGB) or defamation (§ 186 StGB). Anyone making an allegedly defamatory assertion can exonerate themselves by proving its truth (§ 193 StGB). In defamation cases, proof of truth necessarily precludes criminal liability. In proceedings, the defendant is not required to produce evidence but will often have a personal interest in establishing the truth. In criminal proceedings, the court must investigate the facts ex officio (§ 244(2) StPO, principle of investigation), so judicial review is comprehensive. The proof of truth must convince the court fully.
Who bears the burden of proof in the proof of truth?
The burden of proof in the proof of truth depends on the particular area of law and the content of the disputed assertion. In civil law, the party relying on the truth of the assertion or seeking to derive claims from it, for example, a defendant justifying a defamatory statement, generally bears the burden of proof. In media and expression law, the spreader of the disputed assertion holds the burden once the untruth is alleged. In criminal law, the party relying on proof of truth (typically the defendant) has no formal burden of proof but can avoid liability through convincing arguments. Ultimately, the court decides based on the standard of proof and the evidence presented.
Which means of evidence are admissible for proof of truth?
For the proof of truth in civil proceedings, all objectively suitable and legally permitted means of evidence may be used, including witnesses, documents, visual inspection, expert reports, and party examination. In criminal proceedings, confessions and the accused’s own testimony are also available as special means. The choice of evidence depends on the assertion and its provability. It is not permissible to use evidence that has been obtained in violation of legal protection provisions, such as personal rights (exclusion of evidence). Successful evidence regularly requires the persuasive power of the evidence in relation to the concrete fact asserted.
How does proof of truth differ from plausibility?
Proof of truth requires full proof of the asserted fact, meaning that the court must be convinced of its truth (§ 286 ZPO). Plausibility only requires a lesser degree of probability; the court does not have to be convinced—predominant probability is sufficient (§ 294 ZPO). Proof of truth is particularly required when legal consequences such as claims for damages or the retraction of a defamatory statement depend on it. Plausibility mainly applies in preliminary injunction or security proceedings.
What are the consequences of a failed proof of truth?
If proof of truth fails, the legal consequences vary depending on the context. In civil law, this may mean that claims for injunctive relief or retraction against the declarant are successful if the untruth of the assertion cannot be refuted. In criminal law, such as in defamation cases, the absence of proof of truth is a prerequisite for criminal liability (§ 186 StGB). The procedural consequence is that the court decides against the party bearing the burden of proof—in civil proceedings, a legal deficiency arises, and in criminal proceedings, a conviction may result. Thus, proof of truth is of great significance for the enforcement or defense of claims.
Are there exceptions to the right of proof of truth?
In certain cases, the right to proof of truth may be limited, for instance, when individual development or the data protection of third parties is affected. Moreover, evidence unlawfully obtained (e.g., secret recordings, violation of personal rights) is not always admissible in proceedings. In the realm of expressions of opinion, proof of truth is not possible for pure value judgments, as these are by nature not provable. In privileged communication settings—such as attorney-client communication under legal privilege—proof of truth may be excluded due to rights to refuse testimony.
