Press Law and Freedom
of Expression
As a conveyor of information, the press – similar to broadcasting – exerts a significant influence on the formation of public opinion and political processes. As the “fourth estate,” it enjoys extensive constitutional privileges in our democratic society. Freedom of the press protects all essential phases of reporting, from the confidential gathering of information to the dissemination of content. However, this freedom is counterbalanced by special obligations, above all the journalistic duty of care (publizistische Sorgfaltspflicht). Furthermore, any reporting requires a careful balancing act between the public’s interest in information and the affected rights of third parties.
The legal framework of press law is primarily defined by the state press laws (Landespressegesetze) and finds its constitutional basis in the freedom of the press and freedom of expression under Article 5 of the German constitution (Grundgesetz, GG). Supplementarily, sector-specific regulations such as the Interstate Media Treaty (MStV) apply. This statutory framework is further specified by instruments of co-regulation and self-regulation, in particular the Press Code of the German Press Council (Deutscher Presserat). The guiding principle here is: Anyone who publishes online is subject to essentially the same legal requirements as traditional media.
Legal issues in press law and the right of expression operate almost exclusively within a sensitive area of tension: Freedom of the press and freedom of expression on the one hand, and the general right of personality of the individual (Art. 1 (1), Art. 2 (1) GG) on the other, must constantly be reconciled and brought into balance.
Due to its special status, the press is granted specific rights, which include, for example, the right to information under press law as well as the right to refuse to testify, which serves to protect informants. A unique feature is the so-called media privilege established in the GDPR, according to which certain data protection regulations are exempted under strict conditions for the journalistic and editorial processing of personal data.
Furthermore, the aforementioned regulatory framework gives rise to specific obligations, such as the journalistic duty of care, which requires that all news items be verified for authenticity and critically scrutinized prior to publication. These also include the obligation to provide an imprint (legal notice), the obligation to publish counterstatements (rights of reply), and the obligation to label advertising.
The European Media Freedom Act (EU) 2024/1083 (EMFA), which aims to protect media pluralism and independence in the EU, regulates, among other things, the protection of editorial independence and journalistic sources, the safeguarding of the independent operation of public service media, and the improvement of transparency regarding media ownership structures.
Freedom of the press and freedom of expression find their limits primarily in the general right of personality of the party affected by the reporting. The affected parties can be both natural persons and companies. The latter are increasingly finding themselves at the center of negative headlines, which can result in reputational damage and thus significant economic consequences. This makes taking legal action as early as possible a necessity. A swift and targeted response is essential, particularly in the realm of digital reporting.
Press law provides answers to numerous questions in connection with public statements. Actionable offenses include, for example, false statements of fact or abusive criticism (Schmähkritik). The forms of potential rights violations can be complex in this regard: the affected party is entitled to various claims against the infringing party, which include, for example, claims for injunctive relief, counterstatements (right of reply), compensation for non-material damages, or pecuniary damages.
However, photo and video recordings from the public or private spheres are also omnipresent in the era of social media – often without the consent or against the will of those affected. For instance, images of persons are used for advertising purposes or otherwise commercially exploited by third parties. So-called visual reporting (Bildberichterstattung) is also an essential part of press law. The general right of personality gives rise to the principle that everyone has the right to decide for themselves whether their image is distributed. Exceptions apply, for example, to events of contemporary history, public assemblies, or when a person appears in an image merely as an incidental detail (Beiwerk).
In principle, the respective author or editor is responsible for their piece. However, the reporting company can also be held liable for its own content (including content it adopts as its own) and for disseminated third-party content. This so-called disseminator liability (Verbreiterhaftung) always requires breach of a duty of supervision, however. The media outlet can be subject to claims for injunctive relief and, under certain circumstances, can be held liable both under criminal law for defamation (Üble Nachrede) and under civil law for impairment of creditworthiness (Kreditgefährdung).
The Artificial Intelligence Act (EU) 2024/1689 (AI Act) also intervenes in press law via specific transparency obligations. While the regulation emphasizes the protection of freedom of expression and freedom of the press, it sets clear guardrails for deepfakes and, above all, the handling of AI-generated texts: For publishers, editorial offices, or online publishers, it is therefore crucial that a text generated or manipulated by an AI system, which is published for informational purposes on matters of public interest, is also labeled as artificially generated or manipulated. This applies, for example, to automated sports match reports or stock market news.
However, this obligation notably does not apply if the AI-generated text has undergone human review or editorial control, and a natural or legal person assumes editorial responsibility for the publication of the content.
For deepfakes, the operator’s labeling obligations are described in Art. 50 Para. 4 of the AI Act apply equally to the press: If image, audio, or video content created using an AI system is used that bears a resemblance to existing persons, objects, or events and could falsely appear to be authentic (deepfakes), it must be labeled as such. In this regard, there are mitigated labeling obligations for all operators who create evidently artistic, creative, or satirical content.
We advise you comprehensively on all matters concerning the right of expression – from the legal review of your individual media presence to safeguarding your reporting. In media crisis situations, we also develop tailor-made concepts for crisis communication to sustainably protect your reputation.
Both out of court and in court, we take decisive action against untrue or disparaging statements made by third parties. We consistently enforce your claims for injunctive relief, damages, or counterstatements (right of reply), and effectively fend off unjustified claims against you.
For many years, we have represented companies from various industries, cities and municipalities, as well as private individuals in matters concerning the right of expression and the right to one’s own image.
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