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In its judgement of 19 December 2024 (Ref.: 26 O 12612/23), the Regional Court (LG) Munich I largely agrees with Arne Schönbohm. He had objected to several statements that appeared in an edition of the satirical programme ZDF Magazin Royal in 2022. As a result, according to the court, four of the five statements in dispute were ambiguous, untrue statements of fact, which the court prohibited ZDF from disseminating. However, the plaintiff was not awarded the requested monetary compensation.

A. Original ZDF Magazin Royal programme

The legal dispute began on television. In a 2022 edition of the satirical magazine programme ZDF Magazin Royal, Böhmermann made Schönbohm the subject of a programme. The presenter had raised the question of whether the former head of the Federal Ministry for Information Security (BSI) could be said to be close to Russian actors and therefore posed a security risk.

In the programme, Böhmermann gradually deciphered the basis of the accusation against Schönbohm. Before becoming BSI President, Schönbohm was the head and founder of the Cybersecurity Council e.V., a lobby organisation that can only be distinguished from the council of the same name under the umbrella of the BSI itself by the suffix “e.V.”. A member of the association is the company Protelion GmbH, which develops security software for the mobile phones of members of the government, among other things. According to Böhmermann’s research, this is a subsidiary of the Russian company Infotecs, whose founder is a former member of the KGB and which co-operates with the Russian secret service.

Schönbohm stepped down as head of the organisation in 2016 and was succeeded by Hans-Wilhelm Dünn, who openly admitted to having contacts with Russian intelligence circles in an interview with Rundfunk Berlin-Brandenburg (rbb) shortly afterwards. The BSI responded to Böhmermann with the statement that Schönbohm had “not consciously” cultivated such contacts during his leadership of the organisation. Together with this statement, Böhmermann published a social media post in the programme that showed Schönbohm together with the Cybersecurity Council and Protelion.

Reaction from the Federal Ministry of the Interior

Shortly after the programme was broadcast, Federal Minister of the Interior Nancy Faeser banned Schönbohm from conducting official business and transferred him. Her reasoning: the public’s trust in the office of BSI President had been damaged. Research by the ministry into whether the accusations against Schönbohm were actually justified in the matter only began after his transfer. Schönbohm himself had provided the impetus, filed a complaint against the ban on official business and thus initiated disciplinary proceedings.

An action for damages is pending before the Cologne Administrative Court in which Schönbohm is criticising his employer’s breach of duty of care due to bullying. After his transfer, Schönbohm was subsequently appointed President of the Federal Academy of Public Administration and also appointed Special Representative for the Modernisation of the Federal Government’s Training Landscape, while retaining his previous salary.

B. The decision of the Munich Regional Court

The action was brought before the Munich Regional Court against ZDF, which is editorially responsible for the programme ZDF Magazin Royale. At the heart of the legal dispute was the question of whether individual statements in the ZDF programme did not meet the requirements of due diligence under press law and whether the broadcaster could therefore be obliged to cease and desist and pay monetary compensation. The court had to differentiate between inadmissible untrue statements of fact and statements that are protected by freedom of opinion under Article 5 of the German Basic Law (GG).

  1. Untrue statements of fact?

The first issue was the accusation made in the programme that Arne Schönbohm was in contact with intelligence services from Russia. According to Schönbohm, the impression of such deliberate contact was created by the programme. Specifically, Böhmermann said in his programme: “During his time as president of the association ‘Cyber-Sicherheitsrat Deutschland e.V.’, Mr Schönbohm was not consciously in contact with intelligence services from Russia or other countries. Clearly not consciously, how else? Unconsciously, or what?” and then “And second question for you: Floppy the disc clown, if you are not aware of your contacts with the Russian intelligence service, why are your wise association co-founders so aware of these contacts?”

The following statements were also published on the ZDF website: “Schönbohm is being criticised for possible contacts with Russian intelligence circles via the controversial association ‘Cyber Security Council Germany'” and “He is said to have had contacts with Russian intelligence circles”. The Munich Regional Court denied that the statements were purely untrue factual allegations that are accessible as evidence.

However, the court did find that the article contained ambiguous factual claims, which the court had to weigh up against the former BSI President’s general right of personality. As a result, the violation of personal rights outweighed the offence against Schönbohm. According to the court, the questions posed by Böhmermann were not open-ended questions characterised by elements of opinion and statement. Rather, the moderator had insisted that Schönbohm had deliberately cultivated such contacts, although the BSI had ruled out deliberate contacts in its response. Böhmermann’s question sentence “How else…?” was in essence an untrue statement of fact.

In any case, such an interpretation was not far-fetched. The understanding of an unbiased average public is always decisive when differentiating between statements of opinion and statements of fact. The Munich Regional Court also argued in this way with the media reception of the programme – various newspapers had reported on Schönbohm’s “deliberate contacts”.

  1. An expression of opinion remains an expression of opinion

With regard to the fifth statement in question, “Danger to cyber security from the head of cyber security”, the Regional Court ruled that it was still an acceptable expression of opinion. The regional court also rejected Schönbohm’s request for compensation in the amount of €100,000. Not only was monetary compensation not an option in the case of ambiguous statements. Schönbohm had also failed to defend himself against the statements at an earlier stage – for example through a timely claim for injunctive relief or a claim for correction in a follow-up programme of ZDF Magazin Royal. Instead, Schönbohm waited a whole 11 months to file a lawsuit. Monetary compensation is only available as a last resort after all other defence options have been exhausted.

Schönbohm is now considering an appeal. Nothing is yet known about ZDF’s intentions.

Conclusion

The Munich Regional Court has shown a firm hand. The categorisation of Böhmermann’s statements on Schönbohm’s alleged contacts with Russian secret services could have been different with good arguments. After all, the impression that this gave to unbiased addressees was not compelling from every perspective. This is particularly true in view of the special role that ZDF Magazin Royale plays on public television. Regular viewers are likely to be familiar with the borderline between permissible freedom of satire and unauthorised expression of opinion, which Böhmermann attempts anew every week.

However, it is all the more important that these boundaries are only strained and not exceeded. The satirical programme records high viewing figures every week and has a large audience that places a lot of trust in the results of the investigative research. This unique selling point of ZDF Magazin Royal must remain legitimised and stand up to independent scrutiny. A scratch in the paintwork of the programme’s image can perhaps help to ensure that the truthfulness of the sometimes reputation-threatening programme content is scrutinised more closely.