Where is it easiest to obtain subpoenas under press law??
A blogger, who for years has been investigating the goings-on of cults, etc. had extensive experience with interim injunctions by the Hamburg Regional Court, which, thanks to its flying jurisdiction, considers itself competent throughout Germany. Last year, the annoyed blogger turned the tables and took even a hard-naked Abmahner on Unterlang in claim. At the same time, he used this opportunity for an experiment in which he tested four courts with an identical application, thus forming a peer group to the judges in Hamburg. Elsewhere a press-legal Unterlangsverfugung was to be had also so cheaply?
The blogger, whom u.a. The lawyers of the Jehovah’s Witnesses, who had already been bothered by the new law, received plenty of mail from Hamburg again in 2010. An anthroposophically oriented leader of a therapeutic community, where drug addicts were to be rehabilitated under strange circumstances, worried about the reputation of his person and his institution. As it was to turn out later, the plaintiff warning turned to the 100.000, – € his actually public-spirited employer for appropriate court and legal fees to prohibit former patients and their supporters allegedly untrue reports about the conditions in the facility. The therapist had turned down offers of talks.
Temporary injunctions against unpopular reports can be easily obtained by specialized lawyers, because usually the opponent is not heard before the injunction is ied, and the burden of proof is reversed in the law of appeals. Whoever asserts facts or, in the opinion of a person concerned, has implied them, must be able to make this or the preconditions of a corresponding impression credible in court and ultimately prove it, even if he did not intend to imply anything false at all. All a warning party has to do is present the allegations and dispute their accuracy, and he will receive a ready-made injunction without the sender even knowing about the proceedings and being able to defend himself. Once such a ruling based on a one-sided presentation has been ied, the Hamburg judges in particular find it extremely difficult to revise their decision, which was ied on a questionable basis. Insolence wins. The exercise of freedom of opinion, which is actually guaranteed by the Basic Law, is sometimes confronted with sometimes insurmountable difficulties, but in any case it costs time, money and nerves that only very few private citizens can muster. Freedom of speech and freedom of the press are therefore mainly a question of money.
In the present case, some legal attacks by the sensitive therapist could finally be fended off in the long haul. Even the Hamburg press chamber, which is regarded as sharp, had probably had enough of the admonisher’s troublemaking. Thus the ill therapist resorted now even to the Bloggen and scattered disinformation on the Website of its mechanism. The warning letter claimed that the courts had confirmed his positions, which was no longer the case. In addition, he jerked the unnamed blogger in the vicinity of significant crimes. Since it became even the Blogger – which is actually a long-suffering activist for freedom of opinion – slowly too colorful and he loved at the beginning of 2011 now for his part the Abmahner anwaltlich warning.
After the therapist ignored the warnings, the Blogger used the situation to an experiment, in order to test the practice of the courts, which are reputed among Presserechtlern as opinion-hostile. Due to the flying jurisdiction, applications for injunctions against unlawful speech on the Internet can be filed in practically any court with an Internet connection – whereby tactically gifted lawyers naturally favor courts where the judges attach only secondary importance to freedom of speech.
A procedural peculiarity of interim legal protection is that, in contrast to a conventional lawsuit, corresponding interim applications can be pursued at several courts in succession and even in parallel, if certain tricks are observed. In the present case, the applications were even made conditionally in the form of legal aid applications which, in the event of rejection, do not even give rise to legal costs. In order to avoid the abuse objection, two different litigants were initially used, namely the actual opponent personally, as well as the non-profit organization which was responsible for the website (intermediary).
The first airplane attack took place at the Regional Court of Munich. There, the professionally advised opponent had already taken precautions and deposited a so-called protective writ, which his lawyer had faxed as a precaution to several courts, where he expected air raids. However, this action was allowed to have played a subordinate role. The Regional Court of Munich already denied the recognizability of the blogger, who was not named, in the disputed text, so that for this reason alone there was no claim for damages. In any case, however, the attacks were covered by the freedom of speech and therefore had to be accepted. The blogger, himself a friend of freedom of speech, was highly satisfied with the reasoning of the Munich judges and lost the application with great joy. For research purposes, the application for injunctive relief was now sent to Berlin, in order to try again the misfortune in the press chamber there (which is also considered to be strict).
With almost the same reasoning, namely the lack of recognizability and freedom of expression, the Regional Court in Koln, which was called upon at the same time, also refused to ie the temporary injunction. The judges of the Kolner press chamber came to this conclusion apparently from their own knowledge, since apparently no protective writing was present there. Once again, the judicially defeated blogger was pleased about the reasonableness of the court and now wanted to address the application to his familiar regular court, which had tormented him so often: Sievekingplatz 1, Hamburg.
In Berlin, where the Munich application was pending in the meantime, there were doubts above all about the recognizability of the blogger, who was not named. Also there freedom of opinion seemed to be known in principle. In any case, however, the protective letter sent by the opponent to several courts was again available there. Instead of simply deciding, as in Munich and Koln, the Berlin press chamber confronted the blogger with the protective letter and loved the lawyers of both parties to exchange ping-pong letters for weeks, in which they vehemently defended and defended the blogger, respectively. against the iance of the requested injunction was disputed. A decision was not reached in Berlin, because mail from Hamburg played a role in this respect.
The blogger received an envelope from Hamburg, in which the temporary injunction ied without comment was found.
Unlike in Munich, Koln and Berlin, the blogger was immediately recognized in Hamburg. The Hanseatic people at Sievekingplatz traditionally do not take too long to interfere with the freedom of speech (although in this case the freedom of speech was indeed stretched a bit too much). Without any question, the application led to the goal, even the protective letter, which was also deposited in Hamburg, was not able to achieve anything.
The Berlin Regional Court, which had been informed of this, ultimately made no decision at all in the matter, but rejected the application, which had been made conditionally in the context of a legal aid application, insofar as "wanton" because an identical application directed against two opponents in two different courts would cause avoidable additional costs – a thoroughly convincing argument, which the blogger acknowledged with a mischievous grin.
The costly lawsuits that the whimsical therapist filed to protect his personal rights and those of his institution were of little use to him in the end. The accusations made against him reached the ears of those responsible, so that he was eventually dismissed without notice; the financial backers of the fundamentally sensible institution were also not amused. Instead of press-legal processes the man led henceforth such in the industrial law, this under active participation of the local press, which had likewise let itself be dazzled before. In the meantime, the authorities were also interested in the strange activities of the litigious man who had been allowed to get away with the most unbelievable things.
Minister of Justice lets fly further
There are no computers on the bench of the Hamburg press chamber. The Internet is perceived and interpreted there by paper printouts made by lawyers. Accordingly, the results are often alien to the worldwideweb, for example, in the attribution of third-party content, while in Karlsruhe they often come to different results. The concentration of Internet jurisdiction at the Hamburg Regional Court due to the flying jurisdiction is definitely not a success story.
At present, Federal Minister of Justice Leutheusser-Schnarrenberger would like to put a stop to the warning industry and, in doing so, also restrict the flying jurisdiction in the area of e-commerce, which is already practiced by some courts and demanded in the legal press. For example, a trader who has been taken for a ride in Internet transactions is also to be fined at his own home or place of residence. The president will still be allowed to sue at the court of his choice, but not at the court of his choice. However, such restrictions have not yet been envisaged for the press law. As before, z.B. the Bishop of Regensburg has his Munich lawyers make a pilgrimage to Hamburg when Regensburg bloggers are to be banned from exercising their freedom of speech.
Ms. Leutheusser-Schnarrenberger could get direct expertise on the Hamburg press chamber from her party colleagues. As much as ex-chancellor Schroder would like to forbid the former opposition politician Westerwelle to talk about his gas business, because this might have put the honorable ex-chancellor in a completely wrong light. By the way, Ms. Leutheusser-Schnarrenberger’s party friends also like to try it in the Hamburg press chamber, although not very successfully. And if it does work out, the Federal Court of Arrest is quite happy to overturn the Hamburg verdicts, which two years ago gave an FDP politician what was certainly a valuable pedagogical experience.
A restriction of the flying jurisdiction also in the press law would not only protect bloggers and media from Hamburg’s gangsterism, but also protect censorship-loving plaintiffs from their own hubris. Individual district courts – including even the Hamburg district court – already consider the arbitrary flying jurisdiction to be inadmissible under the current legal situation. A factual reason why press law should be exempted from the planned restrictions of the flying jurisdiction is not discernible. On the contrary, the Hamburg press chamber is even frequently overloaded, so that "Interlocutory proceedings" could well take half a year to complete. With the abolition of the arbitrary flying jurisdiction in the Internet would be thus all served.
Note: The author has represented the blogger in his experiment by legal counsel.