Magazin Royale: Schönbohm largely successful in first instance against ZDF

A good two years after an episode of ZDF Magazin Royale described the then President of the Federal Office for Information Security (BSI), Arne Schönbohm, as a security risk, he has now won a partial victory in a legal dispute.

The judges at Munich Regional Court I found that the "Cyberclown" episode of the ZDF magazine show Royale, in which presenter Jan Böhmermann insinuated that the then BSI President Arne Schönbohm was unlawfully close to Russian secret service circles, had made untrue factual claims in four cases that were not covered by freedom of expression.

According to the court, a "generous standard" must be applied to satire. However, four of the five claims challenged by Schönbohm in the program were untrue statements of fact that impermissibly violated personal rights.

ZDF had always emphasized that it had complied with all editorial due diligence obligations. Presenter Jan Böhmermann himself had repeated, even after criticism from experts, that the accusations made against Schönbohm in the program were exaggerated, but true in substance and therefore covered by the freedom of the press and artistic freedom. Böhmermann emphasized on Mastodon that the actions of the interior minister and the ministry were "their beer".

Considerable doubts about the diligence of the production company

The commissioning broadcaster, Zweites Deutsches Fernsehen (ZDF), is responsible for the content of the program. It backed Böhmermann and his production from the outset. However, the judges in Munich had already expressed considerable doubt at the hearing in the summer that the editorial teams of the public broadcaster in Mainz and Böhmermann's Cologne production company had worked carefully.

Böhmermann has already been accused several times of not having worked properly. Some of the criticism of him stems from political motivation, but some is also due to factual concerns. In one case, the ZDF Television Council, on which representatives of social groups sit, decided that a program had to be subsequently removed from the media library.

Schönbohm, on the other hand, was unsuccessful in his claim for at least 100,000 euros in monetary compensation for damage to reputation. The judges saw two reasons why this claim should not be recognized: Firstly, Schönbohm could have used other legal remedies earlier –, such as demanding a correction from the broadcaster or seeking injunctive relief.

The 26th Civil Chamber ruled that monetary compensation against the press was only permissible as a last resort. The decision of the Munich I Regional Court is not final and an appeal to the Higher Regional Court is possible.

Schönbohm is also suing the Ministry of the Interior

The judicial clarification of the question of the extent to which ZDF and Böhmermann's Magazin Royale editorial teams breached their duty of care is only the first part of Schönbohm's attempt to at least somewhat restore his reputation. In the immediate aftermath of the October 2022 broadcast, Federal Minister of the Interior Nancy Faeser (SPD) publicly questioned Schönbohm, who is close to the CDU, and subsequently dropped him and removed him from office.

The proceedings are legally independent of another lawsuit filed by Schönbohm, which is to be heard by the Cologne Administrative Court in January and is directed against the Federal Ministry of the Interior – The BMI accuses Schönbohm of having violated his duty of care for him as a civil servant: Instead of protecting him from untrue and exaggerated allegations, the Faeser-led ministry prohibited him and the BSI from publicly refuting the accusations made by Böhmermann and at the same time did not stand behind the civil servant itself. Schönbohm therefore accuses his employer of having deliberately dismantled him publicly, even though it was clear that the accusations against him were unjustified.

As BSI presidents up to and including Arne Schönbohm were not so-called political civil servants, the BMI was unable to temporarily retire him. After Schönbohm could not be accused of any misconduct despite intensive investigations, he had to be assigned another function in line with his pay grade. Schönbohm was then appointed President of the Federal Academy for Public Administration, where intelligence service employees are also trained. With the change of function, which is possible under civil service law, the BMI also temporarily avoided a judicial clarification just a few weeks after the Böhmermann broadcast. However, the administrative judges in Cologne will be taking very careful note of the examination of the facts by their colleagues in Munich.

(mki)