Foundation organ donation must accept critical report of the taz

BGH overturns judgments and rejects injunctive relief

Karlsruhe (jur). The Federal Court of Justice (BGH) in Karlsruhe has strengthened the freedom of expression of the press. He dismissed on Tuesday, April 12, 2016, an injunction of the German Foundation for Organ Donation (DSO) against the "tageszeitung" (taz) from (Az .: VI ZR 505/14).

The taz had reported critically about the DSO in 2012. Among other things, the author reported on the release of a man for donation, although the documents lacked a protocol on the second determination of his brain death. According to the legal requirements, it is one of the prerequisites for organ harvesting that two doctors have independently determined the donor's brain death. "The suspicion was obvious that this second diagnosis was simply forgotten," it said in the article.

The DSO also had a say in it. After that, there was indeed a second diagnosis of brain death; the corresponding protocol could not be found anymore.

According to the Foundation, the allegations in the taz article were therefore wrong. She sued the publisher of the newspaper and the author for omission.

DSO was still successful in the district court and the Higher Regional Court Frankfurt am Main. The BGH had initially approved the revision. Now he lifted the judgments of the lower courts and dismissed the lawsuit. The statements were admissible.

Thus, the article is not claimed that there was only a brain death diagnosis. The fact that the protocol was missing for the second diagnosis was a true fact. The dead man was therefore released inadmissible for organ removal.

That the second diagnosis may have simply been "forgotten" is expressed in the text as a presumption. It concerns a "suspicion assertion with opinion". However, such suspicious reporting is permissible and covered by the freedom of expression if there are sufficient grounds for suspicion and those affected have the opportunity to comment. Both apply here.

Furthermore, the taz author reported on the dismissal of a DSO employee in North Rhine-Westphalia. Reason had been that she had campaigned for an investigation of the case. The DSO also has to accept this, the BGH ruled. The termination was a fact. The statement about the underlying motivation as a "subjective rating" of the author is also covered by the freedom of the press and opinion. (Mwo / fle)