German Press Freedom: A Cautionary Tale

US law favors freedom of speech, so it is quite difficult to prove libel in a US court of law.  That has led to individuals filing actions against American writers in foreign jurisdictions, often the UK.  Probably the most famous case of libel tourism Holocaust-denier David Irving's libel trial against US scholar Deborah Lipstadt. Under British libel law, all a plaintiff has to do to claim libel is to demonstrate that the words spoken or written about him are defamatory, and the defendant has to prove the truth of the "defamatory" statement.  So in the case of the Irving trial, the defense had to prove that the Holocaust actually took place (Irving lost).

But the libel laws in Germany are evidently even worse - from the standpoint of the writer - than in the UK. The Sueddeutsche Zeitung published a long piece by the author Roman Grafe recounting his nightmarish ordeal in the German courts for publishing a factual statement in one of his books (HT: Dr.Dean). In 2004 Grafe had published a book about the trials of the East German border guards - Deutsche Gerechtigkeit. Prozesse gegen DDR-Grenzschützen und ihre Befehlsgeber - where he mentioned in half a sentence the name Sven Hüber. Today Sven Hüber is head of personnel for the German Federal Police, but in the GDR Hüber led a border patrol unit that was responsible for the fatal shooting on February 6, 1989 of Chris Gueffroy, the last person to be killed on the inner German border. Sven Hüber and his lawyers demanded the book be romoved from circulation immediately and sued for damages, since under German law Hüber had the right to anonymity. It turns out that Sven Hüber was anything but anonymous, and often sought attention from the media, but, amazingly, the court initially agreed with Hüber and demanded that Grafe and his publishers remove the book, even though he had merely made a factually correct statement about Hüber's activities in the GDR.

The German press was slow to respond to this clear assault on press freedom; evidently they feared costly legal action against them by Hüber and his vitorious legal team. Finally in 2006 a group of German writers - including Walter Kempowski, who spent 7 years in an East German prison - issued an public appeal on Grafe's behalf. One signatory - Lutz Rathenow - pointed out that "without the ability to name names history would be devoid of human beings." Finally in March 2007 the supression of Grafe's book was overturn on appeal by a higher court in Berlin.  The court found that Hüber had not, in fact, "been forced out of anonymity", since he had frequently sought publicity on television and through public speeches.

So the outcome was a happy one for Roman Grafe, but still the case raising some disturbing questions. What it Sven Hüber had not been such a visible personality? Would the court have upheld the book supression?  Does and individual have the right to anonymity when they are part of an unjust - some would say, criminal - enterprise such as the former GDR? What are the implications for invetigative reporting in Germany?

Comments

[Deborah Lipstadt]

My case was not one of libel tourism because my book was published in the UK. Libel tourism occurs when a book is not published there but is bought over the Internet and that is used as a premise for suing the author.

Since in the UK the burden of proof is on the author, someone who never published their book in the UK can suddenly find themsleves force to mount a defense in court or lose the case simply because someone bought their book from Amazon or the like.

My defense team did not set out to prove the Holocaust happened but to prove that David Irving's claims and assertions about the Holocaust are lies and based on inventions, distortions, and mistatements of what the documents or evidence really says it does.

I tell the entire story in History on Trial: My Day in Court with David Irving [Ecco 2006]

[David]

Thanks for clarifying your case, Professor Lipstadt.