German court protects political satire in 'fake interview'

Katrin Göring-Eckardt
Heinrich-Böll-Stiftung CC BY-SA 2.0

In August 2022, a German court rejected a politician's claim that a satiric "fake interview" violated her rights.

Attorney Roman Brtka reported on the case for Bird & Bird Munich, and I rely on his report at Media Writes. The case is compelling because the fact scenario, and usually the same outcome, arises periodically in American law from the likes of an Onion "exclusive interview."

The plaintiff in the German case was Katrin Göring-Eckardt of the German Green Party. The defendant was Tichys Einblick (TE), a wide-ranging opinion magazine sometimes identified with right-wing populism. The content at issue was a wholly fictitious interview that mocked Göring-Eckardt's liberal position on pronouns. TE flagged the piece expressly headlined, "Achtung Satire" ("Attention Satire").

Brtka provided a helpful explanation of pronouns in the German language and how they play out in hot-button gender identity politics. The interview employed "extremely exaggerated ... gender-neutral language" to mock Göring-Eckardt.

The plaintiff invoked the German constitutional "right of personality," an outgrowth of broad European privacy law and close cousin of data protection. In this context, the right comes perhaps closest in American tort law to false light invasion of privacy. A better analogy would be a marriage of the right of personal autonomy, as known to medical decision-making in American constitutional law, to the interest of anti-disparagement, as known to trademark law.

The Hamburg regional court concluded, according to Brtka, "that the unbiased and reasonable audience could ... recognise, from the hyperbolic use of gender forms and the exaggerated demands mentioned in the article, that these were not actual statements made by the plaintiff. The mere fact that individual readers might come to a different understanding did not change this." Without any asserted truth, there could be no misrepresentation of the plaintiff's person, so no infringement of the plaintiff's personality right.

Brtka commented that "[i]t remains to be seen" whether the courts would protect satire that is not so plainly labeled, such that the satiric nature must be inferred from the content itself.

TE also reported the outcome of the case.

Unlike TE, The Onion, "America's Finest News Source," is satire through and through, even as it has been sold between media companies with other properties. The Onion's non-satirical supplement The AV Club was always branded distinctively and spun off in 2012. Taken in context, it's very difficult to mistake Onion content as true, though people sometimes infamously do. 

Like the German regional court, American courts, heeding the First Amendment, cut a wide berth for satire, likewise employing objective reasonableness to examine both content and context. Without an assertion susceptible of being proved true or false, there can be no winning claim of false light or defamation.

For satirists, closely related legal problems can arise from real interviews under pretenses the interviewee alleges were false: think Rudy Giuliani in Borat Subsequent Moviefilm. The Borat films and media enterprises such as The Daily Show use releases to help protect themselves. Even a well worded release is not ironclad against a claim that acquiescence was procured through fraud. But whether upon the release or lack of falsity, claims are almost invariably dismissed. The practical problem for plaintiffs is that what the camera captures is true, and the judgment that frames it is merely opinion.

Evidencing American courts' deference to hyperbole, Fox News prevailed in a 2020 lawsuit in part upon the theory that reasonable viewers did not regard the recently newsworthy Tucker Carlson as a source of facts. In 2022, the Sixth Circuit denied recovery to a man who satirized the Facebook page of his local police, and then was charged with and acquitted of a crime. Police were entitled to qualified immunity from the man's civil rights claim, the court concluded. The U.S. Supreme Court denied review amid a set of engaging amicus briefs, including one from The Onion.

Since the E. Jean Carroll verdict against former President Donald Trump, there has been a flurry of commentary suggesting that defamation law is the way out of the misinformation quagmire. It's really not, for a bunch of reasons that are beyond the scope of this post. Relevant here, the understandable thirst for accountability in the misinformation age might push against the traditionally wide berth of protection for satire. Let's hope the courts resist that push, because satire itself is a vital accountability mechanism.

Researcher recounts riveting history of Auschwitz infiltrator

Pilecki before 1939

Witold Pilecki was an officer of the Polish underground in 1940 when he allowed himself to be captured by the Nazis in a civilian roundup and sent to Auschwitz.  The underground sought to document German atrocities in the concentration camps with the aim of spurring the Allies to action.

Assuming a false identity using found papers, Pilecki passed himself off as "Tomasz Serafiński," the commanding officer of the Nowy Wiśnicz region unit of the underground Polish Home Army (Armia Krajowa, or AK).  He remained in Auschwitz for nearly there years and wrote reports for the underground that were smuggled to London and Washington.

At Easter in 1943, Pilecki and compatriots made a daring escape from Auschwitz.  Hunted by the Gestapo, they made their way through the Polish countryside and ultimately found refuge with the real Tomasz Serafiński, his wife, Ludmiła, their children, and their underground network.  Amid their run, the escapees had become suspected by the underground of being German spies.  As he grew close to his unexpected namesake, Serafiński found himself at odds with the AK, ultimately depending on Ludmiła to protect both men against underground suspicion and Nazi hunters.  Pilecki and Serafiński each had a grim fate yet in store.

Pilecki at Auschwitz

This riveting WWII story is the subject of a working research paper, replete with documentary images, authored by Elizabeth M. Zechenter, Ph.D., J.D.: Was it Really a Blind Fate? Interwoven Lives of Witold Pilecki and Tomasz Serafiński, and the Daring Efforts of Ludmiła Serafińska to Save Them Both.   The paper was featured in this month's (Oct. 2019, no. 20) Quo Vadis, the Philadelphia Chapter newsletter of The Kosciuszko Foundation.  The foundation is a New York-city based non-governmental organization dedicated to cultural and educational exchange between the United States and Poland.

Zechenter

By day an assistant general counsel for GlaxoSmithKline, LLP, Zechenter is an accomplished academic researcher (Academia.edu, ResearchGate), her UCLA Ph.D. in evolutionary archaeology, who has taught international law and human rights law at Georgetown University Law Center.  She also is president of the Jagiellonian Law Society (JLS), "a voluntary legal association comprised of a diverse group of professionals (lawyers, judges, law faculty, and law students) who are interested in, or have roots in Polish and Central/Eastern European (CEE) cultures."  She is related to the Serafińskis. 

I was privileged to learn about Elizabeth's work through membership in JLS ("open to any legal professional who shares [JLS] interests and goals") and my work in the Catholic University of America, Columbus School of Law, American Law and LL.M. program with Jagiellonian University (not associated with JLS) in Kraków, Poland, and Washington, D.C.

A la alien tort, German court engages business, human rights case of Pakistan fast fashion tragedy

In 2012, fire ravaged a textile factory in western Karachi, killing 260 and injuring 32.  The fire occurred only hours after a shoe factory fire in Lahore killed scores, and two months before the Dhaka fire in Bangladesh killed more than 100 and injured 200.  The Karachi fire is now the subject of civil litigation in Germany, taking advantage of a federal law that does what human rights advocates would like to see happen—but probably won't—under the U.S. alien tort statute, 28 U.S.C. § 1350.

These recurring factory tragedies have short half-lives in western media, owing to time-honored if callously objective journalistic measures of relevance (e.g., Jacoba Urist in The Atlantic).  But the connection between these deaths and our daily lives in the west runs much deeper.  These deaths represent just one adverse consequence of fast fashion, the global commercial trend that gives us retail clothing at an affordable cost that dramatically undervalues human and environmental externalities.  My friend and colleague Nick Anguelov (Twitter) speaks powerfully on this subject and wrote about it in his 2015 book, The Dirty Side of the Garment Industry (CRC Press, Amazon) (see also Nick at UIA, on this blog).

Claudia Müller-Hoff and Carolijn Terwindt, advocates with the European Center for Constitutional and Human Rights, recently highlighted the German case for the Oxford Human Rights Hub and Law of Nations blogs.  As they explain, a decision is now anticipated on claims in Dortmund by four plaintiffs against KiK, a clothing retailer that was the principal customer of the Karachi factory.  Forensic architects in the U.K., Goldsmiths at the University of London, produced an unsettling and damning video that aided the plaintiff's case, published online two months ago.

A meaningful "win" for plaintiffs came once already in the court's preliminary ruling to admit the case under a German federal law, adopted in December 2016, the "National Action Plan on Business and Human Rights."  The law represented implementation in the EU of the U.N. Guiding Principles on Business and Human Rights, which are, in turn, an instrument of the corporate social responsibility movement and under the umbrella of the U.N. Sustainable Development Goals.

The German law, as reported by Müller-Hoff and Terwindt, states: “Anyone who considers that his or her rights have been infringed in Germany by the actions of an enterprise can make claims before the civil courts.”  The law is heralded as an important advancement for human rights protection in the vein of universal jurisdiction, though it reasonably does require a jurisdictional connection to Germany. 

The KiK case has a parallel in the U.S. alien tort case currently pending in the U.S. Supreme Court, Jesner v. Arab Bank (SCOTUSblog).  Jesner was heard in oral argument in October; see this excellent analysis by Amy Howe.  The dispute in Jesner focuses principally on whether the alien tort statute applies to corporations.  Meant to give U.S. courts jurisdiction over violations of international law, probably to protect commerce, the statute dates to the Judiciary Act of 1789, when corporations and international law were both very different from what they are today.

The U.S. Supreme Court has evidenced reluctance to construe the statute as broadly as its text might suggest in contemporary terms.  Previous case law established that the statute cannot reach a "foreign cubed" case—foreign plaintiff, foreign defendant, and foreign soil—but myriad questions remain.  Since the 1980s, human rights advocates have championed the alien tort statute as an appropriate mechanism to protect human rights abroad.  The WNYC podcast More Perfect did an outstanding episode in October on the history of the statute: Enemy of Mankind.  (Amy Howe also wrote a good summary here.)  For the skeptical view of Jesner's and the statute's viability in this vein, see an excellent op-ed by Professor Samuel Estreicher in the New York Law Journal in January.

There has been some speculation that the Court might duck the corporate liability question in Jesner by ruling instead that the case is foreign cubed.  And there lies the interesting parallel to KiK.  The plaintiffs in Jesner seek to hold Amman-based Arab Bank liable for financing terrorism in Israel and Palestine.  To satisfy the "touch and concern"-the-United-States jurisdictional test, plaintiffs-petitioners rest their case on a rather thin reed: that a U.S. office of the bank had a hand in laundering funds for Hamas.  In Germany, the only link to German jurisdiction is KiK's role as principal buyer from the Pakistani factory. It's hard to imagine such a connection supporting liability in conventional tort analysis in American law; think of Apple's more-moral-than-legal responsibility for working conditions at Chinese Foxconn.

The German law certainly steps out in liability exposure in a way that American law does not permit.  If the alien tort statute is not an appropriate vehicle to effect human rights accountability in the American private sector, and subsequent legislation is not forthcoming, the United States will be increasingly divergent from the EU in relying on market forces alone to ensure corporate social responsibility.  And as Shankar Vedantam of The Hidden Brain reported on NPR, the free market might not cut it.

[UPDATE: On April 24, 2018, the U.S. Supreme Court held, in Jesner v. Arab Bank, 5-4, that foreign corporations may not be held liable under the U.S. Alien Tort Statute.]