Reporting suspicions or expressing an opinion? What matters before publication

Two articles, two different assessments

In the Wirecard case, a former manager challenged text and photographs published by DER SPIEGEL. On 3 November 2025, the Federal Constitutional Court criticised the reasoning, not merely the result: the evidential requirements for the first article had been excessive. For the second, the meaning and nature of particular statements had been misclassified, paragraphs 47 to 56.

The order set aside the Munich Higher Regional Court’s dismissal of the appeal and remitted the case. It is not a final judgment declaring every passage lawful, much less a determination of criminal guilt. A subsequent conclusion of that particular underlying case has not been verified for this article.

Context determines what a statement means

Under paragraphs 33 and 34, the perspective of an impartial, reasonable average audience is decisive. Individual words must not be detached from their context. Where facts and evaluations are mixed, the question is what characterises the statement and whether separating them would distort its meaning. Article 5 of the Basic Law protects opinions while also recognising limits.

In the second Wirecard article, the court classified certain descriptions of a manager’s proximity to events as value judgments overall. Their factual basis remained relevant to the subsequent balancing exercise, paragraph 56. Our assessment: labelling a statement as a personal opinion does not replace that analysis. Nor does a cautious “possibly” turn every accusation into a mere evaluation; the first article still constituted reporting of suspicions, paragraphs 48 and 49.

The evidence needed when reporting suspicions

The Federal Constitutional Court retains the requirement for a minimum factual basis. The fact that prosecutors are investigating will generally not suffice on its own. Conversely, in complex economic matters, the press cannot invariably be required to establish a likelihood of conviction beyond an initial suspicion before reporting. The research as a whole, the severity of the interference and the public interest in information matter, paragraphs 37 to 39 and 51 to 52.

A later application appears in the Munich Higher Regional Court’s judgment of 31 March 2026, 18 U 3853/25 Pre. An executed arrest warrant, official information and additional documents contributed to the factual basis, paragraphs 26 and 27. The court dismissed the application for an interim injunction against reporting that identified the claimant. This concerned a different dispute, not a verified continuation of 1 BvR 573/25. An arrest warrant does not automatically authorise every disclosure of a name.

Seeking comment and preserving uncertainty remain important

Alongside supporting facts, the Higher Regional Court generally requires an opportunity to comment before publication, reporting that does not prejudge guilt, and a substantial public interest. Any response must be considered and the person’s position made apparent, paragraphs 20 to 24. The established fact of an investigation must be distinguished from the unresolved question of whether the alleged offence occurred.

There is no fixed three-day response period. The court identifies news urgency, the seriousness of the allegation, the scope and complexity of the enquiry and the time needed to respond, paragraph 30. This does not generally permit complex allegations to be sent with an arbitrarily short deadline. Anyone receiving a press enquiry should therefore promptly assess the specific allegations and the time available.

The photograph requires a separate balancing exercise

A lawful text does not automatically make an accompanying photograph of a person lawful. Sections 22 and 23 of the German Art Copyright Act provide for consent as the starting point, specified exceptions and protection of legitimate interests. In the Wirecard order, the Federal Constitutional Court emphasises how the image was obtained, its presentation and possible public shaming, paragraphs 40 to 45. Neutral photographs from a professional context were assessed differently from intrusions into private life, paragraph 59.

What this means for creators, editorial teams and affected people

Our practical recommendation for videos, podcasts and social media posts is to examine the full context first, then the factual basis, and then identification and images. An isolated screenshot often does not adequately capture that context. Earlier content is not automatically part of it; the Federal Constitutional Court requires an apparent reference, paragraph 54. These decisions concern press publications. The standard of care applicable to a particular creator must be assessed separately; the Higher Regional Court expressly distinguishes media from private individuals, paragraph 20.

For a legal assessment, useful material includes complete publications or drafts, links, publication dates, video timestamps, research evidence, press enquiries and responses, and correspondence already received. Whether content should be amended, defended or challenged depends on that material. A contact enquiry does not itself establish a retainer or transfer responsibility for deadlines.