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The threat of criminal charges is often used to enforce payment claims. As we have already reported, this may well be permitted.
However, there are limits to the admissibility of such a threat. These are exceeded if the dissatisfied and at least alleged claimant also threatens to publish the criminal complaint for a fraud offense on the Internet.
Professional retailers, but also private individuals, are often confronted with opinion mongering and campaigns by dissatisfied customers on the Internet, who try to publicly discredit retailers and exert pressure on them in Internet forums, so-called “consumer protection portals” or websites and blogs set up specifically for this purpose.
The Federal Court of Justice uses the term “chantage” for this, which comes from the French “chantager” and means nothing other than blackmail. The BGH may have chosen this term in order to distinguish this type of threat from blackmail under § 253 StGB.
Not infrequently, the behavior that is to be enforced with the threat is even impossible, for example in the form: “Pay by tomorrow, otherwise…!”
In a recent decision of October 21, 2009, which is now legally binding due to a final declaration, the Regional Court of Cologne, Az. 28 O 410/09, prohibited the defendant from threatening the plaintiff with the publication of a criminal complaint against him on the Internet.
The defendant, who had been instructed as a lawyer by a dissatisfied customer to demand repayment of a purchase price, had threatened as follows:
“If you allow this period to elapse fruitlessly, I will file a criminal complaint on behalf of my client, bring an action and publish the criminal complaint on the Internet in the relevant forums.”
Criminal proceedings may be reported on publicly, but only under strict conditions, which were not met here. The publication of an indictment may even be punishable under § 353d StGB. Since the filing of a criminal complaint already leads to the initiation of preliminary proceedings by the public prosecutor’s office, the publication of a criminal complaint therefore already constitutes reporting on such preliminary proceedings. In the present case, the threat was given even greater weight by the fact that the defendant herself was a lawyer.
Among other things, the court ruled on the existence of a reprehensible act of coercion:
“The statements could not be instrumentalized to enforce the actions demanded by the plaintiff. The statements made in the letter of June 5, 2009 to the plaintiff were only made for the purpose of exerting pressure on him by denouncing the plaintiff and by threatening to make the allegations public in a criminal complaint in order to induce him to take the required actions(…).
In particular, the chronological sequence of the two letters shows that the defendant in the injunction had the intention of putting the plaintiff in the injunction under pressure.(…)
The wording of the formulations in the letter dated June 5, 2009 clearly indicates an intention to exert pressure (…)
The statements at issue also constitute acts of coercion within the meaning of § 240 StGB. The conduct of the defendant in the injunction is reprehensible. The reprehensibility of the statements at issue can result from the fundamental priority of state coercive means when enforcing an alleged claim for action. (…) For the fact that one is entitled to take a certain action, such as a truthful publication in the press, does not mean that one may simply threaten another person for the purpose of coercion. This is certainly not the case if there is an inadequacy between the publication and the intended purpose. (…)
Furthermore, the dissemination of an unfounded suspicion is inadmissible coercion (see Wenzel/Burkhard, a. a. O., RN 5.162). Although the plaintiff in the injunction must in principle prove the falsity of the statement of suspicion, this is only the case if the defendant in the injunction has sufficiently substantiated the grounds on which it bases its suspicion. This did not happen in the present case. Although the defendant in the injunction proceedings has submitted the e-mail correspondence concerning Mr. R.’s repayment claim, this does not imply criminal conduct. Rather, this would have required a specific submission that the plaintiff in the injunction was planning or committing a fraudulent receipt or performance.”
You don’t have to put up with threats like that: “Qui exige ou menace, perd tout droit à la courtoisie”. And he also has the law on his side.
Disclosure: Our law firm represented the applicant.
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