Two journalists documented 30 cases of alleged sexual abuse perpetrated by an HIV doctor in Germany; many of the testimonials came from vulnerable gay men who were working in the sex trade or who had only recently immigrated to the country when they sought medical care at the doctor’s clinic. A criminal investigation had been launched against the doctor, who had also pledged not to see patients alone for the time being. The journalists published their findings — only to be forced to take them down. They hadn’t made errors, nor had sources recanted. As Caitlin L. Chandler documents in a feature for Columbia Journalism Review, the reason events transpired as they did is because the doctor, Heiko Jessen, and his attorney, Jony Eisenberg, exploited German media law, which is notably different than America’s:
In criminal trials, German law presumes innocence unless a guilty verdict is handed down by a judge. This is similar to the US legal system; however, in Germany, the presumption of innocence is also applied to press coverage. While the media is allowed to report on criminal trials—which are considered to fall within the “social sphere”—the law protects suspects from media coverage deemed to stigmatize them unfairly before a verdict is reached. For example, the media is rarely allowed to publish photos of someone in custody, unlike the “perp walks” commonly publicized in the US.
Before publishing the Jessen story, BuzzFeed and Vice consulted a German legal doctrine on “suspicion reporting” that outlines four criteria journalists must comply with: the article must make the public aware the person could be innocent; the journalists must have substantial material evidence in addition to reporting that a trial is ongoing; the suspect must have ample time to respond to the allegations, and their response must be included so that the story is balanced; and a person’s name can only be printed if there is an overwhelming public interest.
Eisenberg, clad in a leather jacket, railed against the journalists in a court hearing, calling them liars and muckrackers, and he attacked the alleged victims, emphasizing that they were drug users and sex workers. He won over the judges, who made a ruling on the basis of the “suspicion reporting” doctrine:
The judges said that BuzzFeed had met three of the conditions: it had enough evidence to publish; Jessen had been given adequate time to respond to the allegations; and the case was in the public interest. But on the fourth criterion—the obligation to maintain presumption of innocence—the judges said the journalists had failed. Precisely because the articles had presented such a massive amount of detailed evidence against Jessen, the judges said, no reader could come to the conclusion that he was innocent. The reporting was “not balanced.” They dismissed the consistent inclusion of words like “alleged,” calling such phrasing cosmetic, even though it is widely used by journalists both within and outside of Germany. Finally, the judges took issue with the story’s style, calling the level of detail provided about the assaults “voyeuristic.”
As Chandler details, the legal saga took more turns after that ruling, but the question at the heart of it stayed the same: Was the German legal system doing more harm than good?
