In the law of speech, the question regularly arises as to whether, in addition to a possible claim for injunctive relief, the requirements for issuing a preliminary injunction are also met. Even if such a claim—for example, based on Sections 1004 of the German Civil Code (BGB) by analogy or Section 823 BGB in conjunction with criminal law provisions—is generally feasible, the issuance of an injunction often fails due to a lack of grounds. The decisive factor here is what is known as “urgency,” as the Koblenz Local Court has once again emphasized in recent rulings from this spring.
Basis: Presumption
Urgency is typically presumed in the context of the right to freedom of expression. The rationale behind this is that statements infringing upon rights can be repeated at any time, particularly if they have been disseminated through the media. This risk of repetition generally justifies swift judicial intervention by way of preliminary injunctions.
Rebuttability
However, this presumption is rebuttable. It does not apply, in particular, if the applicant’s own conduct indicates that the matter is not particularly urgent to them. Such conduct is referred to as “self-rebuttal of urgency.”
Self-rebuttal is generally presumed when the applicant remains inactive for an extended period of time, even though they are aware of both the infringement and the identity of the responsible party, or should have been aware of them without further ado. Case law has developed a general time frame for this purpose.
According to established case law in the jurisdiction of the Koblenz Local Court and the Koblenz Regional Court, a period of approximately one month is generally considered acceptable. Within this period, the applicant may review the matter, seek advice, and respond without the urgency automatically being deemed to have lapsed. However, this is expressly not a rigid deadline.
Rather, a case-by-case assessment is always required. Special circumstances may lead to a shorter waiting period being deemed detrimental to the urgency of the matter. This is particularly the case when the applicant’s conduct as a whole indicates that there is, in fact, no special need for urgency.
An applicant seeking a preliminary injunction must make it clear that the requested legal protection is of particular importance to them. The summary proceedings justify significant encroachments on the respondent’s rights, which is why a consistently expedited approach is expected. This includes the applicant actively pursuing the proceedings and moving them forward without unnecessary delays.
While it is recognized that a reasonable attempt at out-of-court dispute resolution—such as through a cease-and-desist letter or brief settlement negotiations—does not automatically negate the urgency, this is contingent upon such efforts being targeted and conducted expeditiously.
Practice
In local practice, time periods slightly exceeding four weeks may still be acceptable, particularly if they are characterized by serious attempts at reaching a settlement. The decisive factor, however, remains that the petitioner must work continuously and vigorously toward a resolution.
The situation is different if the applicant’s conduct as a whole suggests that they are not treating the matter as urgent. This may be assumed, for example, when applications are filed that indicate a desire for comprehensive resolution in the main proceedings rather than for the short-term protection of rights in summary proceedings.
In such situations, it is generally presumed that the applicant has effectively refuted the claim of urgency. The motion for a preliminary injunction is then inadmissible, regardless of whether a substantive legal claim might exist.
In practice, this means that applicants must take particular care to proceed swiftly and consistently when exercising their right to respond. Even minor delays can—depending on the individual case—result in the denial of access to preliminary injunctive relief.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.