Germany: Nadja Benaissa’s lawyers win injunction to prevent further media reports

Lawyers for No Angels singer, Nadja Benaissa, have sought and won an injunction against Bild, the Berlin-based tabloid that broke the news of her arrest for alleged HIV exposure and transmission, that forbids the paper to run any further stories about her.

Bild has been the primary source of the hundreds of news stories about the case that have so far been published worldwide, including many with inaccurate and stigmatising headlines such as this one from Australia: ‘Popstar ‘deliberately infected partners with HIV’

Earlier today Bild ran an interview (in English) with a man who claims he had unprotected sex with Ms Benaissa without her disclosing her HIV status. It is filed under ‘celebrity gossip’.

A press release issued yesterday (in German, unofficial English translation below) by Ms Benaissa’s lawyer, Christian Schertz, made it clear that her privacy had been grossly violated by the Darmstadt public prosecutor’s office.

The press release of the prosecution is not in accordance with the federal media laws. The media have learned about the arrest of our client through an indiscretion.

Furthermore, the balancing of conflicting interests should have led to the conclusion not to publish an official statement of the charges. Currently, it is only about an ongoing investigation, so that the principle of presumption of innocence must be observed not only by the state, but also by the media.

Against this background, we believe that reporting on this is unlawful, if and as long there are no charges. This is even more true, since the circumstances that are now subject of the accusation go back several years and refer to the privacy of our client. There is no evidence of any kind of current criminal behaviour of our client.

Moreover, to this day, there is no proof whatsoever that our client is responsible for the infection with HIV of another person.

Against this background, and on behalf of our client, we ask you to consider these circumstances. Furthermore we are expecting our client to be released from remand immediately, since there are no reasons for detention. Moreover we believe that remanding our client in custody is an overly proportionate action.

Today, the Berlin District Court issued an injunction against Axel Springer, publisher of Bild, ordering it not to report on the case or use her image, or face a €250,000 fine. It appears that at least some other media in Germany have followed suit – public broadcaster ARD pixellated Ms Benaissa’s face when they reported the injunction on this evening’s news, although RTL have just run a tabloid-style feature that included an interview with a ‘friend’ who said that Ms Bernaissa allegedly was aware of her HIV status even before she auditioned for TV talent show, Popstars, in 2000. Given that she gave birth to a daughter in 1999, it is possible that was she diagnosed, at 17, during routine prenatal screening.

In related news, Germany’s main HIV organisation, Deutsche AIDS Hilfe, yesterday issued a press release (in German, unofficial translation below) some of which has been widely quoted in today’s news stories in Germany.

Marianne Rademacher, spokeswoman of Deutsche AIDS-Hilfe states: “Nadja Benaissa should be released as quickly as possible. According to the information available to us so far her arrest is a disproportionate action of the Hesse judiciary. We urge the media to report objectively about the case and not to prejudge Ms Banaissa. The responsibility for allegedly unprotected sexual intercourse is being pushed towards Ms Benaissa alone, without asking about the co-responsibility of her sexual partners. But the German policy towards fighting HIV/AIDS is considered especially exemplary for acting on the assumption that everyone is responsible for themselves and for its solidarity and its fighting any kind of stigmatisation. The Hessen judiciary obviously want to make an example of her. But the judiciary must not be a protagonist in German HIV prevention.”

Since the 1990s, convictions in the context of HIV transmission have increased. This had implications on the prevention work in the field of HIV/AIDS. But high-profile prosecuting of people with HIV/AIDS can lead to the illusion of the state being in control of the problem. This might lead people to neglect means of precaution (safer sex). Criminal prosecutions will not work as a deterrent in this case. For only a person who knows that he or she is HIV positive can be prosecuted. Criminalising HIV transmission could possibly make people prefer not to get tested, out of the fear of repression. The DAH will continue to act on the assumption of shared responsibility of all parties in consensual sexual contacts. This has been and remains the basis of our work.

Another DAH spokesperson, Jörg Litinschuh, told The Guardian:

This case fits fantastically into the tabloid and media landscape. It centres on a famous woman, sexuality and possible guilt. It’s a form of modern witch-hunting and I hope it’s not an indication that the politics of dealing with HIV and AIDS is becoming more restrictive.”

DAH, and others, are also concerned about the way she was arrested, so publically, prior to performing at a concern in Frankfurt over the Easter weekend. The Darmstadt public prosecutor’s office claims that they had tried to arrest her at home but she was never there, and so picked a time and place that they knew they would find her. The same evening she was arrested, a Frankfurt judge issued a custody order, claiming that she might infect others if allowed to be freed on bail. She is currently being held in a one-person cell in a women’s prison near Frankfurt.

Listening online to an Irish radio chat show on the subject this afternoon, and reading stories and related articles and comments from all over the world, there’s little doubt that Ms Benaissa’s plight has brought the issue of criminalisation of HIV exposure and transmission, and debates around responsibility and disclosure, to centre stage.

Whether Ms Benaissa will benefit from this is unclear.

My concern is that the system may want to make an example out of her, as has been the case with many high profile prosecutions in other countries, despite the possibility of at least some public sympathy, given that she has a large fan base and, as a woman, cannot possibly have final say or control over the use of male condoms.